Forsyth v United Kingdom

introduction 1 In this application, filed on 4 August 2003, the applicant seeks orders which include an order that the hearing of certain extradition proceedings listed for 20 August 2003 (i.e. tomorrow) before a Magistrate be vacated. In those circumstances I propose to give my judgment forthwith. 2 The application is made purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and more appropriately in a jurisdictional sense, under s 39B of the Judiciary Act 1903 (Cth), for review of certain decisions made by Mr R K Black SM on 11 July 2003 in relation to the hearing and determination under s 19 of the Extradition Act 1988 (Cth) of the question whether the applicant is eligible for surrender to the first respondent in relation to certain alleged extradition offences. I shall refer to those proceedings as "the s 19 proceedings". Mr Black is the second respondent to this application. The applicant seeks to challenge the second respondent's decisions not to vacate the hearing which is set down for tomorrow, not to re-list it for hearing at a later date on three consecutive days, and to decline to make an order that the first respondent adduce certain documents listed in a schedule dated 6 July 2003 prepared by the applicant.

factual and procedural background 3 The evidence before the Court to date is as follows. On 25 October 2002 a Magistrate at Perth issued a provisional arrest warrant under s 12(1) of the Extradition Act 1988 (Cth). The applicant was arrested at Boyup Brook on 3 November 2002 and remanded in custody under s 15 of that Act. On 4 November 2002, the applicant appeared in the Bunbury Magistrates Court. He was legally represented, but no bail application was made on his behalf. 4 Since then the applicant has been remanded in custody at the Hakea Prison Remand Centre and elsewhere. On 11 and 12 November 2002 at a hearing before the second respondent in the Perth Court of Petty Sessions in which the applicant was represented by Queen's Counsel, he applied for bail. His Worship declined that application indicating that "special circumstances" had not been made out. The special circumstances referred to, included the applicant's medical condition. The applicant's evidence is that he has been very ill since his arrest, suffering from acute labile hypertension caused by primary aldosteronism. He says that on 10 February 2003 he underwent an operation at Fremantle Hospital and is now on the "semi-urgent waiting list" for a second operation at Royal Perth Hospital involving major surgery. [In his affidavit filed on 6 August 2003 he stated that on 28 November 2002 his application for legal aid was refused. He made no reference to the legal representation which he had previously secured and which, so it appears, he subsequently secured.] Other matters referred to by the second respondent, when refusing bail on 12 November 2002 were that his Worship considered that there was a real risk of flight by the applicant if released on bail. His Worship characterised the applicant's actions as "flight from the UK" and noted that there appeared to have been deception relating to a non-appearance at a police interview in the United Kingdom and a subsequent explanation by his solicitors. The second respondent further noted that the applicant had been in possession of a false French passport as well as a false French driver's licence upon arrival in Australia, both containing photographs of him. The applicant remained in custody. 5 On 11 December 2002 the applicant changed solicitors and appointed Mr Robert Mazza, a partner in the legal firm of Messrs Mazza & Mazza, to act for him. 6 On 13 December 2002 the Minister for Justice and Customs signed a "Notice of Receipt of Extradition Request" under s 16(1) of the Extradition Act. On 16 December 2002 a copy of that notice together with 14 volumes of supporting documents was filed with the Court of Petty Sessions and served upon Messrs Mazza & Mazza. 7 The notice of receipt of extradition request stated that an extradition request had been received from the United Kingdom in relation to two counts of fraudulent trading, contrary to s 458 of the Companies Act 1985 (UK), one count of breach of trademark contrary to s 92 of the Trade Marks Act 1994 (UK), one count of breach of copyright contrary to s 107 of the Copyright Design and Patents Act 1988 (UK), two counts of obtaining a pecuniary advantage, contrary to s 16(1) of the Theft Act 1968 (UK) and three counts of furnishing false information, contrary to s 17(1)(b) of the Theft Act. 8 On 8 January 2003, two additional volumes of supporting documents were filed at the Perth Court of Petty Sessions and served on the applicant's lawyers, Messrs Mazza & Mazza. 9 On 7 February 2003, through counsel, the applicant asserted in the Perth Court of Petty Sessions that his medical condition had deteriorated in custody. A renewed bail application was set down for 28 February 2003 and a hearing date for the purposes of determining under s 19 of the Extradition Act whether the applicant was eligible for surrender, was set down for hearing on 3 and 4 April 2003. 10 In these extradition proceedings the Commonwealth Director of Public Prosecutions acted for the first respondent. The Commonwealth Director of Public Prosecutions obtained medical reports from the Ministry of Justice Prison Health Service and from an independent renal specialist and filed and served those reports for the purposes of the renewed bail hearing on 28 February 2003. On 27 February 2003 Mr Mazza withdrew the application for a renewed bail hearing. 11 On 14 March 2003, a further bail application on medical grounds was made on the applicant's behalf in the Perth Court of Petty Sessions. That application was later discontinued. 12 On 24 March 2003, the Commonwealth Director of Public Prosecutions was advised by Mr Mark Gunning, a partner in Messrs Gunning & Young, that his firm had been appointed to act for the applicant. Mr Gunning successfully applied to have the hearing dates of 3 and 4 April 2003 vacated. A fresh hearing date of 25 June 2003 was fixed for the s 19 proceedings. The Magistrate making that order (not the second respondent) ordered that written submissions be filed and served no later than 11 June 2003. 13 On 13 May 2003, Messrs Gunning & Young advised the Commonwealth Director of Public Prosecutions that they were no longer acting for the applicant. Mr Kevin Burgoyne appeared for the applicant in the Perth Court of Petty Sessions that day. Mr Burgoyne is a barrister and solicitor. Mr Burgoyne applied unsuccessfully to vacate the hearing date of 25 June 2003. 14 On 3 June 2003 a further volume (volume 17) of supporting documents was filed at the Perth Court of Petty Sessions and served on Mr Burgoyne. 15 On 5 June 2003, Mr Burgoyne advised the Commonwealth Director of Public Prosecutions that he had briefed Mr Aughterson, a barrister in Darwin, in relation to the case. 16 On 11 June 2003, the Commonwealth Director of Public Prosecutions filed the first respondent's submissions in relation to the s 19 hearing and served a copy of that document on Mr Burgoyne on 12 June 2003. An annexure to that submission had been omitted in the copy provided to Mr Burgoyne on 12 June 2003, but was served on him on 16 June 2003. 17 On 20 June 2003, Mr Burgoyne advised the Commonwealth Director of Public Prosecutions that he no longer acted for the applicant and that the applicant would represent himself at the s 19 hearing on 25 June 2003. Mr Burgoyne said that the 17 volumes of supporting documents had not been passed to his former client as they were still in Darwin with Mr Aughterson, and he was not in funds to cause them to be returned to Perth. 18 At the hearing this afternoon the applicant gave explanations for the history of his changed legal representation and told me that he was now legally unrepresented because he had run out of funds. I have no means of assessing the correctness or otherwise of those explanations which were given in oral address from the bar table. 19 On 24 June 2003, the Commonwealth Director of Public Prosecutions supplied to the applicant another copy of the submissions and annexures and on the next day gave to him the 17 volumes of supporting documents. 20 On 25 June 2003 the applicant successfully applied to the second respondent for the hearing date to be vacated on the basis that he had not had reasonable time to prepare for the conduct of the proceedings: s 19(1)(d) of the Extradition Act. A new hearing date was set down for 20 August 2003. 21 On reviewing the documents which the Commonwealth Director of Public Prosecutions had served on him, the applicant apparently formed the view that there was a large number of other documents which were specifically referred to in the documents served on him which should be put before the second respondent. I shall refer to those further documents as "the Further Documents". As the applicant knew, s 19(5) of the Extradition Act relevantly provides that the applicant in this matter is not entitled to adduce, and the Magistrate is not entitled to receive, evidence in the s 19 proceedings to contradict an allegation that he has engaged in conduct constituting an extradition offence for which his surrender is sought. 22 The applicant prepared a schedule of the Further Documents, being the schedule dated 6 July 2003 to which I have referred. On 11 July 2003 he appeared before the second respondent and sought a direction from him that the first respondent should put the Further Documents before the second respondent as part of its case in the s 19 proceedings. He also sought an order that the proceedings not take place on 20 August 2003, but be adjourned and listed for three days of hearing. 23 The applicant told the second respondent that it was impossible for him to give due and fair consideration to the allegations made against him or to respond to certain of those allegations if the Further Documents were not adduced in evidence before the second respondent by the first respondent. Without the Further Documents, the applicant claimed that he would be prejudiced in arguing that there was not, as he put it, a prima facie case. 24 In relation to the adjournment sought, the applicant submitted to the second respondent that in light of the 17 volumes of material, there would not be sufficient time to deal with the matter on one day and that three days should be set aside. He contended that it would be highly prejudicial to him to have one day of hearing and then have the proceedings adjourned to another day thereby risking "losing the thread". At the time of making that submission the applicant (so the transcript reveals) acknowledged the difficulty, some weeks previously, of even getting one day for the hearing of the proceeding before November 2003. Counsel for the first respondent gave his view that the s 19 hearing might well run for less than one day and that if it did not do so, and had to be adjourned, then this was something which happened all the time. If possible, a start should be made rather than delay the matter beyond November 2003. As to production of the Further Documents, counsel informed the second respondent that the first respondent did not intend to rely upon the material in the applicant's list. 25 In ex-tempore reasons, the second respondent refused to make the direction in relation to the Further Documents. He expressed the view that failure on the first respondent's part to produce those documents would not work any unfairness. His Worship said that he was not sure why the documents were said to be necessary. As he understood it, the applicant (i.e. Mr Forsyth) was arguing that without the Further Documents there could not be sufficient evidence to find that he was eligible for extradition. His Worship reasoned that, if that were so, any prejudice would flow to the first respondent, not to Mr Forsyth. It would appear that his Worship may have misunderstood the applicant's arguments which were, in essence, that in the absence of the Further Documents a false picture would be created in relation to the prima facie case which s 11(5)(b) and the relevant Regulations require the first respondent to establish. 26 As to the matter of the adjournment, the second respondent referred to the fact that the matter had been proceeding for some considerable period of time and two previous hearing dates had been adjourned. He was unable to say whether the s 19 hearing would be completed in one day. His Worship acknowledged that if it had to be completed on another, non-consecutive, day that would not be the most satisfactory method, but that at least a start should be made. He declined to vacate the hearing date fixed for tomorrow.