Heslehurst v Government of New Zealand

Jurisdiction 12 As is mentioned above, the application in this proceeding claims an order pursuant to s 39B of the Judiciary Act quashing the indorsement by the third respondent on the warrant dated 26 May 1999. It is not clear on what basis the jurisdiction of the Court under s 39B of the Judiciary Act is invoked. Section 39B of the Judiciary Act does not expressly authorise the Court to make an order quashing an indorsement made under s 28 of the Act. The application does not seek "a writ of mandamus or prohibition or an injunction … against an officer or officers of the Commonwealth" (s 39B(1)). However, the Court has jurisdiction under s 39B(1A) of the Judiciary Act "in any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter". This jurisdiction extends to the making of declarations as to the proper construction of the Act (Bertran v Vanstone (FC) [1999] FCA 1117). The respondents did not challenge the jurisdiction of the Court to entertain the application to the extent that it was purportedly made under s 39B of the Judiciary Act. In the circumstances I consider it appropriate to consider whether the magistrate was authorised by s 28 of the Act to make an indorsement on the warrant dated 26 May 1999.

A New Zealand Warrant 13 The applicant challenges the s 28 indorsement on the warrant on the basis that, as he contends, the warrant is not a "New Zealand warrant" within the meaning of the Act as it is not "a warrant that purports to be issued by a court, a judge, a magistrate or an officer of a court, of New Zealand" (s 5 of the Act). 14 The warrant on which the magistrate made an indorsement under s 28 of the Act is headed: "WARRANT TO ARREST IN SUMMARY PROCEEDINGS (Section 19(1)(c) - Summary Proceedings Act 1957) (Where issued by a District Court Judge)" The warrant is directed to "Every Constable". In the body of the warrant it is recited that: "On the 16th December 1996 informations were laid that Maxwell John Heslehurst of Flat B, 17 Moana Place, Mangere Bridge (hereinafter called the defendant) at Auckland on 20th August 1996 With Intent to defraud by a false pretence …." The warrant concludes: "AND I DIRECT YOU to arrest the defendant and bring him before a District Court as soon as possible to answer to the informations. Dated at Auckland this 26th day of May 1999.

J CADENHEAD District Court Judge." 15 Katz J gave consideration to the circumstances in which a document will "purport" to be of a particular character in Bennett v Government of the United Kingdom [2000] FCA 916 at paras 31-38. His Honour acted on the basis that the word "purports" in s 19(7) of the Act has the meaning "to profess or claim" so that a document is only authenticated within the meaning of that subsection on the basis that "it purports to be … certified by a judge, magistrate or officer" if it professes or claims to have been so certified. I consider that for the purpose of s 19(7) of the Act the word "purports" in the statutory definition of "New Zealand warrant" is used in the same sense as that adopted by his Honour. 16 It is therefore necessary to determine whether the warrant on which the magistrate made an indorsement under s 28 of the Act is a warrant that professes or claims "to be issued by a … a judge … of New Zealand, being a warrant for the arrest of a person accused … of an offence against the law of New Zealand". 17 The warrant plainly professes or claims to be issued by a judge, namely J Cadenhead, District Court Judge. Does it profess or claim to be issued by a judge of New Zealand? The words "New Zealand" do not appear on the warrant. However, the terms of the warrant indicate that it was issued "at Auckland". The applicant gave evidence that there is a place called "Auckland" in the State of Montana, in the United States of America and another in Holland. I accept that this may be so, but I conclude that they must be places of minor significance. Extracts from the Britannica Atlas and The New International Atlas published by Collins were received in evidence. The index to each of these atlases records only one place named simply "Auckland". For completeness I note that the indices record also "Auckland Islands", "Auckland Park" and "Auckland Park Race Course". The references to "Auckland" in the indices are shown by the page reference and positional information given in each case to be references to a major city in the North Island of New Zealand. 18 I am satisfied that the warrant professes or claims to have been issued in Auckland by a District Court Judge. Having regard to the extracts from the two atlases referred to above which, in my view, confirm that a reference to "Auckland" in an official document relied upon in Australia is almost certainly a reference to Auckland, New Zealand, I am satisfied that the warrant purports to be issued by a judge with authority in New Zealand. In my view, this is sufficient to support a finding that the warrant purports to be issued by a judge of New Zealand. 19 Evidence was placed before me, in the form of an extract from the New Zealand Gazette, of the appointment of John Cadenhead, barrister of Christchurch, "to be a District Court Judge to exercise civil and criminal jurisdiction in New Zealand". In view of my above conclusion, it is not necessary for me to determine whether it would be proper for this evidence to be taken into account for the purpose of determining whether the warrant is a "New Zealand warrant" within the meaning of the Act. However, I incline to the view that it would be. 20 It seems to me that the words "that purports to be" in the statutory definition of "New Zealand warrant" qualify only that part of the definition which is concerned with the issuing of the warrant in the sense of its provenance. On this basis, it is necessary that the warrant be "a warrant for the arrest of a person accused … of an offence against the law of New Zealand". The direction at the foot of the warrant is plainly sufficient to establish that it is "a warrant for the arrest of a person". The recital in the body of the warrant concerning the laying of informations against the person whose arrest the warrant directs is sufficient, in my view, to establish that the warrant is for the arrest of a person accused of an offence. The heading of the warrant refers to the Summary Proceedings Act 1957. It is not reasonably open to question (and was not questioned in this proceeding), and is capable of verification by reference to authoritative publications of the Government of New Zealand, that there is a statute of the Parliament of New Zealand with the short title Summary Proceedings Act 1957 (s 144 of the Evidence Act 1995 (Cth)). Further, for the reasons given above, I am satisfied that the reference to the conduct said to constitute the offences, being conduct "at Auckland", is sufficient to show that the conduct said to constitute the offence was conduct in New Zealand. For these reasons I am satisfied that the warrant is "a warrant for the arrest of a person accused … of an offence against the law of New Zealand." 21 The failure of the warrant expressly to state that it is a New Zealand warrant is presumably explicable on the basis that it is in the usual form of a warrant for domestic use in New Zealand. The provisions of Part III of the Act are intended to facilitate the ready movement of fugitives between Australia and New Zealand with limited formality. For this reason, it seems to me to be unlikely that the legislature intended that an unduly formal approach should be taken in respect of proof that a warrant is a "New Zealand warrant".

Information by affidavit 22 Section 28(b) of the Act requires that a magistrate to whom an application is made under the section for the indorsement of a New Zealand warrant be "informed by affidavit that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia". In this case, the affidavit by which the magistrate to whom the application was made was informed that the applicant was in Australia, was taken and sworn before that magistrate. His worship presumably relied for this purpose on his deemed appointment as a justice of the peace (s 12(3) of the Local Courts Act 1982 (NSW)). The applicant submitted that it was irregular for the magistrate to both take the affidavit and inform himself from it contents. In my view this submission is without merit. Nothing in the language of the section requires that the affidavit be sworn before a person other than the magistrate to whom the application is made. No legal principle suggests that the section should be construed so as to require this course to be adopted. It is entirely commonplace for persons required to act judicially to take the oath of a person whose evidence they are required to evaluate. Judicial officers do so daily in the courts of Australia.

Nature of the Right of Review under SECTION 35 OF the Act 23 As the right to apply to the Court for a review of the magistrate's order is a remedy given by the Act, the nature of that right must ultimately depend on the terms of the Act (Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 273-274). 24 In Kenneally v New Zealand at para 4 the Full Court said: "The evidence relied upon before the magistrate on 18 March 1999 in support of the making of the orders under s 34(1) was not tendered on review in the Supreme Court. Proceedings for review pursuant to s 35 of the Act are by way of rehearing de novo. Accordingly, there was no need, on review, for any consideration to be given to the evidence relied upon before the Local Court. Nor, it should be added, has that evidence been placed before this court." 25 In the same case at para 11 the Full Court said: "A review under s 35 is to be 'by way of re-hearing', and the court may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate: s 35(6)(d)." 26 The terms of s 35(6)(d) suggest that the rehearing before the Court is a rehearing as at the date of the review of the magistrate's order. That is, that the Court is required to determine for itself the rights of the parties as disclosed by the evidence before it having regard to the law as at the date of the review. This is, it seems to me, the construction of s 35(6)(d) adopted by the Full Court in Kenneally v New Zealand. See also Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621. 27 As is mentioned above, in Kenneally v New Zealand the Full Court described proceedings for review under s 35 as a "rehearing de novo". I understand their Honours to have meant thereby that the powers of the Court are not exercisable in the proceedings for review only where error by the magistrate can be demonstrated; rather the Court is to determine itself what order is appropriate to be made regardless of whether error by the magistrate is demonstrated (see Allesch v Maunz [2000] HCA 40 at para 23). It seems that the Full Court did not intend to imply that the review was a hearing de novo in the strict sense of a complete re-running of the proceeding under s 34 before this Court as though the hearing before the magistrate had not taken place. Even in a case in which New Zealand applied to the Court for a review of the order of the magistrate, on a hearing de novo in this strict sense, the person whose surrender to New Zealand is sought would have to start again and seek to satisfy the Court of the matters specified in s 34(2) of the Act. 28 In my view, the discretion given to the Court by s 35(6)(d) to "have regard to evidence in addition to or in substitution for the evidence that was before the magistrate" suggests against the review hearing being a hearing de novo in the strict sense which I have identified. It is appropriate, in my view (and I do not understand the Full Court in Kenneally v New Zealand to have suggested to the contrary), for an application for review to identify the grounds upon which the applicant says that the order of the magistrate should be quashed and, in the absence of special circumstances, for the consideration of the Court to be limited to those grounds. 29 Unless in a particular case there was good reason not to do so, it would ordinarily be expected, in my view, that the evidence before the magistrate would be placed before the Court. Ordinarily, in my view, the applicant for review would be expected to address the Court first in an endeavour to persuade the Court that the order of the magistrate should be quashed. The fact that the rehearing involves consideration of the law and the facts as at the date of the review indicates that there will be cases in which a proper exercise of the Court's discretion to receive evidence in addition to or in substitution for the evidence that was before the magistrate will require the receipt of such evidence. This does not mean, however, that the Court is not free in any case, in the proper exercise of its discretion, to receive evidence in addition to or in substitution for the evidence that was before the magistrate. That this can be done is clearly illustrated by Kenneally v New Zealand.

Parties to a Review under Section 35 of the Act 30 The magistrate who conducted the proceeding under s 34 of the Act has been named as a party to this proceeding. It is not necessary, in my view, for the magistrate to be joined as a party to a proceeding for review under s 35 of the Act. Such a course was apparently not adopted in Kenneally v New Zealand. Katz J doubted the correctness of the joining the magistrate as a party in Bennett v Government of the United Kingdom [2000] FCA 916 at para 2. His Honour referred to observations of Gummow J in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 543-544. The terms of ss 34 and 35 of the Act make it plain, in my view, that the parties to the proceeding before the magistrate under s 34, and to the review under s 35, are the person whose surrender to New Zealand is sought and "New Zealand".

CONSIDERATION ON REVIEW UNDER SECTION 35 OF THE ACT 31 As the applicant was not legally represented before the Court, I have considered it appropriate to review all aspects of the decision of the magistrate whether or not they have grounded complaints by the applicant.

An indorsed New Zealand warrant 32 The power of the magistrate to make an order under s 34 of the Act was in the circumstances of this case dependent upon the applicant being "remanded after being arrested under an indorsed New Zealand warrant". It is not in dispute that the applicant had been remanded in custody under s 32 of the Act following his arrest under the warrant dated 26 May 1999. Section 5 of the Act defines an "indorsed New Zealand warrant" as "a New Zealand warrant that has been indorsed under section 28". I have concluded above that the warrant dated 26 May 1999 is a "New Zealand warrant" within the meaning of the Act. Section 28 provides for the magistrate to make an indorsement on such a warrant "in the statutory form". Section 5 of the Act provides that the "statutory form" in relation to an indorsement means the form of the indorsement set out in the regulations. The form of indorsement of a New Zealand warrant under s 28 of the Act is, by reason of reg 3 of the Extradition Regulations 1988 (Cth), that set out in Form 17 of the Schedule to the regulations. The warrant pursuant to which the applicant was arrested is in evidence. It bears an indorsement in the form of Form 17 of the Schedule to the Extradition Regulations 1988 (Cth).

A magistrate in respect of whom an arrangement is in force under s 46 of the Act 33 I consider that either ss 143 or 144 (possibly both) of the Evidence Act 1995 (Cth) authorises me to inform myself of the fact that the Governor-General has made an arrangement with the Governor of New South Wales that "all or any of the persons who from time to time hold office as Magistrates of the State of New South Wales may perform the functions of a Magistrate under the Act" (Commonwealth of Australia, Special Gazette No S 366, Wednesday, 30 November 1988). In the circumstance that no challenge was made to the authority of the magistrates to perform functions under the Act, I do not consider that either party is unfairly prejudiced by not being expressly given an opportunity to make submissions or to refer to relevant information on this issue.

Unjust, oppressive or too severe a punishment to surrender the person to New Zealand 34 By his application, the applicant claims that the "magistrate erred in finding that she was not satisfied that there were substantial grounds for believing that there was an extradition objection in relation to the offence". Section 34 of the Act makes no reference to an "extradition objection". Section 19(2)(d) of the Act, which is contained in Part 2 of the Act dealing with extradition from Australia to extradition countries, is concerned with "extradition objections". The nearest equivalent to the statutory concept of an "extradition objection" in s 34 is provided by s 34(2) of the Act which is set out in para 11 above. Before the magistrate, the applicant carried the onus of satisfying the magistrate that "it would be unjust, oppressive or too severe a punishment to surrender [him] to New Zealand". Before this Court on review he similarly carries that onus. 35 In New Zealand v Venkataya, Sackville J gave consideration to the meaning of the words "unjust" and "oppressive" as used in s 34(2) of the Act. His Honour said (at 165): "The words 'unjust' and 'oppressive', as used in s 34(2) of the 1988 Act, are directed at two concepts that address rather different issues, although they overlap to some extent. As stated by Olsson J in Perry v Lean (at 537): 'The former primarily (but not exclusively) concerns itself with the risk of prejudice to the accused in relation to the conduct of a proposed trial. The latter is more related to hardship to an accused resulting from changes in his or her circumstances that have occurred during the period to be taken into consideration. However there is room for overlapping and between them the two concepts cover all cases where to return the accused would, in the whole of the circumstances, simply not be fair.' Although a dissenting judgment, his Honour's observations were not at odds with the legal principles adopted by the majority: see Edmonds v Andrews (1987) 85 FLR 419 at 421. See also Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782-783; [1978] 2 All ER 634 at 638-639." 36 The applicant did not seek to satisfy the Court of any of the matters referred to in paragraphs (a), (b) and (c) of s 34(2) of the Act. Having regard to all the evidence before me, I am not satisfied of any of those matters. 37 The applicant contended that he is unfit to travel to New Zealand and that, in effect, it would for this reason be oppressive to surrender him to New Zealand. I gave careful consideration to evidence concerning the applicant's health when determining his application for bail (Heslehurst v Government of New Zealand [2000] FCA 937). The evidence relied on for the purposes of that application was before the Court again on the present review. Some additional evidence was also received. I will not repeat here the analysis of the evidence touching on the applicant's health which I made in my earlier reasons for judgment. That evidence satisfied me previously, and it continues to satisfy me, that the applicant is in seriously poor health. He suffers from hypertension, diabetes, respiratory problems and a sleep disorder. His morbid obesity makes his conditions treatment resistant. 38 On the present review, an affidavit sworn by Dr Lorant Joseph Varga of the New South Wales Corrections Health Service was read. In his affidavit Dr Varga expresses the opinion that the applicant is fit to travel by air from Sydney to New Zealand. For reasons which I expressed during the course of the hearing, and which I do not consider it necessary to repeat here, I have concerns as to the process by which Dr Varga's affidavit came to be sworn. I am willing in the circumstances to give little weight to the opinion expressed by Dr Varga. 39 An affidavit sworn by Mr Simon John Lowe, Air New Zealand Reservations Sales Manager, Sydney was also read on this review. It is Mr Lowe's responsibility to make arrangements for passengers suffering a medical condition who are required to travel. He gave evidence that a passenger with a medical condition is required to complete a "medical fitness for air travel" form which includes a certificate to be given by the passenger's doctor that the passenger is fit to travel. Mr Lowe also gave evidence that the flight from Sydney to Auckland is of three hour's duration and that the facilities able to be provided to passengers include oxygen during the flight, wheelchair assistance to and from the aircraft and assistance in leaving the aircraft, proceeding through customs and baggage collection. 40 Although, as I have mentioned, I am satisfied that the applicant is in seriously poor health, he has not satisfied me that his health is such that it would be oppressive to surrender him to New Zealand. Although it seems likely that there could be occasions on which the applicant's health would render him unfit to travel, nothing before me suggests that he would ordinarily be unfit to endure a three hour flight. The procedures of which Mr Lowe gave evidence would be likely, in my view, to ensure that the applicant would only be carried on a flight to New Zealand if a medical practitioner were satisfied as to his fitness do so at that time. He could receive oxygen if he were to experience respiratory problems during the flight. I am not satisfied that the applicant's health is such that it would be "unjust, oppressive or too severe a punishment" to surrender him to New Zealand. 41 The applicant also contended that: "The conduct of [New Zealand] in proceeding three times with execution of extradition warrants involving the same matter and then abandoning the venture twice and now attempting to proceed on a faulty warrant is oppressive." 42 I accept the evidence of Mr William O'Neale, Federal Agent, as to the circumstances in which the applicant has been arrested on extradition warrants. 43 On 17 May 1999 Mr O'Neale arrested the applicant on an indorsed New Zealand warrant dated 6 January 1997 ("the 1997 warrant"). The applicant was at the time of this arrest a patient at Prince of Wales Hospital, Randwick in the State of New South Wales. He was arrested immediately following his release from the custody of the New South Wales Corrective Services. Mr O'Neale remained with the applicant in the hospital. Approximately two hours later Mr O'Neale received advice that the 1997 warrant had been executed on 16 January 1997. He immediately released the applicant from his custody. 44 Mr O'Neale was subsequently informed by an officer of the Commonwealth Director of Public Prosecutions that the proceedings against the applicant following his original arrest under the 1997 warrant were discontinued on 29 January 1997 in Parramatta Local Court. It appears that the proceedings were discontinued at that time to allow the applicant to be dealt with on charges laid by the New South Wales Police for offences of dishonesty under the Crimes Act 1900 (NSW). The applicant was ultimately convicted of offences under the Crimes Act 1900 (NSW) and sentenced to a term of imprisonment. 45 The applicant has argued that a proceeding under s 34 of the Act cannot be discontinued. It is not necessary for me to decide this question. There is no evidence before me that a request was made to a magistrate under s 34 of the Act following the applicant's first arrest on the 1997 warrant. More importantly, for the purpose of determining whether it would be unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand, the important consideration is what has happened to the applicant rather than the technical legality of what has happened to him. The position may be different if it were shown that a lack of bona fides attended the earlier conduct by New Zealand, or possibly, the Australian Federal Police. 46 On 3 June 1999 the Australian Federal Police received a further request from New Zealand to assist in the extradition of the applicant to New Zealand. The warrant dated 26 May 1999 was provided to the Australian Federal Police by New Zealand. As is mentioned above, on 23 June 1999 a magistrate of the State of New South Wales made an indorsement on the warrant dated 26 May 1999. Upon his release from custody at the conclusion of his term of imprisonment for the offences committed under the Crimes Act 1900 (NSW) the applicant was arrested under this indorsed warrant. 47 I am not satisfied that the applicant has suffered hardship by reason of having been arrested more than once on an indorsed warrant in respect of the same accusations of having committed offences against the law of New Zealand. For this reason I am not satisfied that, on this ground, it would be oppressive to surrender him to New Zealand. Nor do I consider that it has been shown that it would now be unjust to surrender him to New Zealand by reason of his having been arrested in the circumstances outlined above, or that such surrender would constitute in the circumstances too severe a punishment of the applicant whether by reason of the time that he has spent in custody in Australia or otherwise.

CONCLUSION 48 For the reasons set out in paras 13-22 above, to the extent that the applicant seeks relief under s 39B of the Judiciary Act his application must be dismissed. On his application for review of the order of the magistrate under s 34(1)(c) of the Act, the order of the magistrate must be confirmed.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 15 September 2000 The applicant appeared in person

Solicitor for the Respondent: Commonwealth Department of Public Prosecutions

Date of Judgment: 15 September 2000