Killick v The Commissioner of Police New South Wales

Background and chronology 4The applicant was born in February 1942. He is now 72 years of age. He has a lengthy criminal history. The chronology relevant to the present proceedings is as follows. 5On 30 December 1983, in Queensland, the applicant committed an offence of stealing with actual violence whilst armed with a dangerous weapon. He was arrested, but absconded to NSW while on remand. While in NSW he committed further offences, in respect of which he was, in June 1986, convicted and sentenced to a lengthy term of imprisonment in this state. In December 1990 he was released on parole. He was then (in January 1991) extradited to Queensland to be dealt with in respect of the 1983 offence. He was held in custody in Queensland until June 1991, when he was released on bail and permitted to return to live in NSW, pending final decision of the Queensland charge. On 31 January 1992 he was sentenced for the Queensland offence to a term of imprisonment for 2½ years; a recommendation for his immediate release on parole was made. On 19 February 1992 that recommendation was implemented and he was released, on conditional parole. One of the conditions was that he reside at a specified address in NSW. Pursuant to ss 175 and 199 of the Corrective Services Act (Qld) he was, accordingly, granted a permit to leave and remain out of Queensland. Conditions of the permit were that the applicant accept the supervision of NSW probation and parole authorities. He was, of course, subject to conditions under his NSW parole. 6In March 1993 the applicant was arrested (in NSW) and charged with three firearms offences, committed in NSW, in respect of which he was granted conditional bail. He ceased contact with the NSW probation and parole authorities. This was a breach of his parole conditions. Those authorities notified Queensland Corrective Services Commission authorities of the firearms charges, and of the breaches of the parole conditions. 7On 6 May 1993, pursuant to s 185 of the Corrective Services Act (Qld), Brisbane Regional Community Corrections Board cancelled the applicant's (Queensland) parole, and, pursuant to s 188 of the Corrective Services Act (Qld), issued a warrant for his apprehension and conveyance to a Queensland prison. The warrant recited that the applicant's parole had been cancelled. There is, in these proceedings, no record of the order cancelling the Queensland parole, and there is no direct evidence of the reasons for the cancellation. No reason for cancellation was stated in the warrant. There does not appear to be any requirement for such a statement. 8No action was taken on this warrant; it was never executed. 9In October 1993 the applicant was sentenced in NSW in respect of the firearms offences. He was subjected to a good behaviour bond. 10On 24 August 1998, pursuant to s 189 of the Corrective Services Act (Qld) a Queensland stipendiary magistrate issued a further warrant for the apprehension of the applicant and his conveyance to a Queensland prison. That warrant also recited the cancellation of parole but did not give a reason therefor. It does not disclose the identity of the applicant for the warrant. (Under s 189 such a warrant may be issued on the application of the Queensland Community Corrections Board, or a member thereof.) 11In October 1998 and January 1999 the applicant, in NSW, committed two offences of armed robbery. He was arrested and refused bail. On 25 March 1999, before being tried or sentenced on those charges, and with the help of his then de facto wife, the applicant escaped from custody. He remained at large until 9 May, when he was re-arrested. He entered pleas of guilty to charges of armed robbery, escape, and associated charges, and was sentenced on 21 December 2000. After a partially successful appeal, he was sentenced to imprisonment for 23 years and 5 months, with a non-parole period of 15 years. The non-parole period expired on 3 March 2013. 12On 15 April 2014 the applicant was released on parole. He was, however, immediately apprehended on the authority of the 1998 Queensland warrant. He was, in accordance with s 83(1) of the SEP Act taken before a magistrate. The warrant, or a copy of it, was produced. On 22 April 2014 Magistrate Wahlquist heard argument in respect of the validity of the 1998 warrant, and other issues. On 1 May 2014 Magistrate Wahlquist delivered judgment. She held the 1998 warrant to be valid, and accordingly ordered that the applicant be extradited to Queensland. Pursuant to s 83(8)(a) she granted bail, subject to the condition that he appear at the Queensland Police Headquarters in Brisbane at 9.00am on 8 May 2014, and that he comply with all conditions of the NSW parole order. It appears that these conditions included that the applicant live at a specified address in Sydney, that he subject himself to electronic monitoring, and that he report daily to the North Sydney Police Station. 13Pursuant to s 86(1) of the SEP Act the applicant sought, in this Court, review of that decision. On 6 May 2014, on an interlocutory application, I granted a stay of the order and continued the grant of bail, on condition that the applicant appear before this Court on the review hearing. Such a review is by way of re-hearing (sub-s (7)). The review proceedings took place on 23 May 2014. The applicant appeared, in accordance with the bail condition.

Review pursuant to s 86 of the SEP Act 14The powers and duties of this Court under s 86 of the SEP Act are identical with the powers and duties of a magistrate under s 83. If satisfied that a warrant is invalid, the magistrate must order the release of the person to whom it relates (s 83(10)). Since, pursuant to s 86(7), a review is to be by way of rehearing, this Court also, if satisfied that a warrant is invalid, must order the release of the person to whom it relates. 15On behalf of the applicant, two propositions were advanced: (i)that the 1998 warrant is invalid; (ii)that for this Court "to accede to the extradition would be an abuse of process". 16The first question to consider, therefore, is whether the warrant is invalid. For this purpose, having regard to the arguments advanced on behalf of the applicant, it is necessary to bear in mind two things. The first is that the warrant in question is the 1998 warrant. The 1993 warrant is of no present relevance other than as part of the chronology. The second is that the 1998 warrant was issued by a magistrate under s 189(1)(b) of the Corrective Services Act (Qld). It was not issued, as was the 1993 warrant, by the Queensland Community Corrections Board, under s 188(1)(c) of the Corrective Services Act (Qld). That is, as will appear below, of some significance.

The validity of the warrant 17Counsel who appeared for the applicant took two alternative routes to the contention that the warrant is invalid. The first was that it was issued out of time. The second was that the warrant failed to meet basic requirements for validity, as specified in decided cases, notably Gummer v Commissioner of Police [1995] 1 Qd R 346. Was the 1998 warrant issued out of time? 18Counsel who appeared for the applicant acknowledged that the Corrective Services Act (Qld) specified no time within which a warrant is to be issued. That was the case whether the warrant was issued under s 188 by the Queensland Community Corrections Board, or under s 189 by a magistrate. 19Counsel, however, placed reliance on s 38(4) of the Acts Interpretation Act 1954 (Qld), which, under the general heading "Reckoning of time", provides: "(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens." 20Counsel argued that since the applicant's parole was cancelled in May 1993, the 1998 warrant was not issued "as soon as possible", and therefore failed to comply with s 38(4). It was therefore invalid as being issued out of time. 21I begin by observing that I have grave doubts whether s 38(4) has, or is capable or having, the effect attributed to it. However, it is not necessary to take time on that question. There is a much simpler response to counsel's contention. 22It is for this reason that I emphasised that the warrant in question is the 1998 warrant, issued under s 189 of the Corrective Services Act (Qld) by a magistrate. It is also important to emphasise that it is the timing of the issue of that warrant to which attention must be directed. Section 189 permits the issue of a warrant, by a magistrate, on the application of the Queensland Community Corrections Board or a member thereof. There is no evidence that discloses whether that Board, or a member, was the applicant. More importantly, there is no evidence of when the application was made. There is not the slightest basis for concluding that the warrant was not issued by the magistrate "as soon as possible" after the application was made. 23When confronted with this, counsel responded that it was the application for the warrant that was not made "as soon as possible". That may or may not be so, but it is not a matter that can be reviewed in this Court, under s 86 of the SEP Act. The jurisdiction of this Court is limited to the validity of the warrant; it does not extend to reviewing the validity of the application for the warrant. 24There is no basis for concluding that the warrant is invalid by reason of the date on which it was issued. The applicant's first line of attack therefore fails. 25The applicant's second line of attack on the validity of the warrant depended upon some observations made by the Queensland Court of Appeal in Gummer. That was a case in which a Western Australia warrant was issued, alleging that a complaint had been made that the person named in the warrant (Gummer) had, in Western Australia, committed an offence against the Criminal Code of Western Australia. The warrant therefore commanded police officers to whom it was directed to bring Gummer before a justice of the peace to answer the complaint and be dealt with according to law. Pursuant to sub-ss 82(1) and (3)(a) of the SEP Act, Gummer was arrested and taken into custody in Brisbane. Gummer swore an affidavit that he had never been in Western Australia. Although, ultimately, that affidavit was not read, it was conceded that there was no evidence that Gummer had been in Western Australia at any time material to the charge against him. Pursuant to s 83(8)(a) of the SEP Act, a magistrate ordered that he be remanded on bail on condition that he appear in the Magistrates Court at Perth on a specified date. Pursuant to s 86 of the SEP Act, Gummer sought review of that order. Pursuant to s 86(8) a judge of the Supreme Court of Queensland confirmed that order. 26On appeal to the Queensland Court of Appeal, the validity of the warrant was in issue. 27Fitzgerald P and Pincus JA, in separate judgments, allowed the appeal, set aside the order of the Supreme Court and revoked the order of the magistrate. White J agreed with Pincus JA. 28The passage on which counsel for the applicant relies appears in the judgment of Fitzgerald P, and is as follows: "However restrictive a view is taken of the concept of invalidity for the purpose of ss 83 and 86 of the [SEP] Act, it must be open to a person adversely affected by a warrant to establish by admitted facts: (i) that a precondition for its issue was not properly satisfied; and (ii) that the alleged offence to which the warrant relates is not one for which the person affected by the warrant could be convicted in the courts of the place where the warrant was issued. In my opinion, this is such a case." 29This passage gave rise to another two-pronged attack on the validity of the warrant on behalf of the applicant. The passage from Gummer was characterised as containing a "test" with two limbs; it was contended that the 1998 warrant failed both limbs of the test. 30First, it was argued, a pre-condition for the issue of the warrant was not met. That was because the warrant did not specify the reasons for the cancellation of the applicant's parole. It was asserted that a precondition for the issue of the warrant was specification of the reason or reasons for parole cancellation. 31Reference was made to a decision of the Supreme Court of Victoria (Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305; 263 FLR 478) in which s 86 review of an extradition order was sought. That order had been made on the basis of a warrant issued in NSW, following cancellation of Rodgers' parole. The recitation of the facts in the judgment shows that that warrant did contain a statement of the reasons for revocation of parole. 32On that basis, it was submitted that a Queensland 1998 warrant was invalid for failure to contain a similar statement of reasons for parole revocation. 33The argument cannot succeed. There is nothing that requires that a warrant issued on the basis of cancellation of parole specify the reasons for the cancellation. The mere fact that there is an instance of a warrant (a warrant issued in a different state) that does contain such a statement of reasons does not translate into a requirement that every such warrant, in whatever state it is issued, explain the reasons for parole revocation. There is no pre-condition of the kind the applicant contends has not been met. 34Second, it was argued, the offence to which the warrant relates is not one for which the applicant could be convicted in the courts in Queensland. Reference was made to the firearms offences (committed in NSW) and breaches of parole by the applicant by failing to maintain contact with NSW parole authorities. It was speculated that these might be offences in respect of which the warrant was issued. None of these, it was pointed, constitutes an offence for which the applicant could be convicted in a Queensland court. 35That is true, but it is immaterial. The 1998 warrant was not issued in respect of any offence for which the applicant could be convicted in a Queensland court. It expressly states that it was issued by reason of the cancellation of parole. 36Reference was also made to s 187 of the Corrective Services Act (Qld). Section 187 provided that parole will be "ipso facto" cancelled where the parolee is sentenced to another term of imprisonment for an offence in Queensland or elsewhere during his parole period. The only offences of which the applicant was convicted during the parole period were the firearms offences, for which he was not sentenced to a term of imprisonment. 37Again, however, the section is immaterial. The evidence shows that the applicant's parole was cancelled, not "ipso facto" pursuant to s 187, but by the Queensland Community Corrections Board pursuant to s 185. 38The warrant expressly states that it was issued on the basis of parole cancellation. It was not issued, and did not purport to be issued, in order to bring the applicant before the Queensland courts to be tried in respect of new charges. By contrast, the warrant issued for the arrest of Gummer was issued for the express purpose of having him extradited to WA in order to face trial for an alleged criminal offence committed in that state. The second "limb of the test" referred to in Gummer is simply inapt for those circumstances. 39The error in the approach taken on behalf of the applicant was to characterise what Fitzgerald P said in Gummer as stating as "test". Gummer was a case decided in entirely different circumstances. The warrant for Gummer's arrest was not based on cancellation of parole, but on the asserted commission of an offence in the putative extraditing state, Western Australia. It was in those circumstances that Fitzgerald P said (not by way of stating a universal test) that it must be open to a person adversely affected by a warrant to seek to establish that he could not be (lawfully) convicted in the state seeking extradition. There are bases for the issue of warrants other than the return of the person subject to the warrant to face trail in the extraditing state. The obvious one is exemplified in this case - for the person to be dealt with for breach of parole conditions. 40The second attack on the validity of warrant therefore fails. It follows that the challenge to the validity of the warrant also fails.

Abuse of process 41It is necessary, first, to pinpoint the abuse of process alleged. It was argued that for this Court to uphold the warrant would be to involve itself in abuse of process. Ordinarily, abuse of process occurs where a party to proceedings misuses the processes of the court or uses the those processes for an improper purpose, or a purpose extraneous to that for which they were provided, or if they are used as instruments of injustice or unfairness or if they are unjustifiably oppressive or vexatious: see the brief discussion by Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1993] HCA 77; 177 CLR 378. In each illustration given, it is the party seeking to use the courts processes to whom the abuse of process is attributed. It may be doubted that a court can abuse its own processes. Whether that is correct or not, when regard is had to the proceedings before this Court and the Local Court, there can be no abuse of process. As mentioned above, the proceeding before this Court is review, for which provision is made by s 86 of the SEP Act, of the proceeding before the Local Court. That proceeding was brought under s 82 of the SEP Act. The SEP Act contains a comprehensive set of procedures to be followed after a person is apprehended on a warrant issued by another state or territory. Section 82 permits various specified officers, including officers of the police force of one state, to apprehend a person the subject of a warrant issued in another state. Section 83 requires that a person so apprehended be brought before a magistrate of the state in which that person was apprehended. Section 83(2), s 84 and s 85 set out the powers and duties of the Local Court magistrate after that has happened. There is, and can be, no suggestion in this case that the statutory procedures were not followed. It cannot be an abuse of process for a court to comply with the regime mandated by the SEP Act. There can, therefore, be no abuse of process on the part of either this Court or the Local Court. Nor is there any established abuse of process on the part of the police officers who apprehended the applicant in accordance with the warrant, and in accordance with s 82. 42The powers and duties of the magistrate (and this Court) are thereafter limited. If the warrant or a copy thereof is not produced, the magistrate has a discretion to order that the person the subject of the warrant be released (s 83(4)(a)). No statutory guidance as to the exercise of that discretion is provided. If, after 5 days, a warrant or a copy thereof is not produced, the magistrate is obliged to order the release of the person (s 83(5), (7)). Those provisions are presently immaterial: the warrant, or a copy thereof, was produced. 43That being the case, the magistrate was obliged to consider the validity of the warrant. If satisfied that it was invalid, she was obliged to order the release of the applicant (s 83(10)). If not so satisfied, her options were limited to remanding the applicant on bail subject to a condition that he present himself to authorities in Queensland at a time and place specified (s 83(8)(a)), or to ordering that he be taken, in custody or otherwise, to a specified place in Queensland (s 83(8)(b)). 44The SEP Act (1992) replaced the Service and Execution of Process Act 1901 (Cth) ("the SEP Act 1901"). The SEP Act 1901 permitted a magistrate to refuse to enforce a warrant if it appeared that the charge was trivial, that the application for extradition had not been made in good faith in the interests of justice, or that for any other reason it would be unjust or oppressive to make the order. That provision was not reproduced in the SEP Act 1992. As I have indicated, the discretion of magistrate to refuse extradition, or to refuse to enforce a warrant, is extremely limited. 45There is no abuse of process in anything the magistrate did, nor in anything done by the police officers who apprehended the applicant, or the Commissioner of Police. The processes of this Court were invoked by the applicant under s 86 of the SEP Act. The powers of this Court thereunder are identical with those of the magistrate. There is no abuse of process in this Court in following the processes laid down in the SEP Act. 46Properly analysed (and confirmed by counsel during oral argument) what the applicant characterises as an abuse of process was the request by Queensland corrective services authorities for the issue of the warrant (the 1998 warrant) more than five years after the cancellation of the applicant's parole. 47It is well established that it is not for the courts of this state to determine whether an abuse of the processes of the courts of another state has taken place. Counsel for the applicant relied upon a decision of the Supreme Court of South Australia: Loveridge v Commissioner of Police (SA) [2004] SASC 195; 89 SASR 72. In that case, White J held: "[53] ... my conclusion is that a South Australian magistrate may, in an appropriate case, stay or dismiss an application for extradition on the ground of abuse of process pursuant to the inherent power of the Magistrates Court. Of course, the circumstances in which the inherent jurisdiction may be exercised are likely to be rare and exceptional. ... [58] ... A warrant is not to be treated as an authority which can be executed at any time, as though at the whim of the prosecuting and police authorities. [59] ... The making of the application [for the extradition of that applicant] was therefore, in my opinion, an abuse of the process of the Magistrates Court which entitled the Chief Magistrate to refuse to make the order for extradition." 48In reaching this decision, White J had regard to the decision of the Full Court of Supreme Court of Western Australia in Commissioner of Police v Lavelle (1995) 82 A Crim R 187. In Lavelle, Malcolm CJ said: "... s 83(8)(a) of the [SEP Act] has the effect that unless the magistrate is satisfied that the relevant warrant is invalid, the magistrate must order either that the person be remanded on bail to appear in the place of issue of the warrant or that the person be taken in custody to the place of issue or some other specified place. The only additional power which the magistrate has is to make the order subject to other specified conditions in accordance with s 83(9). Where the warrant is found to be valid, as in this case, I am quite unable to accept that either the application for or the making of an order for extradition can constitute an abuse of the process of the Court of Petty Sessions which would attract the inherent jurisdiction of this Court. One effect of the amendments to the legislation [that is, the replacement of SEP Act 1901 with the SEP Act 1992] is that any question of abuse of process or stay of proceedings will be one for courts of competent jurisdiction in the State or Territory in which the warrant is issued." Rowland J said: "... the Court of Petty Sessions was in fact exercising power under Commonwealth legislation pursuant to which it was directed, relevantly in the circumstances which are not disputed, to make an order for extradition if the warrant issued by a court of competent jurisdiction in another State or Territory was not invalid. In exercising power under the Commonwealth legislation, the Court of Petty Sessions is bound to give effect to a valid warrant issued by a court of competent jurisdiction of another State or Territory. If the issue of that warrant can be challenged on the basis that it is an abuse of process of the court of issue, then that is a matter for that court, or, if it lacks power, to a court of that State or Territory which exercises supervisory jurisdiction over that court. It cannot be an abuse of process of the Court of Petty Sessions of Western Australia to exercise a power it is bound to, and, in the circumstances of this case, obliged to, exercise in accordance with an Act of the Commonwealth. This Court does not exercise supervisory jurisdiction over courts of another State or Territory, valid on their face, issued by those courts." (italics added) 49White J, in Loveridge, was of the view that the Full Court of the Supreme Court of Western Australia was considering a different issue, and, accordingly, that the principles of comity did not require that he follow that decision. 50Observations to similar effect to those in Lavelle were made by Mandie J in the Supreme Court of Victoria in Berichon v Chief Commissioner, Victoria Police [2007] VSC 143; 16 VR 233. His Honour said: "[9] In my opinion, on a proper construction of Part V of the [SEP] Act, a magistrate is required to make one or other of the orders contemplated by s 83 if the express provisions of the Act are satisfied. The word used is 'must' and there is nothing in the language or structure of Part V to suggest that a magistrate possesses any relevant discretion. Nor do I think that there is any basis for an implication that a magistrate can refuse to make an order on the ground of abuse of process. [His Honour then referred to Lavelle, and said] [13] I should follow that decision and, with respect, I agree with it. It is implicit in that decision, probably explicit, that not only does a magistrate have no power to decline to make an extradition order on such grounds as are now relied upon by the plaintiff but that the Supreme Court reviewing such an order has no wider power. The question of abuse of process is a matter for the courts of the issuing State." (italics added) 51It is not necessary to take time dealing with other decisions to the same effect. Other than Loveridge, there is no decision that accepts that a court of one state can determine the question of abuse of the processes of the courts of another state. 52If the applicant seeks review of the decision of the Queensland corrective services authorities to seek the issue of the warrant, he must do so in the courts of that State. 53It follows that, pursuant to s 86(8) of the SEP Act, the only order I can make is to confirm the order of the Local Court, although it must be varied to accommodate the passing of the date on which the magistrate required the applicant to attend and present himself to the Queensland authorities. In order to give him the opportunity to seek review, if he is so advised, in Queensland courts, I will allow a lengthier time before he is required to attend. 54The orders I make are: (1)The order that the applicant be remanded on bail is confirmed; (2)The condition of the applicant's bail, that he appear at the Queensland Police Headquarters in Brisbane at 9.00am on 8 May 2014 is varied; (3)The applicant is remanded on bail, on the following conditions: (i)that he appear at the Queensland Police Headquarters in Brisbane at 10.00am on 27 June 2014; (ii)that the applicant continue to reside at the address the subject of the current bail conditions; (iii)that the applicant continue to subject himself to such electronic monitoring as is required pursuant to the terms of his parole conditions; (iv)that the applicant report daily between the hours of 8.00am and 8.00pm to the North Sydney Police Station. 55At the conclusion of the proceedings, counsel for the Commissioner of Police sought an order for costs of the application. I will give the parties an opportunity to make submissions in that respect.

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