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[2001] FCA 1889
Federal Court of Australia
2001-12-20
Branson J, Lindgren J
Original judgment source is linked above.
introduction 1 The applicant, Maxwell John Heslehurst ("Mr Heslehurst"), who is not legally represented, applies for an order releasing him from custody under subs 38(7) of the Extradition Act 1988 (Cth) ("the Act").
factual and legislative background 2 It will be convenient if I commence the account of the factual background by referring to a surrender warrant issued under subs 34(1) of the Act on 23 March, 2000. That warrant was issued by Magistrate Orchiston, a Magistrate of the Local Court of New South Wales. It was directed to all police officers within the meaning of the Act and also to "Detective Joel Carson of the New Zealand Police" (in the warrant called "the New Zealand escort officer"). 3 The warrant recited that Mr Heslehurst had been remanded after being arrested under an endorsed New Zealand warrant for intent to defraud by false pretences and that a request had been made to Magistrate Orchiston on behalf of New Zealand for proceedings to be conducted under s 34 of the Act. The warrant authorised the police officers to take Mr Heslehurst into custody and to transport him in custody, and, if necessary or convenient, to detain him in custody for the purpose of enabling him to be placed in the custody of the New Zealand escort officer and transported out of Australia. It also authorised the New Zealand escort officer to transport Mr Heslehurst in custody out of Australia to a place in New Zealand for the purpose of surrendering him to a person appointed by New Zealand to receive him. As will appear later, it is important for present purposes that the New Zealand escort officer was Detective Carson and no other. 4 Mr Heslehurst brought proceeding N 301 of 2000 in this Court against the Government of New Zealand seeking review by the Court of Magistrate Orchiston's decision of 23 March 2000. On 15 September 2000 Branson J ordered that his application be dismissed and that the order of Magistrate Orchiston that Mr Heslehurst be surrendered to New Zealand be confirmed ([2000] FCA 1311). Mr Heslehurst appealed against her Honour's orders to a Full Court and on 12 March 2001 the Full Court ordered that the appeal be dismissed ((2001) 109 FCR 226). 5 Mr Heslehurst applied for special to appeal to the High Court of Australia against the Full Court's order. On 4 October 2001 his application for special leave to appeal was deemed abandoned for his non-compliance with certain High Court rules. 6 The date 4 October 2001 assumes significance in the present proceeding. In order to explain why, I must refer to provisions of the Act. 7 Section 38 of the Act provides that a surrender warrant must authorise a police officer to take the relevant person into custody, to transport the person in custody, and, if necessary or convenient, to detain the person in custody for the purpose of enabling him or her to be placed in the custody of a specified person (referred to the in Act as "the New Zealand escort officer") and transported out of Australia. The section provides that a surrender warrant must also authorise the New Zealand escort officer to transport the person in question in custody out of Australia to a place in New Zealand for the purpose of surrendering the person to a person appointed by New Zealand to receive him or her. Subsection 38(2) provides that subject to s 38 a surrender warrant shall be executed according to its tenor. 8 It will be noted that the requirement that a surrender warrant be executed according to its tenor is expressed to be subject to s 38. Subsection 38(3) provides that a surrender warrant issued under par 34(1)(c) of the Act (the surrender warrant in present case was issued under that provision) must not be executed while any proceedings under s 35 of the Act in relation to the order of the magistrate set out in the warrant are being conducted or are available. Section 35 provides for review of an order made by a magistrate under, inter alia, par 34(1)(c). I need not set out the scheme of s 35. It suffices to note that there is reference in the section to an application for special leave to appeal to the High Court against an order of a Full Court of this Court made on an appeal of the kind which was brought by Mr Heslehurst in the present case. 9 It seems, therefore, and the contrary has not been suggested, that one effect of subs 38(3) is that the surrender warrant in respect of Mr Heslehurst was not to be executed while his application for special leave to appeal to the High Court was being conducted or was available. In substance, the surrender warrant could not be executed until Mr Heslehurst's application for special leave was deemed abandoned on 4 October 2001. 10 Subsection 38(7) provides, relevantly, that where a person is in custody in Australia under a surrender warrant issued in relation to him or her more than one month after "the day on which the warrant was first liable to be executed" and the person applies to this Court, and reasonable notice of the intention to make the application has been given to the Attorney-General, the Court must, subject to subs (8), order that the person be released from that custody. 11 On the basis that the warrant in respect of Mr Heslehurst was first liable to be executed on 4 (or perhaps 5) October, Mr Heslehurst was in custody in Australia under the surrender warrant for more than one month after that day by the time when, on 14 December 2001, he commenced the present proceeding. 12 Subsection 38(8) provides that where the Court is satisfied that the person in custody has not been conveyed out of Australia under the warrant within the one month period: "(a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or (b) for any other reasonable cause; the Court shall not order that the person be released from custody." In the present case, the respondent, the Government of New Zealand, submits that there is reasonable cause here why Mr Heslehurst was not conveyed out of Australia within the one month period and therefore the Court should not order his release from custody. 13 This makes it necessary for me to review the evidence as to what has happened since 4 October 2001. I will set out those events in chronological order.
10 October 2001 14 Federal Agent O'Neale of the Australian Federal Police ("AFP") made telephone contact with the Metropolitan Remand and Reception Centre Silverwater ("MRRC"), where Mr Heslehurst was in custody, and requested details of the current health status of Mr Heslehurst and asked that arrangements be made for a medical assessment of him to be conducted.
12 October 2001 15 Federal Agent O'Neale sent a facsimile transmission to the MRRC requesting such an assessment as a matter of priority.
16 October 2001 16 Federal Agent O'Neale telephoned the MRRC to follow up the facsimile, and the on-duty Deputy Governor said he would investigate the current status of the request and advise the AFP. On the same day, Federal Agent O'Neale had a telephone conversation with Dr Minh Tran (Medical Officer at the MRRC), who informed him that he would require a current assessment from Mr Heslehurst's cardiologist, Dr Kritharides, and information from the MRRC nursing staff, in order to complete a medical report. 17 Further on the same day Federal Agent O'Neale had a telephone conversation with the nursing unit manager at the MRRC regarding Mr Heslehurst's medical examination and was advised that Dr Tran could not give an opinion on Mr Heslehurst's fitness to travel without an examination by Dr Kritharides. The nursing unit manager advised that arrangements would be made as soon as possible for the examination to take place.
22 October 2001 18 Federal Agent O'Neale had a telephone conversation with a member of the nursing unit at the MRRC regarding Mr Heslehurst's medical examination and was told that the cardiologist would examine Mr Heslehurst on 23 October.
23 October 2001 19 Federal Agent O'Neale had a telephone conversation with a member of the nursing unit at the MRRC and was advised that Mr Heslehurst would be fit to travel, "subject to the service of his personal defibrillator, which was to take place on 15 November 2001".
25 October 2001 20 Federal Agent O'Neale had a telephone conversation with a member of the nursing unit, MRRC, regarding the medical report and was told that Dr Tran would have the completed medical report available on 26 October.
26 October 2001 21 The AFP received a facsimile of an assessment from Dr Tran regarding Mr Heslehurst's fitness to travel. The report stated that "assessments regarding Mr Heslehurst's fitness to travel" were not yet completed. The report referred to a then recent (23 October 2001) review by Mr Heslehurst's cardiologist who advised that Mr Heslehurst had to undergo a pacemaker review. Dr Tran stated: "Depending on this outcome and the results of some blood tests, and if normal, he will be fit for travel [sic]." The report of Dr Tran said that the pacemaker review had been booked for 15 November 2001, that Mr Heslehurst's pathology results were not yet available, and until Dr Tran had those results, he could not state whether Mr Heslehurst was fit for extradition to New Zealand.
4 (or perhaps 5) November 2001 22 On this day the surrender warrant was first liable to be executed.
7 November 2001 23 Ms Musgrave, a solicitor with the Commonwealth Director of Public Prosecutions ("DPP"), was advised by the New Zealand Police Liaison Officer, Mr Brett Kane that the New Zealand escort officer, Detective Carson, had resigned from the New Zealand Police Force. Mr Kane advised her that he would provide her with the name of a replacement New Zealand escort officer.
12 November 2001 24 Ms Musgrave received a facsimile from the New Zealand Police advising that the replacement escort officer would be Detective Constable Gregory Brand of the New Zealand Police. 25 I interrupt this chronological account to observe that it will be appreciated that both the terms of s 38 of the Act and of the surrender warrant which conformed to it, referred specifically to a particular New Zealand escort officer, in this case Detective Carson. Accordingly, although the evidence does not reveal the date when Detective Carson resigned, the DPP became aware as from 7 November that something would have to be done to overcome the problem caused by his resignation. What was done, as mentioned below, was that an application was made to Magistrate Orchiston for amendment of the warrant.
15 November 2001 26 Federal Agent Clare Boulton had a telephone conversation with a member of the nursing unit, MRRC, regarding Mr Heslehurst's pacemaker review and the AFP was advised that Mr Heslehurst did attend the appointment. Dr Maguire said he would not release a written report to the nursing unit and would notify only Dr Kritharides in writing of the result.
16 November 2001 27 Two things happened on this date. Federal Agent Boulton sent a facsimile to the MRRC requesting an updated report regarding the current status of Mr Heslehurst's medical assessments, and Ms Musgrave appeared before Magistrate Orchiston in chambers and applied for the warrant to be amended to refer to Detective Constable Gregory Brand in place of Detective Carson. Magistrate Orchiston directed that the matter be re-listed before her in Central Local Court and that arrangements be made for Mr Heslehurst to attend.
19 November 2001 28 The AFP received a facsimile of a letter from Dr Tran dated 16 November stating that Mr Heslehurst had been reviewed by his cardiologist, Dr Kritharides, and was given "fit to travel" bill of health. The letter further stated that Dr Maguire examined Mr Heslehurst on 15 November regarding his defibrillator but that the results were not available. The report of 16 November of Dr Tran is in evidence. Its concluding paragraph is as follows: "He has been reviewed yesterday, 15 November 2001 by Dr Maguire regarding his defibrillator and as of today, I have been unable to access these results. If the defibrillator check is satisfactory, Mr Heslehurst should be fit to travel."
21 November 2001 29 The application for amendment of the warrant was before Magistrate Orchiston when Mr Heslehurst appeared in person. He sought an adjournment to allow him to obtain legal advice and the matter was adjourned until 28 November. Ms Musgrave stressed that the warrant had to be executed as soon as possible and asked that the matter be resolved when the matter was next before the Magistrate.
28 November 2001 30 Ms Musgrave again appeared before Magistrate Orchiston. On this occasion Mr Heslehurst was represented by Mr Martin Churchill, solicitor, and Mr Heslehurst himself appeared by video link. Mr Churchill advised the Magistrate that he had seen Mr Heslehurst for the first time the previous day and had some instructions, although there was further material he wished to gather. He requested an adjournment and the matter was stood over until 9.30 am on 4 December to allow Mr Heslehurst again to appear by video link. Magistrate Orchiston noted that the issue for determination on that day would be that of her power to vary the warrant.
4 December 2001 31 The matter was again listed before Magistrate Orchiston. Mr Churchill appeared for Mr Heslehurst who was on video link, while Mr Allmutt of the DPP appeared for New Zealand. Mr Churchill handed up some written submissions and Magistrate Orchiston directed that written submissions be filed by New Zealand by 14 January 2002, that Mr Heslehurst reply by 28 January 2002, and that any further material be filed by New Zealand by 4 February 2002. Magistrate Orchiston re-listed the matter for 9.30 am by video link on 15 February 2002 "for decision". The adjournment granted on 4 December was not opposed by either party and apparently the timetable was not opposed by either party.
reasoning 32 Notwithstanding the rather lengthy account of the above facts, the issue before me this morning is a narrow one. It is whether I should be satisfied that Mr Heslehurst was not conveyed out of Australia within the period of one month from 4 (or perhaps 5) October for "reasonable cause". I am so satisfied. It is clear that following that date, the officers of the Australian Federal Police became active promptly. They could not have arranged for Mr Heslehurst's removal from Australia within the one month period because of reasonable inquiries relating to Mr Heslehurst's medical fitness to travel which were made with due expedition but not resolved within that time. 33 Mr Heslehurst submits this morning that what matters is that, in effect, the authorities did not find out earlier, as he submits they should have done, that Detective Carson was no longer a member of the New Zealand police. But even if they had found that out earlier and had arranged for amendment of the warrant in a timely fashion, they still would not have been in a position, because of the health issues outstanding, to have Mr Heslehurst removed from Australia within the one month period. 34 In substance, time did not begin to run against the authorities until 4 (or perhaps 5) October. Since that time they have been active. It seems that to some extent the delay involved in the resolution of the application for amendment before Magistrate Orchiston is something for which everyone concerned is responsible, in the sense that responsibility for that aspect of the delay involved is not to be attributed to one party and not at all to the other. The fact is that there is a proceeding before Magistrate Orchiston which will apparently finalised on 15 February 2002.
conclusion 35 Being satisfied in terms of s 38 of the Act that Mr Heslehurst has not been conveyed out of Australia within the one month period for reasonable cause, I am required not to order that he be released from custody. Accordingly, the orders of the Court are that:
Solicitors for the Respondent: Commonwealth Director of Public Prosecutions
Date of Hearing: 20 December 2001
Date of Judgment: 20 December 2001
Heslehurst
Government of New Zealand
(2001) 109 FCR 226