Mansell v Acting Magistrate Luxton [2010] FMCA 409

It is that point that is argued strongly before this Court, in support of the determination, as to whether there has been a necessary failure on the part of the Acting Magistrate hearing the matter, to exercise his administrative decision in a proper manner. I understand, however, that this argument was also very strongly advocated before Acting Magistrate Luxton.

1. It is contended that the decision to be made - in other words, whether there is a valid or invalid warrant - is an administrative decision.

I understand that Acting Magistrate Luxton gave reasons in relation to determining that the warrant relied upon, in relation to these proceedings, was a valid warrant. Certainly, I am not aware of what those reasons might be, and it may be that whether, in fact, it is a judicial decision or an administrative decision, is irrelevant because the decision was made on proper basis. However, at the present time, I do not know that to be the case. As I say, that will obviously flow from the reasons when they are made available. 2. It is important, however, that I be mindful and comment upon the concerns that were raised in relation to this matter. A number of points were argued with regard to both the arrest warrant and the form of affidavit which was relied upon in support of the arrest warrant. I do not intend, at length, to go through the concerns that were referred to there, but suffice it to say, that it was contended that there were a significant number of technical errors contained within the arrest warrant, including failures, for example, to include information as to the place that the applicant in these proceedings was to be delivered up to, nor was there attached to the arrest warrant certified copies of prosecution notice, or any other documentation relevant in relation to same. 3. More particularly - and I must say that it is troubling, at least to me, is that the affidavit, which is sought to be relied upon in support of the arrest warrant and, therefore, the extradition, is a document which is not sworn. The fact is that a document which is not sworn is simply a collection of words. It is not a basis upon which there can be reliance placed. In that regard, I was assisted particularly by the indications and reference given to the High Court of Australia in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990). 4. In that decision, consideration was given by seven Judges of the High Court as to issues arising pursuant to the provisions of section 679(b) of The Criminal Code (Q). Section 679(b) relates to the issue of a search warrant. It commences as follows: * If it appears to a justice on complaint on oath... 5. Then it goes on to detail what steps might, or might not necessarily be required to be considered by a justice in the issue of a warrant. What the High Court said in relation to what is required in relation to the issue of a warrant is the following. At paragraph 6: * 6. The opening words of s.679 - "If it appears to a justice" - impose on a justice to whom an application for search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled. In T.V.W. Ltd. v. Robinson (1964) WAR 33, Negus J (at p 37) said: * "It is the duty of the justice before issuing ...a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters in s.711 of the Criminal Code and that those grounds are reasonable." * When the justice is so satisfied and a warrant is issued, the warrant should express the justice's satisfaction that there are reasonable grounds for the suspicion and belief. 6. A little later in their reasons the High Court said at paragraph 10: * 10. The requirement that a sworn complaint must ground the issue of a search warrant carries the implication that the grounds for the issue of the warrant cannot be made to appear to the issuing justice from statements made by an applicant otherwise than by complaint on oath. In Feather v. Rogers, at p 196, Simpson A.C.J. said in reference to a requirement that the facts be shown "on oath before a Justice": * "The statements made before the information was sworn were apparently not made on oath. They were therefore immaterial." 7. The High Court then goes on to say: * That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s.679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant. 8. As I say, on the face of it, the affidavit that is relied upon in support of the arrest warrant, in relation to the applicant in these proceedings, is simply words. It is not a basis upon which there could, at least on the face of it, be reliance placed by a justice so as to enable them to issue the warrant. 9. Similar arguments, as I understand it, were put before Acting Magistrate Luxton, and Acting Magistrate Luxton has given reasons in relation to why the failure to swear the affidavit relied upon in relation to the warrant, is not a basis upon which the warrant would be invalid. 10. It may be that Acting Magistrate Luxton fully appreciates the qualities that are required in that regard and, if that is so, then it is a proper basis for the decision to be made. But, unfortunately, I do not have those reasons in relation to the matter and it does give rise, to me, to a real concern as to, if this is an administrative decision, whether there has been a fundamental error of law, in relation to the making of that decision. 11. I was, quite properly by counsel for the applicant, referred also to the provisions of section 9A of the Administrative Decisions (Judicial Review) Act 1977. Section 9A, subsection (1) is in these terms: * (1) Subject to subsection (2), at any time when: * (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or * (b) an appeal arising out of such a prosecution is before any court * no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision. 12. A related criminal justice process decision is defined in subsection (4) of section 9A. As relevant, in relation to this matter is concerned, the following should be noted: * "related criminal justice process decision", in relation to an offence, means: * (a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: * (iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant. 13. What I am asked, on the part of the applicant to do here, is to distinguish this particular application and the decision of Acting Magistrate Luxton from a related criminal justice process decision. What is contended, on the part of the applicant, is that an administrative decision was made in relation to determining that the warrant was properly issued and that, therefore, it was able to be relied upon in relation to the extradition that occurs. There is no suggestion it is contended that there is a challenge to the warrant having issued by the justice in Western Australia, though, there is a challenge as to its validity. It is not, therefore, at least from the applicant's perspective, a related criminal justice process decision. 14. I am certainly concerned as to that particular aspect of this matter because, if it is in fact, a related criminal justice process decision, then it is a matter which would preclude the authority of this Court to exercise a judicial review of an administrative decision. But in my assessment, that is, again, one of the matters that might be more properly the subject of further consideration a little later. 15. In that regard, and finally what I think is determinative of my position, in relation to this matter, is the fact that I am asked to make a stay. 16. I note that, in the High Court and Federal Court procedure and practice documentation produced by Butterworths Australia, there is reference at paragraph 160,175.40 to a stay of proceedings where an applicant is waiting for reasons for the decision. The reasons have been given in this matter but they have not yet been made available. What the learned writers of Butterworths say is the following: * The applicant must be able to point to a ground upon which the decision under review was in fact invalid, before a stay will be granted. The mere fact that reasons for the decision have been sought and that those reasons have not yet been given is not a sufficient ground for staying the operation of the decision. However, in a case of urgency, the court may grant a stay to permit presentation of an argument. 17. The bottom line in relation to this matter is, that if the decision of Acting Magistrate Luxton is an administrative decision - and, of course, as I have indicated I am not certain one way or the other as to whether that might be the case - then to fail to grant a stay, in relation to the matter would have the most dire consequences for the applicant. He is charged with a very serious offence. An offence which, no doubt, if convicted, would lead to a very significant period of imprisonment. One would think, that if there is comity between the various criminal codes, then a conviction for murder would carry with it a penalty of life imprisonment. 18. With that consequence comes, in my assessment at least, a requirement for there to be absolute impartiality and absolute procedural fairness in relation to all proceedings relating to the charges being brought. To not grant, in the short term, a stay of the orders would have, therefore, the most significant of consequences for the applicant. If the stay were not granted he would, no doubt, be extradited to Western Australia, and a successful review - sometime in the next few days or week - would be totally nugatory. It would have no benefit to the applicant in these proceedings. 19. In my assessment, therefore, whilst there may be a fresh warrant issued, and, if that fresh warrant were not to give rise to any invalidity, then the extradition can proceed. It may be that it was found that the decision made in relation to this matter is a judicial decision, or that the decision made by Acting Magistrate Luxton was an administrative decision, but without error, then the extradition could proceed. But until such time as that could be fully investigated and properly considered, the consequences for the applicant are dire. There are, in my view, greater considerations that must be looked at in relation to the legal process.

1. I would ask, obviously, that the legal representatives for the applicant, noting the indication given that Acting Magistrate Luxton would abide by any order of this Court, convey to the Court and to Acting Magistrate Luxton the determination made at this time. I will direct that my reasons be published and made available as soon as possible.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Coker FM