Pauga v Chief Executive of Queensland Corrective Services

First stage: commencement 8 As to the first stage, s 12 provides as follows: 12 Extradition arrest warrants (1) Where: (a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and (b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country; the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person. (2) The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit. (3) Where: (a) the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant; (b) the person has not been arrested under the warrant; and (c) either: (i) the Attorney-General decides not to give a notice under subsection 16(1) in relation to the person; or (ii) the Attorney-General considers for any other reason that the warrant should be cancelled; the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant. (4) A notice given under subsection (3) is not a legislative instrument. 9 In Matson (Roger) v Keenan [2016] FCA 1549 at [31], Rangiah J accurately described s 12 as follows: Section 12 of the Act requires that the Magistrate be satisfied "on the basis of information given by affidavit" that the person is an extraditable person. If the Magistrate is so satisfied he or she "shall issue a warrant". The Magistrate has no residual discretion to refuse to issue an arrest warrant. Therefore, the applicant's ill health and allegations of dilatoriness in the prosecution were irrelevant to the Magistrate's decision. 10 Section 16 provides as follows: 16 Notice by Attorney-General (1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received. Person must be extraditable person in relation to extradition country (2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country. (3) As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later: (a) a copy of the notice; and (b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b); shall be given to the person. (4) A notice given under subsection (1) is not a legislative instrument. 11 There is no challenge on the appeal to any aspect of the stage one process.

Second stage: arrest and remand 12 The second stage of the process is what occurs after arrest, which is governed by s 15: 15 Remand (1) A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested. (2) The person shall be remanded by a magistrate or eligible Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted. (3) If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted. (4) At any time before proceedings under section 15A, 18 or 19 commence in relation to a person (in this section called the transferee) who is on remand under subsection (2), the Attorney‑General may, by warrant in the statutory form: (a) where the transferee is in custody - direct a magistrate or eligible Judge to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory; or (b) where the transferee has been granted bail - direct a magistrate or eligible Judge to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory. (5) The transferee shall be remanded by a magistrate or eligible Judge in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted. (6) A magistrate or eligible Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand. 13 The construction of s 15 is in issue on this appeal and will be addressed in more detail when considering the relevant grounds.

Third stage: eligibility for surrender including review by way of rehearing 14 Stage three of the process is the determination under s 19, which is in the following terms: 19 Determination of eligibility for surrender (1) Where: (a) a person is on remand under section 15; (b) the Attorney‑General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate or eligible Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. (2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate or Judge; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents - those documents have been produced to the magistrate or Judge; (c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence. (3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means: (a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; (b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of: (i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out; and (c) in any case: (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence. (4) Where, in the proceedings: (a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and (b) the magistrate or Judge considers the deficiency or deficiencies to be of a minor nature; the magistrate or Judge shall adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the deficiency or deficiencies to be remedied. (4A) If: (a) the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person; and (b) during proceedings conducted in relation to the person under this section, the Attorney‑General gives an amended notice under subsection 16A(2) in relation to the person; and (c) the amended notice specifies one or more extradition offences that were not specified in the original notice; and (d) the magistrate or Judge considers it necessary to give the person and the extradition country time to prepare for the conduct of proceedings under this section in relation to any of those extradition offences; the magistrate or Judge may adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the person and the extradition country to prepare for the conduct of those proceedings. (5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate or Judge is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. (6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings. (7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country. (7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3). (8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory. (9) Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall: (a) order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await: (i) surrender under a surrender warrant or temporary surrender warrant; or (ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5); (b) inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 21(1); and (c) record in writing the extradition offence or extradition offences in relation to which the magistrate or Judge has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney‑General. (9A) A magistrate or eligible Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release. (9B) An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form. (10) Where, in the proceedings, the magistrate or Judge determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate or Judge shall: (a) order that the person be released; and (b) advise the Attorney‑General in writing of the order and of the magistrate's or Judge's reasons for determining that the person is not eligible for surrender. 15 The meaning of "extradition objection" referred to in s 19(2)(d) is set out in s 7 as follows: 7 Meaning of extradition objection For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; or (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence. 16 In determining eligibility for surrender, a state or territory magistrate or eligible judge of Division 2 of the Federal Circuit and Family Court of Australia, is confined to considering the matters specified in ss 19(1) and (2) and cannot have regard to other matters falling outside the ambit of those sections: Kainhofer at 538-539. This case only involved magistrates, such that further reference to eligible judges is unnecessary. In Kainhofer, the s 19 stage was described as follows at 537 (omitting footnotes): A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b). The character of "the conduct of the person constituting the offence ... or equivalent conduct" must be ascertained under sub-s (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d). The term "extradition objection" is defined by s 7. 17 It is not the function of a magistrate hearing an application pursuant to s 19 to determine whether the requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 at [82] per Weinberg J; citing Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-413. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538. Rather, the magistrate must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539. 18 The extradition process in Australia involves no consideration or determination of whether the person whose extradition is requested by a foreign country is guilty or innocent of the extradition offence: Vasiljkovic v Commonwealth of Australia [2006] HCA 40; 227 CLR 614 at [33]-[34], per Gleeson CJ, and see ss 3(a) and 19(5). 19 Section 19(2)(d) requires a magistrate to be satisfied that there are not substantial grounds for believing that there is an extradition objection. This threshold is "evaluative in character" and requires that a real or substantial risk be demonstrated: Cabal v United Mexican States (No 2) [2000] FCA 445; 172 ALR 743 (Cabal (No 2)) at [15]; cited with approval by the Full Federal Court in Rahardja v Republic of Indonesia [2000] FCA 1297 at [38]-[39] and [47]. The onus is on the person resisting extradition to establish that there are substantial grounds for believing that there is an extradition objection, and while it does not require proof on the balance of probabilities, it "is not easily discharged": Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [220]. 20 The application of s 19 is also in issue in this appeal, and will be considered in further detail below. 21 Section 21 permits a statutorily limited merits review of the magistrate's decision by way of rehearing, rather than judicial review limited to correcting error: Republic of South Africa v Dutton [1997] FCA 708; 77 FCR 128 at 136C. A s 21 review is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender: Dutton at 136. Section 21A, enacted in 2012, expressly provides that if a party to the s 19 proceedings was prevented from adducing evidence, and the court considers that they should have been permitted to adduce it, the court may receive that evidence as well as further evidence or submissions that directly relate to it. A s 21 review application was brought by Mr Pauga, and dismissed by the primary judge, a decision that is not challenged on appeal.

Fourth stage: Attorney-General's surrender 22 As explained above, the final stage of the process, is that if s 19 is satisfied, a discretionary decision reposes with the Attorney-General as to whether a person, found to be eligible, should be surrendered: s 22.

Chronology 23 For factual context, it is convenient to reproduce, in its entirety, the chronology of events filed by Samoa (absent the Court Book references). That chronology accurately records the key events. 24 Mr Pauga did not challenge the chronology of events set out by Samoa, although his case was premised on focusing on certain events and/or characterising them differently (largely by way of granular detail that goes beyond the description of summarising key events). To the extent that additional detail is relevant, it is reflected in the reasons addressing the arguments advanced. 25 The chronology filed by Samoa was as follows: Date Event 2 June 2020 Australia receives a request from Samoa for the extradition of the Appellant (under cover of Third Person Note dated 6 April 2020). The Appellant's extradition is requested to face prosecution in Samoa for one offence of conspiracy to murder. 2 July 2020 The Attorney-General of the Commonwealth issues a notice under s 16 of the Extradition Act 1988 (the Act) 14 July 2020 An extradition arrest warrant is issued by a magistrate of the Australian Capital Territory for the Appellant's arrest under s 12 of the Act 20 August 2020 The Appellant is arrested in Queensland and remanded into custody. The extradition proceeding involving the Appellant is allocated matter number MAG0 0152606/20(6). 3 September 2020 Mention in MAG00152606/20(6) before his Honour Magistrate Gilbert. The proceeding is adjourned to 11 September 2020. 11 September 2020 Mention in MAG00152606/20(6) before his Honour Magistrate Gett. The extradition proceeding is adjourned to 18 September 2020. 18 September 2020 Mention in MAG00152606/20(6) before his Honour Magistrate Gett. His Honour grants leave to the Appellant to file an application seeking release from custody and lists it for hearing. 21 and 22 September 2020 Hearing of the Appellant's application seeking release from custody in MAG00152606/20(6) 21 September 2020 The Appellant files an originating application in the Magistrates' Court of Queensland against Queensland Corrective Services (QCS) and the State of Queensland seeking a declaration under the Human Rights Act 2019 (Qld) that his detention is unlawful and an order for release from custody. The proceeding is allocated matter number MAG2439/20. 25 September 2020 The Appellant's application seeking for release from custody in MAG00152606/20(6) is refused. Samoa makes an oral application for the conduct of proceedings under s 19 of the Act. 30 September 2020 Australia receives supplementary material provided in support of the extradition request. 6 October 2020 The Appellant files an originating application in the Supreme Court of Queensland for leave to amend the application before the Magistrates' Court of Queensland (MAG2439/20), and to transfer the matter to the Supreme Court of Queensland. This proceeding is given the number SC Matter 10635/20. 7 October 2020 SC Matter 10635/20 is listed before her Honour Justice Bowskill. The application is adjourned on a date to be fixed. 16 October 2020 Samoa files and serves submissions and material relied upon in relation to the Appellant's eligibility for surrender under s 19 of the Act. 30 October 2020 Directions hearing in MAG00152606/20(6) before the Primary Magistrate. Direction made for Appellant to file and serve submissions and material in response to Samoa's submissions and material by 4.00 pm on 10 December 2020. 6 November 2020 Hearing before his Honour Justice Martin in SC Matter 10635/20. The Appellant is granted leave to file an amended originating application seeking the issue of a writ of habeas corpus. 11 December 2020 Appellant files submissions (including referenced material) in relation to eligibility for surrender under s 19 of the Act. Submissions state that reasonable time to prepare is '24 to 36 months.' 11 December 2020 Directions hearing in MAG00152606/20(6). The Primary Magistrate makes directions for the Appellant to file and serve by 5 February 2021 a written plan as to the evidence, reports or witnesses to be relied upon and a timetable as to when they will be available. 16 and 17 December 2020 Final hearing before his Honour Justice Crow in SC Matter 10635/20. 18 December 2020 His Honour Justice Crow delivers ex tempore judgment dismissing the Appellant's application for a writ of habeas corpus in SC Matter 10635/20. 5 January 2021 The Appellant files an application dated 4 January 2021 seeking to recall and re-open the decision dated 18 December 2020 in SC Matter 10635/20. 12 February 2021 The Appellant serves a document entitled 'Respondents' Roadmap' 12 February 2021 Directions hearing in MAG00152606/20(6) before the Primary Magistrate. The Primary Magistrate expresses the view that the document entitled 'Roadmap' does not comply with her directions. The Primary Magistrate makes directions for the Appellant to file and serve, by 26 February 2021: an affidavit setting out all steps taken in furtherance of the directions made in December 2020; a written plan, in affidavit form, as to the evidence, reports or witnesses that the Appellant sought to rely upon in relation to eligible for surrender, along with a timetable as to when statement and reports would be available; and any material in support of an application for her recusal. The Primary Magistrate adjourns the matter to 12 March 2021 on the understanding that any application for recusal will be heard on that day. 15 February 2021 The Appellant sends an email to the Registry seeking that the matter be brought on as soon as possible to apply for a stay of the orders of the Primary Magistrate 'for the filing of any affidavits.' 19 February 2021 Hearing of the application to recall and re-open the decision of his Honour Justice Crow dated 18 December 2020 in SC Matter 10635/20. Application dismissed with costs. 23 February 2021 Directions hearing in MAG00152606/20(6) before the Primary Magistrate. The Appellant's counsel advises the Primary Magistrate that he is 'instructed to take separate judicial review proceedings' to challenge the magistrate's jurisdictional power to make previous and existing timetabling orders, including for the filing of affidavits. Counsel further informs the Primary Magistrate that the application will be filed before the next listing on 12 March 2022. As no application had as yet been filed, the Primary Magistrate dismisses the application to stay her directions, including for the filing of affidavits. The Primary Magistrate amends the previous direction for liberty to apply and notes that all directions previously made stand. 11 March 2021 The legal representative for Samoa sends an email to the Appellant's legal representative in advance of the directions hearing on 12 March 2021. The email states that, in the absence of any information since December 2020 as to preparation of the Appellant's case, Samoa intends to seek a hearing date. However, it was open to the Appellant to provide further information for Samoa's consideration. 11 March 2021 The Appellant's legal representative responds to Samoa's email, advising that he seeks 10 weeks to provide further information. 12 March 2021 Directions hearing held before Primary Magistrate in MAG00152606/20(6). The Appellant's counsel advises that his client still intends to proceed with the foreshadowed recusal application, but is 'not ready' and will not be proceeding today. The Primary Magistrate indicates that, in circumstances where the foreshadowed recusal application has not been made, she intends to list the matter for hearing. Various objections and issues are raised by the Appellant's counsel, including that the Primary Magistrate continues to sit as a court and fails to recognise she is 'the functionary' and only 'Tina' when conducting these proceedings. The Primary Magistrate makes an order to list the section 19 hearing on 8 and 9 July 2021. Directions are made as follows: Samoa is to file any material on which it relies by 4pm on 10 June 2021; The Appellant is file any material on which it relies for the hearing by 4pm on 24 June 2021; Parties have liberty to apply to make applications (with supporting material) on the basis of 7 days' notice. 10 June 2021 Samoa files submissions in reply in MAG00152606/20(6). 29 June 2021 The legal representative for Samoa sends an email to the Appellant's legal representative to propose an online hearing (due to COVID-19 travel and other restrictions). 30 June 2021 The Appellant's legal representative sends an email to the legal representative for Samoa setting out reasons why the section 19 hearing 'should be vacated.' 30 June 2021 Samoa's legal representative sends a further email to the Appellant's legal representative to advise that an urgent directions hearing will be requested and that the matters set out in his email may be raised at that time. 30 June 2021 Samoa's legal representative sends an email to the Registry requesting an urgent directions hearing. 5 July 2021 Urgent directions hearing held before Primary Magistrate in MAG00152606/20(6). Samoa raises the correspondence received from the Appellant's legal representative indicating that the hearing should be vacated. The Appellant's legal representatives advise the Primary Magistrate that no application is made now to vacate the hearing and they will be in attendance in person at the hearing. The Primary Magistrates notes that the Appellant's counsel has 'made it clear' that there is 'no application to vacate the hearing.' 5 July 2021 The Appellant's legal representative and Counsel execute an originating application and supporting affidavit for filing in the Federal Court (which becomes SAD 135/2021). 7 July 2021 Urgent listing before his Honour Justice Colvin in SAD 135/2021. The Appellant's Counsel states that they 'anticipate' that the hearing in MAG00152606/20(6) would be 'vacated and adjourned' in view of the pending the Federal Court matter. If not, they request liberty to call the matter on urgently for interlocutory relief. His Honour Justice Colvin declines liberty to apply on an urgent basis and lists the matter for case management in the ordinary course. 8 and 9 July 2021 Section 19 hearing before the Primary Magistrate. The Appellant is found eligible for surrender to Samoa. An order is made under s 19(9) of the Act committing the Appellant to prison.

26 Additional events referred to by Mr Pauga are that: on 24 August 2020, he was received into custody at the Arthur Gorrie Correctional Centre; and on that occasion, as well as on each subsequent date the matter was before a magistrate, Queensland Corrective Services was provided with a document entitled "Verdict and Judgment Record" (Form 44). 27 Aspects of these events are addressed in more detail below.

Primary judgment 28 It is sufficient at this stage to set out an overview of the reasons of the primary judge, with further detail included below where relevant to consideration of the grounds of appeal. 29 The case advanced by Mr Pauga before the primary judge raised many separate contentions as to why his detention was unlawful: see PJ [13]. His Honour noted that he had set out the history of the proceedings relating to the circumstances in which appeal grounds were identified in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. That judgment provided reasons for his Honour's order that the summary of grounds filed by Mr Pauga on 6 June 2021 be removed from the Court file including, inter alia, that it was fundamentally defective. A further statement of grounds was filed shortly before the final hearing before the primary judge, which are not recited in the primary judgment: see PJ [13]. In that context, his Honour categorised Mr Pauga's contentions into 12 propositions: see PJ [14]. 30 On each of those propositions, his Honour concluded as follows: (a) The first proposition was that, contrary to the terms of s 15(1), Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest (with the consequence that he had never been lawfully detained). The primary judge found that proposition to directly contradict the conclusion reached by Crow J in a separate application for a writ of habeas corpus, meaning Mr Pauga was prevented from advancing it: see PJ [243]-[251] and see below at [64]-[65] and [137]. (b) The second proposition was that, in making orders to remand Mr Pauga and directions and orders as to the conduct of the s 19 hearing, magistrates involved in the matter (including the primary magistrate) purported to exercise judicial power and thereby acted without any lawful authority. The primary judge found that this proposition depended on whether any of the magistrates approached the matter on the basis that they were exercising judicial power, in a way that impugned their actions. His Honour found that the primary magistrate had not done so, and any defect in the orders made by the magistrates who dealt with earlier remands would not entitle Mr Pauga to an order releasing him from custody: see PJ [252]-[264]. (c) The third proposition was that certain of the instruments purporting to authorise Mr Pauga's continuing detention in the period from his arrest to the s 19 hearing were not valid because of their contents, and because they were prepared and issued by persons other than the magistrates involved in the matter. The primary judge rejected that proposition, finding that, inter alia, the contents and nature of the charge sheet and Form 44s did not support it: see PJ [265]-[275]. (d) The fourth proposition was that there was no remand ordered by the primary magistrate at the hearing on 30 October 2020, with the consequence that thereafter Mr Pauga had not been lawfully detained. Given the documents before the Court referring to the fact that Mr Pauga was remanded on 30 October 2020, the primary judge found that the alleged factual basis for this proposition was not established: see PJ [276]. (e) The fifth proposition was that there was no jurisdiction to conduct the s 19 hearing unless Mr Pauga had been lawfully remanded. The primary judge explained that, on a proper construction of s 19(1)(a), the jurisdictional fact that must be established is that a decision to remand under s 15 has in fact been made (rather than it being necessary to establish that the remand was valid and lawful). Given that, on the evidence, by the time of the s 19 hearing Mr Pauga had been remanded as a matter of fact, the proposition was not established: see PJ [277]-[279]. (f) The sixth proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because no application had been made for proceedings to be conducted pursuant to the provision in relation to Mr Pauga. The primary judge rejected the proposition, as well as the particulars said to sustain it: see PJ [280]-[286]. (g) The seventh proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because, before proceeding with it, her Honour did not form the view that Mr Pauga had been allowed reasonable time in which to prepare. The effect of this proposition was that the s 19 hearing should have been conducted in two stages, with the primary magistrate to consider the preconditions set out in s 19(1) in the first stage. The primary judge did not accept the proposition, concluding that the availability of proceeding in the manner suggested by Mr Pauga did not mean it was required in order for there to be a valid decision: see PJ [287]-[294]. (h) In alternative to the seventh proposition, the eighth proposition was that the primary magistrate's consideration of whether Mr Pauga had been allowed a reasonable time in which to prepare for the s 19 hearing was undertaken without affording him procedural fairness. The primary judge did not accept the proposition, finding that her Honour had expressly considered that Mr Pauga had a reasonable opportunity to prepare, and concluding that s 19(1)(d) was met: see PJ [294]-[360]. (i) In alternative to the seventh and eighth propositions, the ninth proposition was that the primary magistrate's view that s 19(1)(d) had been met was formed in a manner that was arbitrary and capricious. However, bearing in mind the significance of the provision's character as a jurisdictional fact, the primary judge found that: the state of mind required to exist by s 19(1)(d) could not be formed arbitrarily or capriciously; and it could not be said that the opinion had not been formed genuinely and in a manner that was reasonably open: see PJ [361]-[368]. (j) The tenth proposition was that the s 19 hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence, with the consequence that the primary magistrate did not consider whether there were any extradition objections. The primary judge found that Mr Pauga was refused an opportunity to adduce evidence, without being afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections (despite his failure to conform to directions that had been made). Accordingly, his Honour concluded that there had been procedural unfairness in this aspect of the conduct of the s 19 hearing and accepted this proposition: see PJ [369]-[384] and see below at [39]. (k) The eleventh proposition was that the Warrant of Committal was invalid by reason of the form in which it was issued. The primary judge did not accept this proposition: see PJ [385]-[393]. (l) The twelfth proposition was that s 15 does not authorise the remand of a person in prison. The primary judge did not accept this proposition: see PJ [394]-[398]. 31 The application was considered by reference to those propositions rather than the grounds in the habeas corpus application directly. The application before the primary judge was therefore allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the s 19 hearing. That conclusion was based on his Honour's finding that there had been a pre-emptory refusal of Mr Pauga's application to adduce oral evidence. In circumstances where Mr Pauga had demonstrated jurisdictional error, but not that the primary magistrate lacked jurisdiction, the primary judge set aside the Warrant of Committal and remitted the matter for determination according to law: see PJ [10] and PJ [399]-[424]. 32 The primary judge also gave reasons for refusing Mr Pauga's application for bail: at PJ [426]-[440]. 33 As adverted to above, on the same day the primary judgment was published, the primary judge also dismissed Mr Pauga's s 21 review application, which had been heard at the same time as this proceeding: Pauga v Samoa [2022] FCA 1097. That judgment is not the subject of appeal: see the discussion at [64]-[65] below.

Grounds of appeal 34 The second amended supplementary notice of appeal is somewhat convoluted. Mr Pauga did not address his submissions to the grounds advanced in it. The essence of the grounds advanced can be summarised as contending that: (a) the primary judge erred by failing to order Mr Pauga's immediate release upon quashing the decision of primary magistrate (ground 1); (b) the primary judge erred by finding at PJ [243]-[251] that the principles of res judicata, issue estoppel and abuse of process prevented Mr Pauga from arguing that he had not been brought before a magistrate as soon as practicable (ground 2); (c) Mr Pauga had not been on remand authorised under the Extradition Act (ground 3); (d) the relevant hearings before the magistrates were not as persona designata, but as a Court or members of the Court, or not detached from the Court (grounds 4, 5 and 10); (e) the primary judge erred by holding that the primary magistrate had jurisdiction to determine the application made to Magistrate Merrin, the seventh respondent (grounds 6 and 12); (f) the primary judge erred by holding at PJ [267] that a formal statement by a magistrate that the person shall be remanded would suffice to meet the requirements of s 15(2) (ground 7); (g) the primary judge erred by holding at PJ [273] that Mr Pauga bore the evidentiary burden of showing invalidity of the Forms 44 (ground 8); (h) the primary judge erred by ordering the remittal of the proceedings to a magistrate who had accepted the function and power to conduct proceedings pursuant to s 19 (ground 9); (i) the primary judge erred by finding at PJ [57] and PJ [277] that s 19(1)(a) requires only a remand in fact, as opposed to an "identified chain of identified remands" and Mr Pauga being on lawful remand (ground 11); (j) the proceedings pursuant to s 19 could not be conducted until all of the prerequisites set out in s 19(1) were established (ground 13); (k) the primary judge erred by finding that consideration of the matters set out in s 19(2) did not require a further hearing (ground 14); and (l) the primary judged erred at PJ [356] by holding that Mr Pauga did not attempt to persuade the primary magistrate that the parties had insufficient time to prepare and at PJ [359] by concluding that s 19(1)(d) was met (ground 15). 35 The grounds in the notices of contention are better reproduced than summarised: (a) the first notice of contention asserted: The Federal Court should have upheld the Eighth and Ninth Respondent's contention that there is a single remand for Section 19 Extradition Act 1988 (Cth) proceedings, and that the remand can be of unspecified duration (being until the relevant proceedings are completed), consistent with the decision of Ireland v Dunne [2021] FCA 245 at [65]-[67]. The Federal Court was wrong to hold otherwise at [36]. (b) the second notice of contention asserts: The Federal Court should have upheld the Eighth and Ninth Respondent's contention that the requirement in section 15(1) of the Extradition Act 1988 (Cth) that a person arrested pursuant to an extradition warrant be 'brought before' a magistrate or eligible Judge does not require a person to be physically brought in person. The Federal Court was wrong to hold otherwise at [32]. 36 The notice of cross-appeal can be summarised as contending that the primary judge erred by: (a) finding at PJ [383] that there was procedural unfairness in the conduct of the hearing by the primary magistrate on 8 and 9 July 2021: by refusing to allow Mr Pauga to adduce evidence concerning extradition objections (see PJ [37] and PJ [381]); and without any indication from the primary magistrate as to the seriousness of the subject matter and the significance of that refusal (see PJ [381]) (ground 1); (b) failing to consider and properly take into account the factual context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, for example, by characterising the decision of the primary magistrate as a refusal of the opportunity to lead evidence when Mr Pauga's counsel had in fact sought an adjournment to prepare evidence (see PJ [371] and PJ [381]) (ground 2); (c) failing to consider and properly take into account the legal and statutory context surrounding any extradition objections that were to be raised at the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, including by failing to consider the objective seriousness of a party alleging the existence of extradition objections (ground 3); (d) failing to take into account the eighth respondent's submissions regarding Mr Pauga's conduct during the s 19 hearing, including submissions that his decision not to call evidence prior to his request for an adjournment was a deliberate forensic decision (ground 4); (e) failing to consider the eighth respondent's submission in relation to [82] of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (ground 5); (f) finding that Mr Pauga's application for an adjournment was for the purpose of obtaining evidence to support an extradition objection, where that finding was not supported by the evidence (ground 6); and (g) not finding, in all the circumstances, that the primary magistrate afforded Mr Pauga procedural fairness at the s 19 hearing (ground 7). 37 The various grounds of appeal, cross-appeal and contention may be divided into the following categories by reference to the stages in the extradition process: (a) the second stage of the extradition process, involving being brought before a magistrate as required by s 15(1) and remand as required by s 15(2), and related issues, as raised by appeal grounds 1, 2, 3, 7, 9 and 11 and the two notices of contention (Section 19 hearing) (Being brought before a magistrate and remand); (b) the second and third stages of the extradition process and compliance with the executive jurisdiction bestowed on the primary magistrate personum designata and related issues, as raised by appeal grounds 4, 5, 6, 8, 10 and 12 (Personum designata); and (c) the third stage of the extradition process under s 19 conducted before the primary magistrate on 8 and 9 July 2021, as raised by the cross-appeal and appeal grounds 13, 14 and 15 (The hearing conducted pursuant to s 19). 38 Although out of order in relation to the different stages of the extradition process, it is convenient to first address the cross-appeal and the appeal grounds addressing the s 19 hearing that took place before the primary magistrate. That is because, if the cross-appeal is successful, the appeal must be dismissed unless Mr Pauga establishes one of his grounds of appeal. It also follows that if the cross-appeal is successful, ground 1 of the appeal does not arise for consideration because there would be no remittal, and therefore nothing to challenge in relation to it.

Cross-appeal 39 As explained above, the cross-appeal challenges the primary judge's finding that there was procedural unfairness in the conduct of the s 19 hearing: see PJ [383]. It is helpful at this stage to recite that paragraph in its context: [379] … At no point was [counsel for the appellant] afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections despite the failure to conform to the directions that had been made. [380] The course taken by the Primary Magistrate was supported expressly by [counsel] for Samoa. [381] Therefore, Mr Pauga was refused an opportunity to adduce evidence without hearing from [counsel for the appellant] and without any indication in the reasons or other statements from the Primary Magistrate as to the seriousness of the subject matter and the significance of that refusal for the likely outcome. [382] This important point, though buried deeply under the weight of many unmeritorious ones and barely exposed during the course of the hearing, did not lose its significance as a result. As was observed recently, in Nathanson v Minister for Home Affairs [2022] HCA 26 by Kiefel CJ, Keane and Gleeson JJ at [33]: 'There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration': see also [47] (Gageler J). The other members of the court expressed an even firmer position when it came to the consequence of a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision-making process: see [76]-[77] (Gordon J), [121]-[127] (Edelman J). [383] In my opinion, there was procedural unfairness in this aspect of the conduct of the July Hearing. Further, the error was of a kind that gave rise to a realistic possibility of a different outcome because the submissions may have led to evidence being led on the important question of extradition objections. 40 In summary, Samoa alleges that the primary judge: erroneously concluded that Mr Pauga (the respondent to the cross-appeal) had been refused the opportunity "to adduce evidence concerning extradition objections", when the evidence was in fact directed towards why more time was needed to prepare for the hearing; and failed to consider and properly take into account the factual and statutory context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances (and, as a result, erred in applying Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, a factually distinguishable case). 41 Samoa argues that, when those matters are properly considered, no error is established in the conduct of the primary magistrate and rather, her Honour's refusal to receive the evidence was entirely reasonable. Samoa also submits that once the factual error as to the nature of the evidence is recognised, the primary judge's conclusion that there was procedural unfairness is inconsistent with his Honour's earlier conclusions at PJ [359] and PJ [367] (namely, that there was no procedural unfairness in the primary magistrate's conclusion that Mr Pauga had reasonable time to prepare for the conduct of the proceedings under s 19): s 19(1)(d). 42 Given the nature of this cross-appeal, it is first necessary to consider in some detail the factual and statutory context in which the s 19 hearing occurred. 43 The chronology of events filed by Samoa is reproduced above at [25]. In that context, it is necessary to make some additional observations about the events that bear on the cross-appeal and grounds in relation to the s 19 hearing. 44 First, the evidence sought to be led by Mr Pauga before the primary magistrate was directed to why he needed more time to prepare for the s 19 hearing, rather than being evidence of extradition objections to be adduced at that hearing. This is readily apparent from, for example, the affidavit of Mr Finlayson before the primary judge, as he stated: [104] Had I been permitted to give evidence at the hearing on 8 and 9 July 2021, I was prepared to give evidence as to the "roadmap" document supplied to the court in February 2021 and the reasons why the Applicant had not had reasonable time to investigate the matters therein and to prepare for a s 19 EA hearing and to evidence and mount his extradition objections. 45 During the appeal, Mr Pauga conceded that was so. It follows that the evidence sought to be led can properly be characterised as directed towards obtaining an adjournment of the s 19 hearing on the basis that he had not had reasonable time to prepare for the hearing. Significantly, it also follows that the factual basis underpinning the primary judge's conclusion as to the denial of procedural fairness, is incorrect. Given the lack of assistance given by counsel for Mr Pauga to the primary judge and the manner of and lack of clarity in his submissions before the primary magistrate, the error is understandable. 46 Second, and in that context, we accept Samoa's submission that Mr Pauga had at least ten opportunities during the course of the extradition proceedings to produce evidence in respect to all relevant matters, including how long he needed to prepare for the s 19 hearing, and he did not take any of those opportunities. These opportunities occurred in the context where Samoa had, on 16 October 2020, filed and served its submissions and the material on which it relied in relation to the s 19 hearing. 47 The opportunities arose at least: (a) at the hearing on 11 December 2020, and by the directions made that day (which counsel for Mr Pauga confirmed suited his purposes, but did not comply with); (b) at the hearing on 12 February 2021 (during which counsel for Mr Pauga refused to confine his submissions to his failure to comply with directions and responding to Samoa's submissions) and by directions made that day, which were again not complied with by Mr Pauga (including the direction to file and serve a written plan in affidavit form of the evidence, reports and witnesses that he intended to call); (c) at the hearing on 23 February 2021, which represented another opportunity for Mr Pauga to provide evidence or explain why he needed more time; (d) at the hearing on 12 March 2021 (during which Mr Pauga stated he was not ready to make the application for recusal of the primary magistrate despite the hearing being listed to hear that application) and by directions made that day (which were not complied with by him). It is noted that the s 19 hearing was listed on this occasion on dates almost four months later, after an exchange in which Mr Pauga's counsel stated that he did not understand what "the extradition hearing" was, almost five months after Samoa filed their submissions and material; (e) at the hearing on 5 July 2021 (which was brought on at the request of Samoa after an email from Mr Pauga's legal representatives on 30 June 2021 suggested vacating the s 19 hearing), noting that at this time Mr Pauga had not complied with the previous directions (a circumstance raised during the hearing by counsel for Samoa); and (f) at the first day of the s 19 hearing on 8 July 2021, during which counsel for Mr Pauga argued for an adjournment but did not indicate that he needed time to prepare evidence. 48 During the appeal hearing, Mr Pauga did not challenge Samoa's submissions as to the number and nature of the opportunities provided to him. On none of those occasions did he either raise or provide evidence of the time he needed to prepare, the basis for the time required, the reason why directions as to the filing of evidence had not been complied with, or that he would seek to lead oral evidence at the s 19 hearing. Rather, at the various hearings he informed the primary magistrate (without prior notice or evidence), that he was making, or would be making, various applications. Mr Pauga informed the primary magistrate on 23 February 2021 that he intended to challenge various aspects of her Honour's conduct of the hearings to date by filing a review in this Court (including her Honour's ability to make directions as to the filing of affidavits for the s 19 hearing), and would do so by 12 March 2021. Tellingly, he failed to do so until 5 July 2021, only 3 days before the scheduled s 19 hearing. 49 We note that in Mr Pauga's written submissions filed on 11 December 2020, he asserted without any supporting evidence that he required 24 to 36 months to prepare for the s 19 hearing. It was at that time the primary magistrate directed that he file, by 5 February 2021, a written plan as to the evidence, reports or witnesses to be relied on and a timetable as to when those would be available. That direction was made with his concurrence. The document he handed up to the primary magistrate at the hearing on 12 February 2021 (referred to as the "roadmap" and recited in full at PJ [154]) did not comply with the direction, as concluded by the primary magistrate at that hearing. As the primary judge observed at PJ [155], "[n]o lawyer acting reasonably could conceive of such a document as being a document of the kind that might comply with the direction made by the Primary Magistrate on 11 December 2020 (and acceded to by Mr Mancini, Mr Pauga's counsel at the time)". The reference to the roadmap document in Mr Finlayson's affidavit, recited above at [44], which was to be the basis of his evidence at the s 19 hearing, is to this document, which did not comply with the primary magistrate's directions. 50 We also note that during the s 19 hearing, on 9 July 2021, Mr Pauga submitted that he did not have the opportunity to address the roadmap when it was provided to the primary magistrate. That submission is entirely disingenuous. The transcript of the hearing on 12 February 2021 reflects that his counsel did address that document. Moreover, further opportunity was given to do so by the directions made on 12 February 2021 (set out in the chronology above), which he chose not to comply with. 51 In those circumstances, it is clear that: no further material was put before the primary magistrate at any stage of the proceeding that addressed the issues that were first raised in December 2020; and directions directed to those issues were not complied with. 52 Third, by a summary of the proceedings before the primary magistrate, it is difficult to fully capture the manner in which Mr Pauga conducted the proceedings before the primary magistrate without unduly lengthening these reasons. The primary judge summarised the various mentions before the primary magistrate at PJ [131]-[199], and the s 19 proceedings at PJ [200]-[242], reciting various aspects of the transcript. Mr Pauga makes no challenge to the accuracy of that summary (although Samoa questioned the completeness of the recitation of the correspondence in PJ [191], which is addressed below at [67]). 53 The approach of Mr Pauga's counsel in the proceedings before the primary magistrate was described by the primary judge when considering his submissions as to bias, inter alia, at PJ [334] as follows: … There was good reason [for the primary magistrate] to be frustrated. Mr Mancini persisted in disregarding the directions made without explanation. He made repeated oral applications without supporting materials or notice. He threatened applications to disqualify for bias but did not proceed with them, ultimately only advancing his bias submission on the basis that the Primary Magistrate had taken an active role in appearing through counsel in this Court and was required as a witness in these proceedings. Notably, the claim that there was a reasonable apprehension of bias in respect of the Primary Magistrate by reason of matters that occurred prior to the July Hearing was not pressed at the final hearing in the proceedings in this Court. He was disrespectful. He [was] feigning misunderstanding as to what was happening. 54 Although that description related to the application for bias, it is apt in relation to the conduct of the proceedings more generally. The primary judge also described Mr Pauga's counsel at various times as advancing his submissions with "rudeness" and being "unhelpful and supercilious": see, for example, PJ [72] and [302]. Those descriptions typify the conduct of Mr Pauga's counsel before the primary magistrate, as reflected by the transcript of the s 19 hearing. In addition, his counsel acted in a bullish manner, refusing to accept the conduct of the proceedings by the primary magistrate if her Honour took an approach contrary to his submissions. In those circumstances, Mr Pauga's counsel often ignored the primary magistrate's decisions, attempted to reargue the position and, in doing so, alleged that he had been denied opportunity to make submissions, when such opportunities had been provided. 55 Fourth, Mr Pauga's submission on this appeal that the directions made were without jurisdiction and contentious, as if to explain his breaches, is unacceptable. His evidence before the primary judge was that the failure to comply with the primary magistrate's directions to file evidence was a forensic choice, it is to be assumed made on legal advice. Mr Pauga's evidence before the primary judge was that he did not want to file material until the question of whether the primary magistrate had jurisdiction had been resolved. That had been resolved, adversely to Mr Pauga, before the matter was listed for the s 19 hearing, and no application for review in this Court was filed until 5 July 2021: see [71] below. 56 Directions are to be complied with unless or until they are overturned on appeal, varied or stayed. If an applicant is going to challenge such decisions, which are said to impact on the conduct of the proceedings, or to seek to vary them in some way, it is incumbent on them to do so in a timely manner. It was not open to Mr Pauga to conclude unilaterally that the directions were not valid and therefore decide not to comply with them, choosing instead not to initiate any proceedings to challenge the directions made, or even seek to vary them. No such applications were brought, in a timely way, or at all. Rather, Mr Pauga repeatedly chose to breach directions. 57 That said, on 23 February 2021, Mr Pauga did apply to the primary magistrate for a stay of her Honour's directions made on 12 February 2021. That application was on the basis he was going to seek judicial review in this Court of various aspects of the conduct of the proceedings, including her Honour's ability to make directions. That application reflects his understanding that he was required to comply with the directions. It was rejected on the basis there were no grounds to stay the directions, "particularly there being only a stated vague intention to bring judicial review applications with no draft of such application having been provided or any material in support". As previously referred to, the primary magistrate then made a direction of liberty to apply to bring the matter back before her Honour. The appellant: did not exercise that liberty; did not file the proceedings in the Federal Court until 5 July 2021; and continued to breach directions made. 58 We note also that there is no ground of appeal challenging the primary judge's finding made against Mr Pauga on this topic. His Honour concluded the contentions that the directions were made without jurisdiction were plainly misconceived and quite properly not accepted by the primary magistrate: at PJ [344] and see PJ [70]-[73], [261]. See also Dutton v O'Shane [2003] FCAFC 195; 132 FCR 352 at [159]: It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on "the admissibility of evidence", on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative. 59 Also, as a starting point, when case management directions include that the evidence or material to be relied on is to be filed by a specified date in advance of the hearing or to be filed in affidavit form, a failure to comply with the directions ordinarily means the evidence cannot be relied on without leave of the decision-maker. No lawyer acting reasonably could have understood they were entitled to ignore the directions, and simply call oral evidence from witnesses instead. As must have been plainly understood by Mr Pauga and his counsel, compliance with such directions was not optional. Moreover, the primary magistrate, at times, made directions, including for material to be filed explaining the breach of earlier directions. 60 At the hearing on 5 July 2021, as had been the case on earlier occasions, Samoa's submissions included that no evidence had been filed by Mr Pauga. Despite that, he did not raise that he intended to call evidence at the s 19 hearing. 61 Fifth, as referred to above, on 12 March 2021, the s 19 hearing was listed on 8 and 9 July 2021. On that occasion, further directions were made for the preparation for the hearing. The primary magistrate made clear to Mr Pauga that: he was granted liberty to apply to raise the jurisdictional points that he had complained about (which included the validity of any directions given); and if an application was made, a hearing would be set down for that purpose before the s 19 hearing: see PJ [188]. Mr Pauga did not exercise that liberty. 62 Sixth, in that context, Mr Pauga advanced a submission on this appeal that a s 19 hearing is to be conducted in two stages. Namely, a hearing in respect to s 19(1) is to be conducted, and only when the magistrate is satisfied of those preconditions can timetables be set and directions be made for the conduct of the s 19(2) stage. It follows that Mr Pauga is submitting that there must be a temporal separation between the s 19(1) hearing and the s 19(2) hearing. We will return to address the content of that submission below. However, we note that it is unclear how this submission, which contemplates timetables being set by the magistrate, sits with Mr Pauga's submission that the primary magistrate lacked jurisdiction to make case management directions. 63 For present purposes, it is sufficient to note that this position was not advanced before the primary magistrate. In particular, it was not advanced in Mr Pauga's written submissions filed on 11 December 2020 (in response to Samoa's submissions filed on 16 October 2020), where instead he made substantive submissions as to both aspects of s 19. Moreover, on 12 March 2021, when the s 19 hearing was set down, it was for two days (to address all matters in s 19). On that occasion, Samoa addressed the content and procedure in respect to both ss 19(1) and (2), and explained that at the s 19 hearing it would address both aspects of the provision. We note that is in accordance with the usual practice of both aspects being heard at the same time. Samoa agreed that two days was sufficient on the basis that Mr Pauga had put forward no material to be relied upon (despite directions to do so). Mr Pauga ultimately acceded to only two days being set aside. Significantly, he conceded on this appeal that from March 2021, he understood that all of the matters in respect of s 19 would be heard on 8 and 9 July 2021. 64 Seventh, the listing of the s 19 hearing occurred in the context where, on 18 December 2020, Crow J in the Supreme Court of Queensland had dismissed Mr Pauga's application for a writ of habeas corpus: see [133] below. In doing so, Crow J rejected Mr Pauga's submission that there had been no valid remands pursuant to s 15(1). In dismissing the application, his Honour observed that Mr Pauga's submissions were wide ranging, and in so far as complaints were made about the validity of subsequent remand before various magistrates acting persona designata, the avenue to challenge those decisions was by judicial review to the Federal Court (which had not been undertaken). This reflects that, as of December 2020, Mr Pauga was plainly on notice that any such challenges were to be advanced in this Court. The timing of his decision to file the proceeding on 5 July 2021 was also in this context. 65 Mr Pauga did not appeal Crow J's decision. That said, he did apply to Crow J to recall the decision and reopen the proceedings, but that application was heard and refused. Crow J did not accept that Mr Pauga had not had an opportunity to be heard on each issue he wished to raise, and observed that if he sought to review his Honour's decision, he should appeal it. We note the reasons of Crow J reflect, inter alia, criticisms of Mr Pauga's conduct in failing to comply with the orders of the Supreme Court for the filing of submissions in relation to the earlier application, and the consequent effect on the conduct of the hearing. 66 Eighth, it is worthwhile focussing closer attention on the hearing of 5 July 2021. The conduct of Mr Pauga's counsel during that hearing reflects his conduct during the proceedings more generally. 67 As reflected above at [25] and [47(e)], that hearing occurred as a result of Samoa calling on the matter urgently after receiving an email from Mr Pauga's legal representatives on 30 June 2021: see the email extracted at PJ [191]. The email was in response to correspondence from Samoa which, inter alia, suggested that the s 19 hearing should be conducted online (given the particular circumstances arising from the COVID-19 pandemic). We note that the primary judge omitted the last line of that email from the extract at PJ [191]. That line stated, "[f]or all these reasons, the hearing next week should be vacated". Bearing in mind that, by this time, almost nine months had passed since Samoa filed the material on which it relied and almost four months had passed since dates for the s 19 hearing had been set. Samoa expressly raised Mr Pauga's correspondence indicating that he was going to request the hearing be vacated. Mr Pauga's counsel disavowed any application to vacate the hearing, and stated that he would be present in person at the s 19 hearing. The primary magistrate understood (and stated her understanding) that there was no application for an adjournment of that hearing and that the representatives of Mr Pauga would appear in person. 68 In addition, as referred to above, during the hearing on 5 July 2021, Samoa: raised that Mr Pauga had not filed any material for the s 19 application in accordance with the many directions made; and submitted that he was "persistently, and consistently, and unexplainably in default of [the primary magistrate's] orders" in the context of a matter which "need[ed] to proceed" given that he was in custody and Australia had obligations under international law to give effect to the extradition request. Mr Pauga was asked for any submission on those issues and responded simply by stating that they would be appearing in person and "so we are proceeding on that basis". The primary magistrate then recited some aspects of the history of the matter, including the failure to comply with directions in relation to the filing of material. 69 If Mr Pauga was going to make an adjournment application, as he plainly intended to do, at the very least it should have been made during the hearing on 5 July 2021. That is especially so, given: the application had recently been foreshadowed, which had led Samoa to call the matter on; express opportunity was provided to make the application; and the s 19 hearing was listed only three days later. On this appeal, Mr Pauga submits that what counsel said at that hearing was that he was not making any adjournment application "now", leaving open that he would be making an application at the s 19 hearing. If that was so, it reflects the manner in which Mr Pauga chose to conduct the proceedings before the primary magistrate. It reflects that his counsel chose to be deliberately opaque as to any intention to seek to adjourn the s 19 hearing. No lawyer acting reasonably could have considered that this was sufficient to put Samoa and the primary magistrate on notice that there definitely was to be an application to adjourn on the first day of the s 19 hearing. That is particularly so in circumstances where, as referred to above, the primary magistrate stated during the hearing on 5 July 2021 that Mr Pauga's counsel had "made it clear there [was] no application for an adjournment of the [s 19] hearing". It would also have been obvious to his counsel that the primary magistrate understood from what he had said, that there was to be no application. Indeed, as the primary magistrate observed on 9 July 2021, any reasonable person would have taken the statement at face value. Further, and despite that, at no time during the hearing on 5 July 2021 did counsel state he would be making an application on the first day of the s 19 hearing. Nor did he correct what Mr Pauga now claims was a misunderstanding by the primary magistrate. It can be inferred that this conduct was deliberate. 70 Importantly, on 5 July 2021, Mr Pauga's counsel also did not raise with the primary magistrate that he had not had sufficient time to prepare for the s 19 hearing, nor did he provide any explanation for breach of the many directions made for the conduct of the s 19 proceedings. He also did not raise that he was going to seek to lead evidence orally at the s 19 hearing, noting that it is clear from the evidence before the primary judge that his intention was to adduce evidence confined to the question of an adjournment. 71 Ninth, the proceedings the subject of this appeal were filed in the Federal Court on 5 July 2021, but had not been filed at the time of the hearing before the primary magistrate on the same day. At that hearing, despite the fact that Mr Pauga's obvious intention was to file the Federal Court proceedings imminently, his counsel did not inform either Samoa or the primary magistrate of this. This is also in a context where, as the events that followed reflect, it was his intention to submit to the primary magistrate on 8 July 2019 (without notice) that the filing of the documents in the Federal Court meant the s 19 hearing could not proceed. 72 The proceeding filed in the Federal Court on 5 July 2021 sought, inter alia, an interlocutory order restraining the primary magistrate from proceeding with the s 19 hearing. An urgent hearing was conducted before the primary judge on 7 July 2021. At that hearing, counsel for Mr Pauga stated that he anticipated the s 19 hearing would be vacated and adjourned in light of the Federal Court proceedings having been filed. Mr Pauga did not press the application for interlocutory orders and no relief was sought to restrain the primary magistrate. Instead, counsel for Mr Pauga flagged to the primary judge that if the s 19 hearing was not vacated, an interlocutory injunction would be sought. The primary judge, in light of the conduct of the proceeding, refused his request to have liberty to bring the matter on urgently for that purpose. As the primary judge observed, if the hearing before the primary magistrate continued to finalisation, "it was a consequence entirely" of Mr Pauga's making given the delay, without explanation, in filing the Federal Court proceedings. We also note that Mr Pauga was capable of filing affidavits, given he had done so in the Federal Court proceedings by the time of this hearing before the primary judge.

The s 19 hearing 73 The s 19 hearing commenced on 8 July 2021, in the above context. 74 By this time, almost four months had elapsed since the hearing dates were set. At the outset of the hearing, counsel for Mr Pauga informed the primary magistrate of the Federal Court proceeding. As the primary magistrate attempted to ascertain the relevance of that proceeding, it became apparent that Mr Pauga was applying for her Honour to vacate the s 19 hearing (despite having stated on 5 July 2021 there was no such application): see the description of the events at PJ [200]-[217]. It became apparent that counsel was making more than one application at which time the primary magistrate said: Well, I'd like you to indicate all of the grounds, because once you've indicated what applications you're making… 75 After an interruption by counsel for Mr Pauga, her Honour continued: … and I need you to at this point to be complete. I need you - and it's the only opportunity I will be offering you, that while you are now on your feet, you let me know what applications you're making and the basis of those applications. Because at the directions hearing on Monday, l was given to believe that this matter would proceed today. There was no notice to this court on Monday that there were to be proceedings filed in the Federal Magistrates Court or the Federal Court. 76 We also note that during submissions, Mr Pauga's counsel, referring to Samoa's application, stated: I don't know what application is being made today, but I suspect it's an application by my learned friend to - for your Honour to determine - to conduct proceedings. 77 That statement was entirely disingenuous, with counsel feigning a lack of knowledge in circumstances where, as conceded on the appeal, he was aware the hearing was for all of the s 19 proceeding to be heard. We also note that a day earlier during the hearing before the primary judge, counsel for Mr Pauga had submitted that he understood the primary magistrate had set down the hearing on 8 and 9 July 2021 to "determine anything and everything" and that "we foreshadow Samoa is seeking a final determination". 78 In that context, during the application, which was heard during the morning of 8 July 2021, counsel for Mr Pauga did not advance as a basis for an adjournment that he needed time to prepare for the s 19 hearing, or had not had reasonable time to do so. In dismissing the application for an adjournment on the bases advanced, the primary magistrate detailed the history of the proceedings. This was accurately summarised by the primary judge at PJ [211]-[217], and given Samoa's grounds of appeal, bears repeating: [211] The Primary Magistrate then delivered oral reasons refusing the applications. They began with a summary of the history of the proceedings that reflects more briefly the chronology that has been described in these reasons. As to the hearing on 12 February 2021 her Honour said: A bald application, verbal application, was made to have me recuse myself with no evidence supporting submissions and I refused to recuse myself on that basis. I then directed that Mr Pauga file and serve an affidavit setting out all steps taken prior to the 12th of February in furtherance of the directions made in December 2020, such affidavit to include the reasons why the directions of this Court in December had not been complied with. I also directed that Mr Pauga file and serve an affidavit as to a written plan as to the evidence, reports and witnesses he intended to call and a timetable as to when report, statements, etcetera would be available. And that was, in effect, simply a repetition of previous directions made and not complied with. I directed that the two affidavits the subject of those directions to Mr Pauga on the 12th of February be filed and served before 4 pm on the 26th of February, and I adjourned the matter back before myself on the 12th of March. I should say that on earlier date I made a direction that any recusal application - that is, any application on behalf of Mr Pauga that I recuse myself - be listed for the 12th of March 2021 and I gave liberty to the parties to apply. On the 23rd of February, an application was made on behalf of Mr Pauga that I stay previous orders and there was a lengthy lot of submissions before l dismissed the application for a stay of my orders. [212] Then the reasons dealt with the hearing on 12 March 2021 in the following terms: On the 12th of March it came before the Court and Mr Pauga's legal representatives indicated to the Court that they were not ready to proceed with the application for recusal of myself from the hearing and indicated that they needed transcripts of the proceedings. I indicated to the parties on that date that I proposed listing the section 19 extradition application for hearing. Mr McKechnie said that one day only would be required. As things have turned out and in anticipation of possible further difficulties, the matter was set for two days, being today and tomorrow. I made further directions that Samoa file and serve any material upon which it relies before 4 pm on the 10th of June 2021, and I directed that Mr Pauga file and serve any material upon which he relies before 4 pm on the 24th of June 2021. [213] Her Honour then dealt with the events of 5 April 2021 and said: Mr McKechnie is also correct when he said the Mr Pauga is persistently and consistently and unexplainably in default of the Court's orders … At no time in the directions hearing was there any indication that there would be either an application or applications, as it turns out, as have been made orally by Mr Mancini this morning or, indeed, any application to the Federal Court as was made yesterday. [214] The Primary Magistrate then referred to the proceedings before Crow J and said: And so I put the history of the matter on the record to indicate what I consider to be repeated attempts by Mr Pauga to delay these proceedings by any means possible without notice or with inadequate notice to either Samoa or the Court. What the intended outcome might be is a question for them, but what is being achieved is further delays in this matter in relation to which Mr Pauga has had no success at any level in relation to arguments before the Court. [215] As to the claim of apprehended bias, her Honour said: The proceedings have previously resulted in a dismissal of an application for stay of orders. The matters of jurisdiction have previously been ventilated and determined. The issue of my recusal is limited in terms of material before this Court to paragraph 73 to 81 of the affidavit of Mr Finlayson filed in the Federal Court yesterday, which is no more than a general dissatisfaction with refusal of orders previously made by me without anything to substantiate the requirements for the Court to be satisfied that there is a reasonable apprehension of bias, except to refer to my manner and demeanour on the 12th of March 2021, which at its highest was expressed as 'patronising behaviour'. There has also been oral submissions made of my interrupting of Mr Mancini and there is also a reference in one of the transcripts to heated exchanges between myself and Mr Mancini. Now, accepting that that is the behaviour that another Court might determine is the behaviour I have engaged in, it falls far short of what is required for there to be a reasonable apprehension of bias by me towards Mr Pauga. And it will be for another Court to determine when they read all of the transcripts of all of these proceedings, which are attached to Mr Finlayson's affidavit, commencing at page 70 and going all the way through to page 412. I do not think it could be said that Mr Pauga has not had a fair go or a fair hearing. [216] Then her Honour dealt with the issues raised in relation to the notices under s 78B of the Judiciary Act and said: Other matters that have been raised relate to the notice under section 78B and Mr McKechnie's submissions, I accept, in relation to that argument that in the section 19 Extradition Act proceedings, my duties are administrative in nature as persona designate, and, in any event, Mr Pauga has not identified the matter arising under the Constitution or involving its interpretation that would give rise to me having a duty not to proceed. The only vague reference is to institutional integrity. There is no explanation of that. There is no evidence of that. And, in any event, I cannot determine constitutional matters, even if one had been identified, when one has not. [217] After dealing with the then recent hearing in this Court, the Primary Magistrate said: Mr Mancini promises much in terms of applications and delivers little, except at the door of Court orally, with the consequence that matters are delayed. So I dismiss and refuse the applications for a vacation of the hearing dates today and tomorrow. I dismiss the application for an adjournment of these proceedings. To the extent that it is necessary, given that I have made a previous order not stay proceedings, I further dismiss the further application to stay these proceedings. I also dismiss the application that I recuse myself and I determine, as has been the subject of previous orders, that I have jurisdiction to proceed to hear the section 19 application, the extradition application, and will proceed to do so. … The submissions to which the documents relied upon by Samoa … are submissions made on the 16ᵗʰ of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which l will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court. Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26ᵗʰ of July, which was to include any material upon which he seeks to rely. So that's my decision in relation to the refusal of the adjournment. 79 We note also that where Mr Pauga was directed to provide to the primary magistrate all applications (and there were many), there was no application to lead oral evidence: for a summary of the applications, see PJ [206]. 80 After ruling on those applications, the primary magistrate asked Samoa if it wished to commence then, or after the luncheon adjournment. At that point, Samoa raised that counsel for Mr Pauga had flagged that he may make emergency applications to the primary judge and that the luncheon adjournment was an appropriate time to do so. Her Honour then adjourned the matter until after lunch. Mr Pauga did not apply to the Federal Court to restrain the primary magistrate from continuing the s 19 hearing. 81 Samoa presented its case on each step of the s 19 proceedings (in other words, both the subsection 19(1) and 19(2) stages). We will return to address the substance of Mr Pauga's submission on the nature of a s 19 hearing below. Suffice to say there is nothing unusual or inappropriate about the extraditing country making submissions on both aspects of the s 19 hearing before the extraditee makes submissions. Samoa's submissions were consistent with the position taken in its written submissions and material filed on 16 October 2020, nine months previously. 82 At the conclusion of Samoa's submissions, counsel for Mr Pauga sought an adjournment of about 20 minutes to take instructions, which was granted. On resumption of the hearing, counsel sought to confirm on the record that Samoa had closed its case. Once that was confirmed, the primary magistrate asked counsel for his submissions. At this time, counsel applied for an adjournment until the next day. The purpose advanced was to investigate the material relied on by Samoa and to "prepare three witnesses for the purposes of giving evidence tomorrow on the s 19 question and call them for that purpose". It is to be noted that counsel did not identify the "s 19 question" referred to, nor any contemporaneous evidence of steps taken to prepare the three witnesses referred to. Mr Pauga also did not submit that he sought to call that evidence for the purpose of persuading the primary magistrate that he had not had a reasonable opportunity to prepare: see PJ [353]. 83 This was the first time that Mr Pauga informed the primary magistrate of any intention to call oral evidence. As explained above, despite the very many opportunities to do so, and in the face of directions for affidavits to be filed, via his counsel, he chose to withhold this intended approach. Further, the application for an adjournment was also made in a context where it had earlier been made abundantly clear to counsel for Mr Pauga, at the outset of the hearing, of the need to identify all applications he was making and the basis for them. 84 Her Honour stated: HER HONOUR: Well, the adjournment is refused, Mr Mancini, for these reasons. The submissions to which the documents relied upon by Samoa are attached are submissions made on the 16th of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which I will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court. Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26th of June, which was to include any material upon which he seeks to rely. So that's my decision in relation to the refusal of the adjournment. MR MANCINI: Well, your Honour, can I take that as an indication of what your Honour's thinking so I can respond to that. So the - - - HER HONOUR: No. That's my - in fact, my order. I'm - - - MR MANCINI: Well, your Honour - - - HER HONOUR: And I'm giving my reasons, thank you, Mr Mancini. Don't interrupt me. MR MANCINI: Well, your Honour, can't I be heard about that? HER HONOUR: I also refer to his Honour Judge French in Cabal v United Mexican States, that is the decision at tab 9, and, for your information, it is the 29th of August 2000. At paragraph 165 he talks about authentication in relation to provisions of section 19(7)(a) and (7)(b)(i), and goes on to say at paragraph 167: Section 19, paragraph 6, renders any document which is duly authenticated admissible in the proceedings. That is on the face of it a facultative provision. In paragraph 168: The requirements of authorisation relevant for present purposes are "purported" signature or certification and "purported" sealing. It is not necessary for the requesting country to prove to the magistrate that the signature or certification relied upon is that of a judge, magistrate or officer provided that appears on the face of the authenticating document. Moreover, it is not part of the function of the magistrate or this Court on review, to look behind the certification process to any statutory requirements of the requesting country which govern certification of official or judicial documents. It is not necessary to prove that the seal is an official seal of the kind specified provided that it appears on the face of it to be such a seal. Nor is it necessary to look behind the seal to determine whether or not it complies with the law of the requesting country. Now, on that basis and on the basis that Mr Pauga has had nine months to respond to fulsome, clear, concise submissions made nine months ago, the adjournment today is denied and the calling of any witnesses is refused. I am not going to have at the eleventh hour yet again an application made on the fly in the hope that this Court or me, however you want to refer to me - and so that application is adjourned [sic] as well. So what you are left with, Mr Mancini, is submissions that I would like you to make for the next three-quarters of an hour, and if you have not finished by then, we will continue in the morning. But there will be no witnesses to be called. There will be no adjournment. 85 Mr Pauga's submission on this appeal, by reference to the email of 30 June 2021, that Samoa was on notice that he intended to call witnesses, cannot be accepted. Although Mr Pauga's legal representatives did refer in that email to issuing summons for witnesses to attend and to produce documents, this had never eventuated. That was also in a context where the same email foreshadowed a vacation of the s 19 hearing, which led to the hearing before the primary magistrate on 5 July 2021, during which counsel for Mr Pauga disavowed that there was any application to vacate the hearing. At no time, either in correspondence or at the hearing on 5 July 2021, did Mr Pauga inform Samoa, or the primary magistrate, of an intention to call witnesses at the s 19 hearing. 86 Mr Pauga's submission in this appeal as to Samoa being on notice also misses the point. Directions had been made, and repeatedly breached, for the filing of evidence. Those directions allowed for notice to be given to Samoa of the evidence to be called (not just that Mr Pauga intended to call witnesses generally). His failure to comply with those directions therefore gave rise to the compelling inference that no evidence was to be called. 87 On the morning of 9 July 2021, Mr Pauga made another application without notice or evidence. This application related to the hearing (or at least part thereof) being held in closed court, and was denied by the primary magistrate. No challenge is made to that ruling. Mr Pauga thereafter had the opportunity to make submissions. 88 The tenor and nature of the submissions advanced by counsel for Mr Pauga are reflected by this passage: … It's Mr Pauga that has the right to be told by the court, by the persona, by the magistrate and by Samoa. And they've never - and nobody has ever told Mr Pauga how it's going to happen at all. So we haven't had a process, other than a process that has been conducted arbitrarily, on the run, from time-to-time. And so we get to a point, what is to be heard? Nobody is clear. We still don't know what your Honour's doing, because your Honour hasn't gone through the preconditions and the point is your Honour has no jurisdiction at the moment to entertain and to commence the proceedings under section 19. And so all of these things had to be talked about. Well, where are you going with that? How long do you need for that? Is that a reasonable time? What do you need to do? That's what we were trying to articulate to your Honour. And when, your Honour, any court official is asked by a party, "Your Honour, we'd like to investigate this," "Yes, how much time do you need?" - that's how it usually works. And then the court hears it and makes a decision about whether that time will be allowed. And, of course, that's never happened. 89 As can be seen, that submission is disingenuous, unhelpful and factually incorrect. Mr Pauga had repeatedly been provided opportunities to make submissions and to provide material to explain how long he needed to prepare. He was provided considerable latitude by the primary magistrate, including in circumstances where he had not complied with directions designed to ensure the s 19 hearing would take place, and in a timely and orderly fashion. It was only when he had repeatedly not complied with those directions (or taken those opportunities), that the matter was listed for hearing on 8 and 9 July 2021, even then, leaving four months until the hearing. In the same vein, Mr Pauga made submissions that he had never acceded to the validity of the directions to file affidavits and therefore could not comply, and claimed erroneously that the primary magistrate had not made rulings on various submissions previously made. He also complained, inter alia, that he needed to issue subpoenas to witnesses to attend and that the primary magistrate had not yet heard him on whether he sought to issue subpoenas. Again, this was a matter that had never been raised prior to 9 July 2021, despite many opportunities to do so. 90 In the middle of his submissions, counsel for Mr Pauga also made another application to adjourn, this time for about a week on the basis that he had been: … reliably informed that these proceedings and Mr Pauga's extradition, upon a change of government, will cease and it far better that my client's liberty not be compromised by virtue of that in the short delay, in the context of the very dramatic circumstances in Samoa and the pending change of government and the reliable information, your Honour, that's been given to me that this will end when the new Attorney-General comes in. 91 Despite the opportunities given, counsel repeatedly made the same submission, to the effect: Your Honour hasn't commenced any proceedings relevant to Samoa's application and your Honour hasn't done so, and cannot do so, as well. So you haven't done it and you haven't exercised the determination about the pre-conditions being satisfied because your Honour hasn't done - hasn't made that determination at all. 92 And: Your Honour cannot embark upon a determination under section 19 because your Honour hasn't done that which is required by section 19. Section 19 requires your Honour's determination in the way mapped out by Mr McKechnie first for your Honour to do those things, and having done those things, the magistrate or judge shall conduct proceedings. So we haven't yet started to conduct proceedings. That's a pre-condition to the conduct of the proceedings and the proceedings, your Honour, will be conducted when your Honour says so, and your Honour has to be satisfied about these matters. So, your Honour, in respect to that, in addition to the submissions we've made - and when your Honour's done that, then we'll present our case because we don't present our case ahead of your Honour conducting proceedings, you see, because your Honour hasn't started to conduct proceedings and we'll be asking to do things for the purposes of the conducting of proceedings, calling evidence, issuing subpoenas, et cetera, calling witnesses, et cetera. 93 Counsel for Mr Pauga also asserted that the primary magistrate had never heard from him about: how long he needed to prepare; whether he was ready; or whether he had had reasonable time to prepare. That submission was made in circumstances where, as outlined above, many opportunities had been given for him to be heard on exactly those issues. 94 The primary magistrate explained to counsel for Mr Pauga that he was to use the time he had during the hearing to make submissions as he saw fit. Counsel made it plain that he did not accept the ruling of the primary magistrate as to the conduct of the proceeding, and the primary focus of his submissions was directed accordingly. That was a forensic choice by him on behalf of his client. Counsel repeatedly referred to Peniche v Hannan [1999] FCA 915 as guidance as to the manner in which the hearing must be conducted in two stages. He submitted that he could not (and would not) present his case on s 19(2), including calling witnesses, unless a formal ruling was made in respect of s 19(1). On his submission, only then could he, inter alia, apply for subpoenas for witnesses to attend the s 19(2) stage (which was to occur on later occasion). The submission was made in circumstances where the primary magistrate had explained that the hearing would proceed on the basis that Mr Pauga, as Samoa had done, could make submissions on both of ss 19(1) and (2). That was also the position understood by Mr Pauga since the hearing dates were set. 95 It bears repeating that Mr Pauga submitted that he was, according to his counsel, still seeking time to investigate any extradition objections and to prepare such evidence, including by travelling to Samoa: see, for example, PJ [237]. 96 Having allowed Mr Pauga substantial time in which to make submissions (an aspect of the conduct of the proceeding to which he takes no issue), the primary magistrate heard Samoa in reply, before ruling in respect to each aspect of s 19.

Further issues 97 Before going further, it is appropriate to address three topics. 98 First, Mr Pauga's submission that a s 19 hearing must be conducted in two stages, temporally separate. The high point of his submission on the proper construction of s 19 depends on: the text of s 19, particularly the words "shall conduct proceedings" after s 19(1)(d); and Peniche v Hannan. It was submitted that case supports the proposition that s 19(1) must be considered first, and on an occasion temporally separate to s 19(2), because only after making a finding in relation to s 19(1) can a magistrate make directions as to the conduct of the s 19(2) stage of proceedings. This, it was submitted, was because the magistrate had no jurisdiction to conduct the proceedings until s 19(1) was satisfied. 99 The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14], citing Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [35]-[39] and [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. 100 The terms of s 19 do not suggest that both stages cannot be conducted within the same hearing, as the primary judge correctly found at PJ [291], reproduced immediately below. That is, there is nothing in the text of s 19, considered in context and given its purpose, which requires the hearing to be conducted on temporally separate days, or which requires the submissions and evidence in relation to the second stage to be heard after the completion of the first stage. The provision does require that the magistrate must be satisfied of the s 19(1) preconditions before they can determine the requirements in s 19(2). However, the hearing conducted can relate to both of those sub-sections, noting also that, generally speaking, extradition proceedings ought to proceed expeditiously: Peniche v Hannan at [22]. 101 The primary judge concluded at PJ [291] that: However, the availability of that way of proceeding did not mean that it was required in order for there to be a valid decision for the purposes of s 19 that a person is eligible for surrender. It was possible for a magistrate to proceed to conduct a single hearing to consider both the Four Pre-Conditions and the matters specified in s 19(2) provided the magistrate then considered the evidence and submissions as to whether the Four Pre-Conditions were satisfied and, in particular, formed the state of mind required by s 19(1)(d). Only if that state of mind existed could the magistrate proceed to conduct the Section 19 Proceedings and determine whether the person was eligible for surrender. But the view required by s 19(1)(d) could be formed after a single hearing at which evidence and submissions as to the Four Pre-Conditions as well as evidence and submissions on the Section 19 Proceedings were received. 102 Properly read, Peniche v Hannan does not stand for any contrary proposition. Mr Pauga could not point to any point of principle in Peniche v Hannan in support of his construction. Rather, Peniche v Hannan reflects no more than the way in which the proceeding happened to be conducted in the circumstances of that case. There, Mr Peniche brought an application to vacate the s 19 hearing (over a month before the date of that hearing) on two bases, one being that he had not had reasonable time in which to prepare for the conduct of the s 19 proceedings, meaning the s 19(1)(d) condition had not been satisfied: Peniche v Hannan at [6]. In support of that application, Mr Peniche relied on an affidavit from his solicitor which set out the work undertaken by his lawyers in preparation of the hearing, and why more time was required: Peniche v Hannan at [33]. The adjournment application was refused by the magistrate, and the application for a s 21 review was dismissed, as no error was established in the magistrate's decision. It may be accepted that there are occasions when the stages of the application are addressed separately, as occurred in Peniche v Hannan. However, neither the text of the provision, nor Peniche v Hannan, require that to occur. It is a matter that depends on the circumstances of the particular case. 103 Notably, although Mr Pauga places reliance on Peniche v Hannan, he did not take any of the steps undertaken by the extraditee in that case to have the issue determined before the date of the hearing. It therefore only serves to highlight what he could have done, but chose not to do. Knowing that the primary magistrate was going to address both aspects of s 19 at the s 19 hearing, he did not bring an application in advance. Instead, he misled the primary magistrate as to an adjournment application by disavowing any application to vacate the s 19 hearing on 5 July 2021. Nor did he provide any evidence in support of needing further time to prepare. As previously stated, no explanation was proffered at any time as to why that was not done, and why that could not have been done. 104 If Mr Pauga had complied with any of the directions in place that provided him with an opportunity to file evidence, including as to what was needed to be done and the amount of time needed to prepare (for example, on 11 December 2020 and 23 February 2021), the issue of reasonable time to prepare undoubtedly would have been addressed at that time (or at least at a time earlier than 8 July 2021). It ought to be noted also that the dates for the hearing of the s 19 application were not set until he had the opportunity (on more than one occasion) to provide material as to how long he needed to prepare for it. Mr Pauga chose not to comply with the directions. 105 Second, there is a s 21 statutory right of merits review to this Court from a determination of eligibility at the s 19 stage of the extradition process. In relation to that review, s 21A provides that if a party to the relevant s 19 proceedings was prevented from adducing evidence in the proceedings, and the review court considers that the party should have been permitted to adduce that excluded evidence, the court may receive it (as well as submissions or further evidence relating to it): s 21A(2), as referred to above at [21]. Mr Pauga sought such a review, which was heard at the same time as this application before the primary judge. The review was dismissed: Pauga v Samoa. In bringing that review, Mr Pauga never challenged the primary magistrate's conclusion that he had been given reasonable time to prepare for the hearing, as per s 19(1)(d). Nor did he attempt to put before the Court any evidence which he said had been excluded or he had been prevented from leading during the s 19 hearing. In particular, no evidence was put before the Court to base an extradition objection which was said to have been excluded. There was also no challenge to the findings by the primary magistrate in relation to extradition objections. 106 Third, as explained above at [7], the s 19 hearing related to the third stage of the extradition process, not the final stage of the extradition process. The discretionary decision of the Attorney-General pursuant to s 22 remained, and we note that material relevant to the decision as to whether a person, although eligible for extradition, will be extradited, can be put to the Attorney-General at that stage. It follows that Mr Pauga has a further opportunity to provide submissions and evidence on extradition objections for the purposes of s 22(3)(a), or other matters relevant to the s 22 discretion.

Conclusion on the cross-appeal 107 As submitted by Samoa on the cross-appeal, the conduct of the primary magistrate is framed by the primary judge as refusal of an opportunity for Mr Pauga to "adduce evidence [concerning extradition objections] without hearing from [his counsel] and without any indication in the reasons or other statements … as to the seriousness of the subject matter and the significance of that refusal for the likely outcome": see PJ [381], also see PJ [379] and [383]. 108 That conclusion is underpinned by an incorrect factual premise as to the topic on which the evidence was sought to be led: see [44]-[45] above. As Mr Pauga conceded, the evidence he sought to lead was instead directed to s 19(1)(d), its intended consequence being an adjournment of the s 19 hearing. Therefore, the primary judge's conclusion that "[a]t no point was he afforded an opportunity to advance submissions as to why evidence should be received concerning extradition objections", cannot be sustained: see PJ [379]. 109 It is also important to recall that there is no appeal ground challenging the primary judge's findings in relation to the eighth or ninth propositions, namely that: there was no procedural unfairness in the primary magistrate's conclusion that Mr Pauga had reasonable time to prepare for the conduct of the s 19 proceedings; and the primary magistrate's decision that s 19(1)(d) had been met was not made arbitrarily. This provides a significant hurdle for him. Once the actual nature of the evidence sought to be led in the s 19 hearing is appreciated, it is apparent it is necessarily encompassed by those conclusions. 110 As the chronology of events reflects, Mr Pauga made a number of deliberate forensic decisions, including not to comply with directions made by the primary magistrate as to the conduct of the proceeding. That decision not to comply included non-compliance with directions as to: filing material and evidence to be relied on in the s 19 hearing; explaining the failure to comply with directions; and explaining how much time was needed to prepare for the s 19 hearing. Mr Pauga also decided not to inform the primary magistrate in advance of the hearing: of his intention to call oral evidence; of his explanation for failing to comply with the directions; that he considered he had not had reasonable time to prepare for the hearing; or that he intended to apply for an adjournment on the day of the hearing (having disavowed the intention to make an application to vacate the hearing three days earlier). 111 This was all in a context where there were at least ten opportunities to inform the primary magistrate of those matters, as well as liberty to apply to bring the matter back before the primary magistrate. It was also in a context where Mr Pauga: was aware that both stages of s 19 were listed to be heard on 8 and 9 July 2021 (as he conceded on the appeal); filed proceedings in this Court only on 5 July 2021, almost five months after he flagged with the primary magistrate his intention to do so; and failed to agitate the interlocutory relief referred to in the application filed in the Federal Court, but used it as a pretence for an adjournment of the s 19 hearing. 112 We cannot agree with the primary judge that there was any denial of procedural fairness. The decision of the primary magistrate, in the particular circumstances of this case, was reasonable and involved no practical injustice. 113 There is no issue that the primary magistrate was obliged to accord procedural fairness to Mr Pauga, which included the provision of a reasonable opportunity to present his evidence and make submissions. That said, in Li at [82], Hayne, Kiefel and Bell JJ observed: It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed. 114 The reasons for the primary magistrate's refusal, when considered in the context of these proceedings, were made abundantly clear. In this case, it was reasonable for the primary magistrate to conclude that "enough is enough". 115 In any event, as reflected in the summary of the s 19 hearing above at [73]-[96], Mr Pauga was provided an opportunity at the outset of the hearing to list all the applications he intended to make, and the bases for them. Yet in doing so, he did not make an application for an adjournment on the basis he had not had reasonable time to prepare for the hearing (although he did make an adjournment application on other bases), nor did he seek leave to call oral evidence. After the applications which had been identified were heard and determined, and the adjournment refused, Mr Pauga was reminded by the primary magistrate that it was for him to determine what submissions he wanted to put to her Honour. By his counsel, he chose, in large part, to focus on and re-agitate his submission that s 19 required a two-stage hearing. He did so in circumstances where it was clear that the primary magistrate had decided the hearing would address both stages of s 19 (and, as explained above, that submission was, in any event, misconceived). Counsel made a forensic choice to use the hearing time, in large part, to incorrectly and repeatedly insist: that he had not been heard on having a reasonable opportunity to prepare for the hearing; that the primary judge could not proceed as her Honour was; that the directions her Honour made as to the filing of evidence were invalid; and that he did not understand the application. He had opportunity to make submissions on other topics, and he chose to do so only to a limited extent. 116 Moreover, there was no evidence before the primary judge identifying the submission Mr Pauga was said to have been prevented from advancing, that being, why he should have been able to lead oral evidence regarding extradition objections. This is consistent with the fact that the evidence sought to be led at that hearing was directed only to having reasonable time to prepare for the hearing, as conceded by Mr Pauga during this appeal. 117 Leaving aside that the primary judge's conclusion as to procedural fairness was based on an incorrect factual basis, it is also appropriate to address the two considerations on which his Honour placed particular emphasis. 118 First, the primary judge at PJ [376]-[377] made observations about the nature of the directions to file evidence and the consequences of a failure to do so. The nature and effect of the directions is described above at [55]-[59] and does not need to be repeated. Suffice to say that we do not agree with the description by his Honour. We also note that approach by the primary judge is somewhat inconsistent with his Honour's approach to determining the consequences of Mr Pauga's breaches of directions on the question of the reasonable time to prepare (which were considered as part of the eighth proposition in the primary judgment: see [30(h)] above). 119 Second, the primary judge heavily relied on the serious consequences for Mr Pauga of the ruling made by the primary magistrate. However, there is no sound basis to suggest that the primary magistrate did not consider the serious consequences of her Honour's refusal. Those consequences must also be viewed in their context. Mr Pauga was well aware: of the potential consequences of a s 19 hearing when he made the forensic decisions set out above; and that he bore the onus of establishing any objections. As explained above, in light of the directions made and his forensic decisions up to that point, he could have had no reasonable expectation: that the s 19 hearing would be adjourned; or that, despite failing to comply with directions for the filing of evidence, he could simply choose to lead evidence orally regarding reasonable time to prepare for calling evidence sometime in the future. Mr Pauga was also well aware of the consequences of his approach. As reflected in his counsel's submissions to the primary judge on 7 July 2021, if the primary magistrate did not vacate the s 19 hearing, he expected the consequence to be that it would proceed to the finalisation of the s 19 stage of the extradition process. That circumstance was of Mr Pauga's own making. 120 To conclude, we note that the primary judge, when deciding the tenth proposition, did not appear to properly consider the factual or statutory context in which the primary magistrate's ruling was made. 121 Providing procedural fairness does not require that proceedings are conducted only in a manner and at a time demanded or desired by an extraditee. The primary magistrate was not under an obligation to afford every opportunity to Mr Pauga to present his best possible case, only a reasonable opportunity. Such reasonable opportunity was clearly given. 122 Samoa has established its cross-appeal. Accordingly, for Mr Pauga to succeed on his appeal, he must establish one of his grounds of appeal. As a consequence of our conclusion on the cross-appeal, ground 1 of Mr Pauga's appeal, which asserts error in the primary judge ordering remand consequential on his quashing the Warrant of Committal issued by the primary magistrate (having overturned her Honour's finding on s 19 on the basis of denial of procedural fairness), no longer arises for consideration.

Appeal grounds 13, 14 and 15 123 Mr Pauga also appealed aspects of the primary judge's conclusions in respect to the s 19 hearing. 124 Ground 13 challenges the primary judge's conclusion that the s 19 hearing could be conducted as a single hearing, and not as two temporally separate hearings. These submissions have been addressed and considered above at [98]-[104] and do not need to be repeated. Suffice to say that Mr Pauga has not established any error in the primary judge's conclusion. Although each stage needs to be separately determined and in order, there is no obligation to conduct a s 19(1) hearing separately from a s 19(2) hearing. In most extradition cases, the preparation timetable will ensure that a reasonable time has been allowed for both sides to prepare, and findings as to the other jurisdictional requirements in s 19(1) will often be more of a formality in practice. It is to be expected that any unforeseen problems in preparation would be raised and addressed well before the scheduled s 19 hearing, unlike what Mr Pauga chose to do. 125 Further, for the reasons given above, there was no denial of procedural fairness in the conduct of the s 19 hearing. 126 In so far as ground 14 suggested that: Mr Pauga was denied an opportunity to make submissions; the primary magistrate had implicitly pre-determined his eligibility for surrender; and the primary magistrate failed to perform her Honour's statutory duty to consider the available evidence and submissions as to extradition objections. Those matters are not established and are contrary to what actually took place at the s 19 hearing (as detailed at some length above). Moreover, as noted above, Mr Pauga does not challenge by his grounds of appeal the primary judge's conclusions that there was no error in the primary magistrate's conclusion with respect to s 19(1)(d), and that the conclusion was not arbitrarily or capriciously made by her Honour. There is also no ground challenging the primary magistrate's conclusion that no extradition objections had been established. 127 Although in ground 15 Mr Pauga challenges a factual finding in PJ [356], he made no submissions in support of it. He only advanced a written submission alleging an error with a statement in PJ [357]. That criticism is ill-founded as the passage, read in context, relates to a description of events on 8 July 2021 after the adjournment application. Further, it is an accurate recitation of events at that time. The passage of the transcript relied on to support Mr Pauga's complaint also does not assist him. Importantly, the paragraph complained of (and PJ [356] and [359] complained of in ground 15) appear in the part of the primary judgment considering the eighth proposition (and relatedly the seventh and ninth propositions), the conclusion of which is not challenged on this appeal. Ground 15, even if factually correct, cannot have any effect on the fate of the appeal. 128 Mr Pauga has not established any of grounds 13, 14 or 15 relating to the hearing conducted pursuant to s 19.

Being brought before a magistrate and remand thereafter

Introduction 129 This topic covers appeal grounds 2, 3, 7, 9 and 11, as well as the two notices of contention relied upon by Samoa. The number of appeal grounds that require determination are reduced because of Samoa's success on the cross-appeal and our conclusions in favour of the notices of contention: see [147]-[180] below. 130 Mr Pauga's case before the primary judge and on appeal is that the requirements of s 15 were not observed following his arrest on an extradition arrest warrant issued by a magistrate in the Australian Capital Territory, such that his detention and remand was unlawful, not just at the time of non-compliance, but on an ongoing basis. 131 Section 15(1) required Mr Pauga to be "brought as soon as practicable before" a Queensland magistrate or eligible judge. 132 The events from Mr Pauga's arrest and remand on 20 August 2020 and thereafter were summarised in some detail by the primary judge, including reproducing parts of the written record of Mr Pauga being remanded in custody: see PJ [81]-[98]. He was remanded in custody by a magistrate in Queensland on the day of his arrest, 20 August 2020. At the hearing before the magistrate he was represented by a solicitor who appeared by telephone, having obtained instructions by telephone from him. His solicitor consented to him being remanded in custody until 3 September 2020 (which was the next court date). On 20 August 2020, Mr Pauga did not physically appear in court and instead remained in the Brisbane watch house. After several mentions on 3, 11 and 18 September 2020, at which Mr Pauga did not appear except by his solicitor or counsel, or via videolink, he appeared physically in person on 21 and 22 September 2020, and was also legally represented at that time: see PJ [100]-[120]. 133 Mr Pauga brought an initial application in the nature of habeas corpus under the Human Rights Act 2019 (Qld) in the Queensland Magistrates Court on 21 September 2021, which was removed to the Supreme Court of Queensland on his application. This application was subsequently amended on 6 November 2021. On 10 December 2020, a judge of that Court, Crow J, heard the application, and dismissed it on 18 December 2020: see [64]-[65] above. His Honour concluded that s 15(1) required that Mr Pauga be brought physically before the magistrate, but found that he had been brought physically before a magistrate as soon as practicable, on 21 September 2020, with the delay being due to the circumstances arising out of the COVID-19 pandemic. As noted above, Mr Pauga did not appeal from that decision, although he did unsuccessfully seek to reopen the application. 134 Mr Pauga's challenge to the initial remand was addressed by the primary judge in the first proposition (see PJ [243]-[251] and [30(a)] above), although aspects of his arguments were also addressed when his Honour considered the statutory scheme. 135 Given our conclusions below, there are three topics in relation to remand which need to be addressed. 136 First, the primary judge acceded to Mr Pauga's argument that s 15(1) required him to be brought physically before the magistrate: see PJ [26]-[32]. Mr Pauga contends that the primary judge was correct. His Honour's conclusion is challenged by Samoa's second notice of contention: see [35(b)] above. For the reasons below at [147]-[171], Samoa's contention is correct. On the day of his arrest, 20 August 2020, Mr Pauga was brought before a magistrate as required by s 15(1) by reason of being legally represented at that hearing. 137 Second, the primary judge concluded by the principles of res judicata, issue estoppel and abuse of process, that Mr Pauga could not contradict the conclusion reached by Crow J that he had been brought before a magistrate as soon as practicable, being the first date upon which he appeared in person: see PJ [246]-[250]. His Honour therefore did not separately consider or determine whether this had in fact taken place as soon as practicable. Mr Pauga contends by appeal ground 2 that his Honour erred in finding that res judicata, issue estoppel and abuse of process applied to a habeas corpus application, while Samoa contends that his Honour was correct. Strictly speaking, this question does not arise because of our conclusion below that Mr Pauga was: brought before a magistrate on the day of his arrest, 20 August 2020; remanded in accordance with the requirements of s 15(1) and (2); and therefore lawfully detained from that point onward. However, for more abundant caution it is best that this ground is addressed. For the reasons below at [181]-[189], his Honour was correct as to the unavailability of habeas corpus because of the concluded view of Crow J in dismissing the same application in substance, such that appeal ground 2, if it arises, must fail. 138 Third, the primary judge also found that s 15(2) did not contemplate a single remand until the proceeding under s 19 had concluded, as contended by Samoa (which would then encompass, as expressly provided, such period or periods as may be necessary for that proceeding to take place). Rather, s 15(2) contemplated a separate remand between each court date, upon the basis that it would be impractical to have a single remand: see PJ [33]-[38]. Mr Pauga contends that this conclusion by his Honour was correct. He further argued before the primary judge, that numerous of the subsequent remands were also not valid, and reasserts those unsuccessful arguments before this Court by additional grounds of appeal. For completeness, it should be noted that no purpose for remand other than the s 19 proceeding was applicable, as there was no waiver of extradition under s 15A, nor a consent to surrender under s 18 (both of which are also contemplated as a basis for remand by s 15(2)). 139 The primary judge's conclusion that a series of remands was required under s 15(2) rather than a single remand on 20 August 2020 that extended to the end of the s 19 proceeding, is challenged by Samoa's first notice of contention: see [35(a)] above. For the reasons below at [173]-[180], Samoa's contention is correct. Only a single remand was required by s 15(2), to run from the time of Mr Pauga's initial remand on arrest until, relevantly, the completion of the s 19 hearing and the issue of the Warrant of Committal, which then became the basis for remand for the next stage of the extradition process. 140 As a result of those conclusions, the remaining grounds of appeal which address remand do not need to be considered. For completeness, these are as follows. 141 By appeal ground 3, Mr Pauga continues to maintain that his initial detention was unlawful, and that this incurably tainted his detention as unlawful ever since, even after he had appeared physically in person on 21 September 2020. He asserts that is because there must be a continuous chain of lawful detention. Appeal ground 3 therefore does not arise because of the conclusion we have reached that there only needs to be a single remand from the time of arrest until, relevantly, the end of the s 19 process, and that the remand on 20 August 2020 met the requirements of s 15(2) so as to be lawful. For completeness however, if appeal ground 3 had required determination, it would have been decided adversely to Mr Pauga, because the grant of habeas corpus relief requires that detention be unlawful at the time the application is decided, and there is no sound basis for concluding that any period of unlawful detention renders the entire period of detention unlawful for that purpose. Even if there had been a period of unlawful detention between the time of his arrest on 20 August 2020 and when Mr Pauga was physically brought before a magistrate on 21 September 2020, the detention would have been lawful from that point and habeas corpus relief would not be available: see Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43 at [47]-[48] and [67]-[72] per Kiefel CJ, Gageler, Keane and Steward JJ; applied in Commonwealth of Australia v MZZHL [2021] FCAFC 191; 289 FCR 135 at [29]. 142 By appeal ground 7, Mr Pauga maintains his argument before the primary judge that each subsequent remand had to have a bespoke written warrant of remand, and the fact of there being a remand without such documentation did not meet the continuing requirements of s 15(2). His Honour rejected that argument at PJ [267]-[275]. This argument does not require determination in light of the conclusion reached that there only needed to be single remand until the end of the s 19 proceeding, and the documented remand that took place on the day of Mr Pauga's arrest on 20 August 2020 met the requirements of s 15(2). 143 Similarly, appeal ground 9, which challenges the conclusion at PJ [273] that Mr Pauga had not discharged the burden of showing that the remand documents used for subsequent remands were invalid, does not arise in light of the conclusion below that there was a single valid remand on 20 August 2020: see discussion at [172] and [196(b)] below. 144 Finally, appeal ground 11 challenges the primary judge's conclusion that the remand under s 15(2) required by s 19(1)(a) only had to be a remand in fact (not that it had to be proven that it was valid and lawful) and asserts that there had to be an identified chain of remands. This ground does not arise in light of the conclusion below that there was a single valid remand on 20 August 2020 that was documented. 145 Had any of the appeal grounds 7, 9 or 11 required determination upon the assumption that more than one remand was required by s 15(2), they would have failed because no error on the part of the primary judge was demonstrated. 146 It follows from the above that a determination in relation to issues raised by s 15 is only required on appeal ground 2 (for more abundant caution), and for the two notices of contention.

Does "brought before" in s 15(1) mean "brought physically before"? 147 At the appeal hearing, leave was granted to Samoa to file a second notice of contention on the meaning of "brought before" in s 15(1), challenging the primary judge's conclusion that this required Mr Pauga to be brought physically before a magistrate: see PJ [26]-[32]. This topic was the subject of oral submissions during the appeal, and was also addressed by way of post-appeal hearing written submissions (after the notice of contention was formally filed). 148 The submissions for Samoa are reflected in the reasoning regarding statutory construction below, as are the submissions made about the primary judge's reasoning. Samoa submits that a requirement of physical appearance to meet the obligation imposed by s 15(1) is not supported by common law or criminal law reasoning. Samoa also submits that such reasoning should not be used to construe the Extradition Act, characterising that as an error pervading the reasoning of both the primary judge and Crow J on this topic. 149 The submissions for Mr Pauga draw an analogy between arrest and detention in criminal and other curial processes, seeking to support the conclusion reached by the primary judge that s 15(1) required him to be physically brought before the magistrate, and that this requirement could not be met by him being legally represented. The substance of Mr Pauga's submissions is that this Court should uphold the reasoning of the primary judge, including the observations in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 98, addressed below. Mr Pauga also relied upon the language of other provisions of the Extradition Act, however those provisions did not assist with the interpretive task at hand. 150 By s 3(a), the law relating to extradition is expressly codified to provide for proceedings by which judicial officers of courts acting personum designata may determine whether a person is to be, or is eligible to be, extradited, without any determination of guilt or innocence, to New Zealand and to "extradition countries". Extradition countries are: those countries, other than New Zealand, declared by regulation (including some lesser territories or places); and foreign states to which the former Extradition (Foreign States) Act 1966 (Cth) (Foreign States Act) had applied that have not been excluded by regulation. This is achieved by a "tightly structured scheme" by which a person sought to be extradited by another country may be surrendered: Snedden at [6] and [100]-[101] (Middleton and Wigney JJ, with Pagone J agreeing). As already explained, that scheme is required to be applied by a number of distinct stages. Each stage involves a binary decision on stated criteria either bringing the process to an end, typically with a direction to release the person, or allowing it to progress to the next stage: Snedden at [100]. 151 The meaning to be given to "brought before" in s 15(1) is a question of statutory construction, to be determined in accordance with the principles summarised in Snedden at [96]-[99], also see [99] above. The subject matter, structure and scheme of the Extradition Act are important contextual considerations for interpreting the meaning to be given to particular provisions: Snedden at [100], following the quote at [99] from Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; 222 FCR 13 at [75] about the relative importance of context in different statutory settings. 152 In particular, regard must also be had to Australia's treaty and international law obligations, rather than common law presumptions as to liberty and bail: United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 at [58] and [72]. From this, it follows that general principles concerning personal liberty in other contexts, including such cases as Williams v The Queen [1986] HCA 88; 161 CLR 278 relied upon by Mr Pauga, concerning the rights of persons arrested and charged with criminal offences, provide limited, if any, assistance to construing provisions of the Extradition Act: Snedden at [112]. 153 The Extradition Act regime in s 15 that applies after arrest under an extradition arrest warrant, requires the person the subject of an extradition request to be brought before a magistrate or eligible judge, and requires them to be remanded, ordinarily in custody, pending proceedings for waiver of extradition, consent to surrender, or determination of eligibility for surrender. As was pointed out in Tsvetnenko v United States of America [2019] FCAFC 74; 269 FCR 225 at [30], the very limited nature of the discretion to be remanded on bail bestowed by s 15(2) is only enlivened when the threshold of special circumstances has been established. There is no decision required to be made under s 15(1), and the extraditee must be remanded under s 15(2). That said, as a practical matter, including in this case, there will usually be a need, independently of s 15(1), for procedural orders or directions to allow for the obtaining of instructions, the making and hearing of any bail application, and the preparation of the s 19 proceeding (or for a waiver or consent proceeding). 154 Generally, any comparison with criminal proceedings must be approached with considerable caution. A defendant's appearance via a lawyer is commonplace for the first mention of a matter in a criminal court (even when a defendant has been remanded in custody by the refusal of police bail). Ordinarily, that position is only required to be departed from when there is a hearing at which substantive rights are being determined. In that context, it is difficult to see why the requirements would be more onerous and less practical for the initial stage of an extradition proceeding where no such rights are in issue except as to bail, which is tightly circumscribed. It will often be the case that a person who is the subject of an extradition request, no less than a person charged with a criminal offence, will not only be content to appear via a lawyer, but positively may not want to be required to appear in person. This may be for a variety of reasons, including the obtaining of informed legal advice about the extradition proceeding. 155 The live question is what is necessary to achieve the evident objective of s 15(1), namely to ensure that an independent person is seized of the matter, including the due progress and regularity of the extradition proceeding, the mandatory remand required by s 15(2), and, if raised, the question of whether that remand should be on bail instead of being in custody. Yet Mr Pauga maintained that s 15(1) requires such a person to appear in person despite being legally represented, even against their will. Such a proposition may be seen to amount to a triumph of form over the substance of what ss 15(1) and 15(2) require. There is no question that a person the subject of extradition, and arrested for that purpose, must in some way be brought before a magistrate (or eligible judge). The relevant question is whether that must be personally and physically, or whether that can take place by way of a legal representative. 156 Given the reliance placed on Winkler by both the primary judge and Mr Pauga, that case requires closer consideration. The Full Court (Wilcox, Burchett and O'Loughlin JJ) in Winkler addressed the predecessor extradition legislation, the Foreign States Act. Section 15(1)(b) of the Foreign States Act was quite unlike any part of s 15 of the Extradition Act. It provided, in the context of a requisition for the surrender of a person who was then referred to as the fugitive, that once a warrant for apprehension had been issued, the Attorney-General could issue a notice directed to any magistrate before whom that person "may be brought", informing the magistrate that the requisition had been made. Importantly, extradition under the Foreign States Act involved a determination of whether the person was liable to be surrendered, including whether there was sufficient evidence to justify trial, or committal for trial, if the offence had been committed in Australia. Dispensing with the prima facie case aspect of extradition was an important part of the changes brought about by the Extradition Act. 157 In Winkler at 98, Wilcox and O'Loughlin JJ, in a passage quoted at PJ [29], said of s 15(1)(b) of the Foreign States Act (emphasis added by the primary judge): If a person arrested under a warrant was remanded in custody to appear at a later date, it would be a natural use of language to describe him as being 'brought' before the magistrate on the remand day. Perhaps the phrase 'may be brought' less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is 'brought' to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions. 158 The primary judge's reliance on the bolded part of the above passage was misplaced. Winkler was not concerned with the interpretation of the provision dealing with the aftermath of the initial arrest of Mr Winkler. That was to be found in the former s 17(1) of the Foreign States Act, parallel to the current s 15(1) of the Extradition Act, providing that Mr Winkler "be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended". Thus, Winkler was not concerned with Mr Winkler's initial appearance before a magistrate, after which he was remanded on bail. Nor was Winkler concerned with any obligation imposed upon those who arrested Mr Winkler. Rather, it was concerned with whether Mr Winkler's obligation to attend court subsequently in accordance with his prior remand and bail conditions, and the expressly finite remand period of not more than seven days discussed below, fell within the words of s 15(1)(b) of the Foreign States Act. That is, this aspect of Winkler concerned the question of whether Mr Winkler in fact physically appearing, as he was required to do by the terms of his remand and bail, amounted to him being "brought before" the magistrate as contemplated by the former s 15(1)(b), a provision quite unlike the present s 15(1). 159 Thus, Winkler was dealing with a different legislative provision, for a different purpose, using different language in a markedly different extradition regime. It cannot safely be relied upon to determine the meaning to be given to the requirement that Mr Pauga be "brought before" a magistrate in s 15(1) of the Extradition Act. 160 The primary judge's reasoning, going beyond Winkler, was that a requirement for there to be a physical appearance before a judicial officer acting administratively persona designata, afforded a substantial protection for an arrested or detained person. This is because it would enable such a judicial officer, albeit personum designata, to question the person directly: see PJ [30]. His Honour reasoned that this was not just for the purposes of identification, but also to hear any complaint, and to determine whether any answers to questions were being given free from threat, intimidation or other oppressive conduct arising from the circumstances in which the person is being held. His Honour also noted the limits on the role of a magistrate in relation to identification for the purposes of extradition proceedings identified in Marku v Republic of Albania [2013] FCAFC 51; 212 FCR 50 at [74]. 161 Respectfully, the primary judge's reasoning misconceives and thereby overstates the role of a magistrate. As the Full Court observed in Marku at [61]-[62], even at the more substantive s 19 stage, and therefore no less at any earlier stage, a magistrate has no jurisdiction to determine any question of identity, for which remedies are available: also see Marku at [65]-[66]. Rather, a magistrate is required to assume, and not independently determine, that the person on remand is validly remanded and is an extraditable person: see Kainhofer at 538-9, 541 and 552. In any event, it is not readily apparent how any of those objectives relied on by the primary judge are not met by a defendant appearing via legal representation, acting on instructions. 162 The primary judge also placed significance on the use of the common law phrase "brought before" in s 15, which his Honour found usually means "physically brought before" in the context of arrest and detention. There are two difficulties with that analysis. First, it is well established that when a court is interpreting a code, which the Extradition Act is expressly stated to be at s 3(a), while there may be occasions when it is appropriate to refer to the common law, such as for a technical legal term or an interpretation that is well established, generally speaking, common law principles will have limited application or utility: cf R v JS [2007] NSWCCA 272; 230 FLR 276 at [145]-[150], especially [149]. Second, his Honour's analysis involves inserting into a statute the word "physically" that parliament must be taken deliberately to have chosen not to use, in the course of substantially changing the previous extradition regime. In the absence of any basis for a finding of special circumstances (which is very hard to surmount, especially at the time of the first appearance before a magistrate), the role of a magistrate is tightly constrained at all stages, but especially at the s 15 stage. 163 Finally, the primary judge found that the effectiveness of the protection afforded by the common law requirement of being brought physically before a magistrate would be substantially undermined if it could be met by some other form of appearance, noting that the Extradition Act does not make provision for, for example, remote appearance. His Honour also noted that is in contrast to the case for an arrested or remanded person facing criminal charges under s 178C of the Justices Act 1886 (Qld). The above observations apply to this reasoning as well. 164 As explained above, Mr Pauga relied on an analogy with the criminal law to support his submission that physical appearance in person was required. In that context, and with due regard to the caution in relying upon criminal law practices and procedures on this topic under the very different regime in the Extradition Act, it is useful to consider whether there was or is any invariable practice of a person appearing in person in criminal proceedings. If that is not necessarily so, it casts doubt on any residual value of any interpretive analogy being drawn. 165 In McKellar v Director of Public Prosecutions [2014] NSWSC 459; 240 A Crim R 285, Adamson J (as her Honour then was), considered the procedure to be adopted when an accused person was not present under s 196 of the Crimes (Appeal and Review) Act 2001 (NSW). In doing so, her Honour traced aspects of the history of English and thereby New South Wales legislation, and cases on that legislation and common practice, that permitted a person to appear in person or by a lawyer, going back to the mid-19th century. This even extended to a lawyer entering a guilty plea on behalf of an absent client, which remains commonplace at least in New South Wales. At [29] of McKellar, her Honour quoted from the predecessor to the New South Wales Court of Appeal, being the Full Court in Banco, in Ex parte Hughes; Re Moulden (1946) 47 SR (NSW) 91 per Jordan CJ, with whom Street J agreed, who said at 95: … it is well settled that when a trial before justices is proceeding in the ordinary way, by an information laid before a justice followed by a summons, the accused is not required to appear in person; he may appear by counsel or attorney. This is recognised by s 77 of the Justices Act, and has been decided by the cases of Bessell v Wilson (1853) 1 El & Bl 489 at 499-500; R v Thompson [1909] 2 KB 614 and R v Montgomery (1910) 102 LT 325 … there was nothing to prevent the magistrate from proceeding with the trial, since the accused was represented by an attorney who was ready, and wished, to go on. 166 For completeness, and to support the observations above about criminal defendants not always wanting to appear in person but rather wishing to do so via a lawyer, we note that the defendant in Ex parte Hughes sought to compel the magistrate to hear his case in his absence. Davidson J at 97-98 noted a longstanding right not to appear, but to be represented by counsel or attorney, citing R v Thompson [1909] 2 KB 614, Martin v White [1910] 1 KB 665 at 676 and Ex parte Dunn (1904) 4 SR 486, each of which upheld the right of a defendant to appear by counsel. Thompson refers to the case cited in the above quote from Ex parte Hughes, of Bessell v Wilson (1853) 1 El & Bl 489 at 499-500, a case also cited by Adamson J in McKellar as Bessell v Wilson (1853) 118 ER 518, where the original report is reproduced. 167 In Bessell v Wilson, an alderman apparently performing a function akin to that of a magistrate convicted a defendant by reason of him not appearing in person (but only by his counsel and attorney) in response to a criminal charge under copyright legislation, and issued a warrant for his arrest. The defendant successfully sued the alderman for false imprisonment after the conviction was quashed for the reasons his lawyers had sought to argue in his absence. Lord Campbell CJ said at [499] that it could not be justly said that the defendant "did not appear according to the exigency of the summons", being the legal obligation imposed upon him, because (emphasis added): At the time and place appointed by the summons, the plaintiff did appear by his counsel and attorney; and his counsel earnestly pressed that he might be heard to shew cause, on the ground that the conviction was illegal and void; but the alderman refused to hear him, because the party was not personally present. We think that, in so refusing, the alderman was wrong in point of law. The legitimate object of the summons did not render necessary the personal appearance of the party: and that object might be better answered if he appeared by his counsel and attorney. In criminal cases, after a verdict of Guilty, this Court requires the personal appearance of the party: but, generally speaking, the Judges are contented to hear any question of fact or law discussed by counsel without the personal appearance of the client. 168 For completeness, the Lord Chief Justice additionally said at [500] that: It is unnecessary to consider the general law respecting the occasions when a party in the course of legal proceedings is privileged to appear by attorney or counsel, as the Legislature has plainly intimated that, upon such an occasion as that which we are considering, an appearance by counsel or attorney is sufficient. The intimation referred to was a general provision that allowed an appearance in person or by counsel or attorney. 169 In Pell v The Queen [2019] VSCA 186, Weinberg JA, with the agreement of Ferguson CJ and Maxwell P, dismissed a ground of appeal that asserted there was a fundamental irregularity in the trial process because the accused had not been arraigned "in the presence of the jury panel", as required by the relevant legislation. That conclusion was not appealed to the High Court. His Honour said (omitting footnotes): [1163] The assumption built into Mr Walker's submission, that the expression 'in the presence of' can have one meaning only, namely, physical presence, seems to me to be misplaced. To assert that the 'ordinary meaning' of the word 'presence' invariably connotes nothing less than physical presence is unconvincing. It ignores the requirement that legislation be read purposively. Moreover, it can be argued that rather than merely construing the word 'presence', it requires an additional word, 'physical', to be read into the statute. [1164] The interpretative task is facilitated by having regard to both history and context. As indicated, the history of the provisions under consideration makes it clear that they were not intended to perform the role for which Mr Walker contended. The textual analysis suggests that when the legislature has omitted, or not included, a particular word from a composite expression, a court will not ordinarily re-write the provision so the word or words are 'read in.' Certainly, it will not do so without good reason. In the present case, no such reason suggests itself. [1165] Mr Boyce submitted that the point must surely be that the jury panel in this case were able to see and hear the applicant, quite clearly, as he pleaded not guilty to each of the charges. The use of a video-link, in circumstances such as those which prevailed in the present case, did not constitute even the slightest impediment to the process of arraignment. It did not in any way impinge upon the jury panel's capacity to witness that process. [1166] I should add that the use of a video-link is now commonplace in criminal trials throughout this country. It could hardly be suggested that the right of an accused to confront his or her accuser has somehow been diminished by the fact that technology enables that process effectively and justly to be undertaken. [1167] I accept that there are older authorities which suggest that the term 'present', in a statutory context, should ordinarily be interpreted as 'physically present.' In the light of modern technology, such a narrow and restrictive interpretation of that term seems, to me, not to be warranted. Many meetings are routinely conducted using video-conferencing facilities. It is plain that, depending upon the form of any legal requirement stipulating 'presence', the use of such facilities is readily accepted, and 'presence' can thereby be achieved, as it was here. 170 While the basis for a person accused of a criminal offence being able to appear by counsel or solicitor is both in common law and statute, that also reflects the practicalities of such litigation. Extradition is required to be no less practical. There is nothing in the text of s 15, let alone s 15(1), that requires appearance in person, as opposed to an appearance in the legal sense. A person the subject of an extradition proceeding may be brought before a magistrate either by appearance in person, or by being legally represented. 171 It follows that the second notice of contention should be upheld. Section 15(1) was complied with, given that Mr Pauga was brought before the magistrate, in the sense that his lawyer appeared for him before the magistrate on the day of his arrest. No earlier appearance was possible, let alone practicable. He was remanded in custody. That was recorded in writing on a standard form charge sheet adapted to refer to the extradition proceeding, arrest and remand in custody, to appear on 3 September 2020: see PJ [91]-[92]. It was signed by the magistrate: see PJ [93]. Because of the conclusion reached below about that remand being a single remand to the end of the s 19 proceeding, this was effective to meet the requirements of s 15(2). 172 The primary judge's reasoning at PJ [265]-[269] on what is required by s 15(2) in relation to the fact of remand being necessary, that no written record is strictly speaking required, but that the use of existing criminal proceeding forms is clumsy and inappropriate for recording an executive decision, should be accepted. As the primary judge observed, it would be better to have a bespoke form of documentation for that purpose, as that would help to ensure that the formal record conforms to the language and purpose of s 15. Nonetheless, the form used in this case sufficed. We would go one step further, and recommend that those responsible for conducting extradition proceedings develop bespoke proforma documents for use in all such proceedings, to record in writing each decision made under the Extradition Act during the process (both personum designata by a magistrate or eligible judge, and in any review or appeal proceeding in this Court, including for remand, whether in custody or on bail). That will serve to avoid incorrect impressions being conveyed, and help to ensure consistency in approach.

Does s 15(2) require more than one remand to the end of the s 19 process? 173 The primary judge, when addressing the statutory scheme, stated and succinctly resolved the issue raised, and now challenged by Samoa's first notice of contention, as follows: [34] There is an issue between the parties as to whether s 15(2) contemplates a single remand for so long as is necessary for the required proceedings to be conducted (with the possibility that the remand may be in custody or on bail) or whether it contemplates that there may be a remand from time to time. The divergence in views concerns the meaning of the words 'for such period or periods as may be necessary for proceedings … to be conducted'. [35] Plainly, there is a statutory requirement for a person who has been arrested and brought before a magistrate as required by s 15(1) to then be remanded until the relevant proceedings have been conducted. In my view, the use of the words 'period or periods' indicates that the magistrate or judge has a discretion whether to remand to a nominated time or until the time of the proceedings (if known) and that the exercise of the discretion is to be informed by what may be necessary for the required proceedings to be conducted. The proceedings themselves may be divided up. For example, there may be an initial remand until a date when an application for bail is to be heard. There may be a remand until a hearing at which some preliminary argument as to the validity of the extradition arrest warrant is to be considered. There may be remand until a date when the steps that might be taken before the proceedings are conducted or are expected to be completed. In each case, such a remand would be for a period that was necessary for the proceedings to be conducted even though it was not a remand until a known date when the proceedings were to be concluded. The use of the word 'period' supports the conclusion that the remand must be to an identifiable date so that the duration of the detention (from one point in time to another) is known at the time of the remand. The importance of supervising the duration of the remand also supports such a construction. [36] If such a course were not possible then the person concerned would be required to be remanded in custody until the proceedings were concluded (which is a date that is unlikely to be known when the person is first arrested and brought before a magistrate as required) and therefore would not appear before the magistrate for any intermediate step in the proceedings, or alternatively there could be no intermediate step. Either of those alternatives would be impractical. As to the first alternative, it would be inconsistent with fundamental rights if part of the proceedings could occur without the person concerned being able to appear. As to the second alternative, there is no reason why the conduct of the proceedings must occur at a single hearing. It follows that I do not accept the contention advanced for Samoa that there must be a single remand for the proceedings or that there could be a remand of unspecified duration (being until the relevant proceedings were completed). 174 The practical problem with his Honour's conclusion as to there being multiple remand periods under s 15(2) is at least twofold. 175 First, this does not accord with the language of s 15(2) in referring to a remand for such period or periods as are necessary until, as relevant to this case, proceedings under s 19 had been conducted. This language is more consistent with a single remand for that purpose. 176 In the previous legislative regime, the corresponding provision, s 17(2) of the Foreign States Act set out in Winkler at 83-84, had the words "for a period or periods not exceeding 7 days at any one time", instead of the present words in s 15(2) of "for such period or periods as may be necessary for" the three types of proceeding, including a s 19 proceeding. The former s 17(2) also contained no reference to the remand being for a specific and limited purpose, but rather was apparently for the extradition process as a whole, on a time restricted basis each time, and with bail evidently being more readily available. The legislation therefore changed from the concept of remand covering the entire process, broken into periods of no more than seven days and with bail as a feature, to a single remand from the time of arrest for the purpose only of one or more of three proceedings, with an effective presumption against bail and a binary determination to be made at each subsequent stage, which either leads to the next period of remand, or to the end of the extradition process and release. It is evident that this change to a single remand was deliberate. 177 Second, the primary judge's reasoning conflates: the period of remand; the question of whether that remand is in custody or on bail if special circumstances are established; and the need for Mr Pauga to be present or legally represented at subsequent court dates to manage that stage of the extradition process, potentially giving rise to an obligation to consider the question of bail afresh at every court date, which is contrary to the scheme of the Extradition Act. 178 In Ireland v Dunne [2021] FCA 245; 389 ALR 672, Abraham J said, in rejecting a submission that s 15(2) contemplated successive periods of remand: [65] [T]he remand stage follows the arrest of a person pursuant to an extradition arrest warrant issued under s 12 of the Extradition Act, and ends when proceedings under one of more of ss 15A, 18 and 19 are conducted. Section 15(2) provides the person shall be remanded in custody or on bail "for such period or periods as may be necessary for proceedings under one or more of ss 15A, 18 and 19 to be conducted": and see s 15(5). This reflects that the legislature recognised there may need to be more than one period of remand under any of these stages of proceedings. It follows that the legislature turned its mind to the fact that bail may need to be extended by using the term "period or periods" in s 15(2) (and 15(5)). [66] The practical effect of Mr Dunne's construction as articulated during the hearing, is that even if an extraditee had established special circumstances and been released on bail, and irrespective of the period of time and reason for which the matter is adjourned, the extraditee must necessarily make a fresh bail application and a fresh decision must be made by the magistrate as to whether special circumstances have been established on the material. [67] The provision, considered in context and given its purpose, does not support that proposition. The provision does not specify, in that context, that such application and fresh decision as to whether special circumstance exist has to be made on each occasion. Either, bail has been refused in which case the extraditee can only make another application upon a change of circumstances: s 15(3). Or, if bail has been granted because a magistrate has concluded special circumstances exist, that position would ordinarily continue except for a change of circumstances (for example, the extraditing country contends there has been a breach) until the next stage of the proceedings, for example ss 18 or 19, which requires a decision to be made. It would ordinarily continue for such period or periods as may be necessary under this stage of the proceedings. The return to court during this stage does not compel the necessity for a fresh bail application. That a magistrate must make an administrative order at each appearance to further remand the extraditee, does not alter that. Nor, contrary to the respondent's submission, does the fact that the extraditee is bailed to appear on a particular date. Such an order (which in this matter was that the respondent was remanded on bail to appear on 22 February 2021), is simply to ensure that the extraditee returns to court to enable progress of the proceedings. If on the return to court the matter is adjourned, that can involve a further remand with an order which extends the effect of a decision previously made to grant bail to a further date. The order extending the bail is an administrative device which supports the decision: s 49B of the Extradition Act. [68] There is also no support in the provision, as contended for by the respondent, that absent an application, the magistrate must necessarily consider afresh, whether special circumstances have been established. The respondent's reliance on the obiter comments of Goldberg J in Cabal (No 2) at [19] which describes that the provision contemplates "[s]uccessive periods of remand", does not advance his argument to the contrary. That observation was made in relation to s 15(3) and that it operates at each period of remand. That is, where an extraditee has made a bail application and it is refused, a further application can be made if there is evidence of a change of circumstances under s 15(3) at any of the remand occasions. The Court observed that a further application can be made more than once, if circumstances again change during the period commencing on the date the person is arrested and concluding with the s 18 or s 19 determination. The decision says nothing about a person having been released on bail. 179 We consider that the passage in Ireland v Dunne reproduced above is plainly correct, and that this reasoning should stand in place of that of the primary judge. Section 15(2) in terms requires only a single remand, although it may be over more than one period of time according to requirements of the proceeding to take place. Such remand will ordinarily be in custody because of the difficulty in meeting the test of special circumstances in s 15(6), but it can be on bail if that test is met. The reference in s 15(2) to "such period or periods" is a reflection of the fact that in a given case, there may be a proceeding on a single date (period), or more than one date (periods), for the purpose of one or more of a proceeding for waiver (s 15A), consent to surrender (s 18) or eligibility for surrender (s 19). This ensures that the remand continues until the next stage of the extradition process has concluded and there is either release or remand upon the basis of a different statutory power: see ss 15A(4)(a), 18(2)(a)(i) and 19(9)(a)(i). 180 This interpretation does not preclude mere administrative references to successive court dates during that period of remand. As a matter of course, on each such court date, the person who is the subject of the extradition request will either be physically or remotely present, or represented by a lawyer, or both. They would ordinarily be expected to be physically present at a substantive proceeding, such as that under s 19, but could elect not to be there. It needs to be remembered that although extradition is closely related to criminal proceedings in the sense of facilitating them taking place overseas, it remains a civil administrative proceeding before a magistrate or eligible judge, and a civil curial proceeding by way of review or appeal in this Court: see Vasiljkovic at [33]. As already observed above, there is no determination of guilt or innocence, nor even a determination of a prima facie case to be met since the current extradition legislation was enacted in 1988.

Do res judicata, issue estoppel and abuse of process apply to an application for habeas corpus? 181 In a strict sense, appeal ground 2 on this topic does not require determination because of the finding above that s 15(1) was complied with when Mr Pauga was brought before a magistrate on the day of his arrest, by reason of being legally represented. It follows that there was never any period of unlawful detention giving rise to any issue of habeas corpus. However, against the possibility that we may be wrong about that, it is prudent to address this question, effectively in the alternative. 182 The essence of Mr Pauga's argument is that a person is entitled to go from court to court seeking habeas corpus on the same facts in respect to the same detention. On that argument, he is not estopped and nor is it otherwise an abuse of process for him to run the same argument rejected by Crow J before the primary judge. 183 Mr Pauga relies upon decisions in quite different circumstances and legislative regimes, and upon a broader abstract concept of a general right to liberty under the common law of Australia. He pays little heed to the basis for his detention being the terms of the Extradition Act and its application to him. In doing so, he criticises the authority under the Extradition Act relied upon by Samoa, which concerned final judgments in relation to the operation of that Act, rather than habeas corpus applications per se. However, it is cases in that legal framework, or those that can properly be applied to that framework, such as immigration detention under the Migration Act 1958 (Cth), that really matter. The application of habeas corpus principles in quite different circumstances matters less, especially under state or territory law, although useful guidance may still be found. Rights at common law, such as to liberty addressed by habeas corpus, can be changed, replaced, adjusted, or even eliminated by legislation passed within the legislative competence of the Australian Parliament: see Coco v The Queen [1994] HCA 15; 179 CLR 427 at [9]; Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [42]-[43]. To the extent that any common law right conflicts with the Extradition Act, including as to liberty, the latter prevails, or at least qualifies or limits the operation of the common law right. 184 Mr Pauga does not assert that he was not trying to bring, in substance, the same application as he had before Crow J, but rather that he was entitled to do so. It is not to the point, as relied upon by Mr Pauga, that Samoa did not seek to replicate the evidence that was before Crow J before the primary judge. That submission presupposes that a habeas corpus application brought in the context of detention pursuant to the provisions of the Extradition Act is immune from the ordinary operation of res judicata, issue estoppel and, most relevantly, abuse of process. That reliance assumes the correctness of his argument. 185 Samoa correctly notes that while the primary judge cites res judicata, issue estoppel and abuse of process as the basis for his finding that Mr Pauga was not entitled to re-litigate the question of whether he was not detained in accordance with s 15, the substance of his Honour's reasoning was directed more to abuse of process. The relevant abuse was to seek to re-litigate precisely the same question as had been determined adversely by Crow J, namely whether Mr Pauga had been brought before a magistrate as soon as practicable. 186 The core and substance of Samoa's submission is that in order for Mr Pauga's argument as to his entitlement to raise the same question as determined adversely by Crow J to be successful, this Court would need to find that the following authorities were all wrong on this topic: Vasiljkovic v O'Connor [2010] FCA 1246; 276 ALR 326 (Vasiljkovic 1st instance) at [54]-[61], with a focus on abuse of process, and upheld on appeal by Vasiljkovic v O'Connor (No 2) [2011] FCAFC 125 (Vasiljkovic Full Court), especially at [15]-[16], [22] and [28]; Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727 at [23]-[37], in particular referring to both Vasiljkovic cases at [26]-[28]; and Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 at [55]-[56]. 187 In Vasiljkovic 1st instance, Edmunds J at [60], in response to an application for a writ of habeas corpus, found that a prior determination that resolved that detention in the course of extradition proceedings was lawful and precluded the application before his Honour by the operation of the rule of res judicata. His Honour concluded that, as a result, there was no discretion to allow the proceeding to continue, and by the operation of law the applicant was not able to maintain the proceeding because the plea of res judicata, if made out, is a complete bar to the claim (as the cause of action is extinguished by the first judgment). In Vasiljkovic Full Court, in dismissing the appeal, Jessup J, with whom Keane CJ and Dowsett J agreed, expressly held at [22] that this aspect of Edmunds J's decision was the clearest of cases for the application of the principle of res judicata to a claim of habeas corpus. Once a further claim of habeas corpus can be precluded by res judicata, there is no logical reason why other protections of the judicial process, such as issue estoppel and abuse of process, should not apply. 188 Mr Pauga maintained his explicit stance that there was no barrier to endless applications for habeas corpus, notwithstanding that Vasiljkovic 1st instance was also approved of by the Victorian Court of Appeal in Censori v Adult Parole Board of Victoria [2015] VSCA 254; 254 A Crim R 455 at [38]-[62]. Those passages in Censori involved analysis of a range of authorities, including those relied upon by Mr Pauga. The Full Court concluded that abuse of process remained applicable to an application for habeas corpus, in the context of a statutory regime for the interstate transfer of prisoners, authorising imprisonment that had been found to be valid much earlier. One of the grounds of appeal in that case was that the primary judge had erred in relying upon Vasiljkovic 1st instance in deciding that it would be an abuse of process for Mr Censori to re-litigate issues concerning habeas corpus that had been conclusively determined in earlier proceedings. The Court of Appeal in Censori observed at [62] (footnotes embedded; emphasis added): The judge in the present matter held that the application was an abuse of process, in so far as the re-litigation of "the issues of the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy, and of the [appellant's] status in Victoria as a person subject to life imprisonment, would involve a clear and direct collateral attack on the decision of Harper J", contrary to the public interest in the finality of judicial decisions and raising the prospect of inconsistent decisions of the Court: Censori v Gillard (2015) 45 VR 605; 249 A Crim R 486 at [77]. It followed, applying general principles concerning abuse of process, that the decision of Harper J as to those matters was binding in the present proceeding. Apart from cases concerning those general principles, the judge referred to the decision of Edmonds J in Vasiljkovic v O'Connor (2010) 276 ALR 326, in which an application for habeas corpus was dismissed as an abuse of process because it sought to re-litigate matters raised in an earlier proceeding for review. This case shows, although it did not concern a further application for habeas corpus, that the principles of abuse of process apply to proceedings seeking relief by way of habeas corpus. 189 In light of the above, we adopt the pithy conclusion by Jackson J in Bethell at [36], finding "any proposition that habeas corpus is in some special category which prevents the court from restraining abuses of its process to be incorrect". Both Jackson J and the primary judge applied Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507 at [24]-[26], as to abuse of process. The attempt by Mr Pauga to re-agitate substantially the same arguments that had failed before Crow J was clearly an abuse of process of the kind identified in Tomlinson. The primary judge was correct not to countenance it. Appeal ground 2, if it arises at all, must fail.

Personum designata 190 This topic: (a) directly covers appeal grounds 4, 5, 8 and 10, which are directed to the contention that the s 19 hearing, and the steps taken prior to that hearing were not conducted personum designata; and (b) collaterally covers appeal grounds 6 and 12, which are directed to the notion that for the jurisdiction under s 19 to be exercised personum designata, s 19(1) requires a specific application to be made to the primary magistrate, not merely made to a prior magistrate and then passed on to the primary magistrate. 191 The central proposition underpinning all of these appeal grounds, as advanced unsuccessfully before the primary judge, was the contention that both at the initial stages in the Queensland Magistrates Court following Mr Pauga's arrest on 20 August 2020, and at the s 19 hearing on 8 and 9 July 2021, the proceedings were conducted by a magistrate as a member of a court, not, as required, by a magistrate "acting in a personal capacity", referring to the executive jurisdiction bestowed personum designata by s 45B(1). 192 The primary judge succinctly identified the substance of these arguments, presented in a non-differentiated way, as constituting two quite distinct aspects as follows at PJ [68]: It is appropriate to differentiate between two distinct aspects of the way the claim was put. First, it was said that the proceedings conducted by the magistrates were conducted in circumstances that had the characteristics of judicial proceedings by reason of the place where those proceedings were conducted (a court building), the physical attributes of the court rooms used for the proceedings, the listing and announcement of the proceedings, the way in which the magistrates were addressed in the course of the proceedings and the way in which orders were made and carried into effect. Secondly, it was said that in certain respects what was said and done by particular magistrates indicated that they misunderstood the nature of the power that they were exercising. 193 The first aspect, which may be regarded in the present circumstances as one of form, devoid of any real substance, was swiftly disposed of by the primary judge by reference to practicality and authority in terms that are plainly correct. These arguments warrant no more than reproduction and emphatic endorsement of his Honour's reasoning and conclusions, including as to the inherent weakness of this aspect of the argument advanced by Mr Pauga: [69] It is necessary to place the first of these two aspects in the relevant practical context. The Extradition Act entrusted the relevant statutory authority to persons who had been appointed as magistrates. It required those magistrates to conduct hearings for the purposes of the extradition proceedings of persons who were under arrest and, unless released on bail, were to be held in custody. Therefore, as a matter of practicality the hearings that were required to be conducted for the purposes of the Extradition Act needed to occur at a place where it was possible to deal in an appropriate way with an arrested person who was being held in custody (or was to comply with bail conditions). Court rooms were an obviously suitable place for such hearings. Indeed, one may infer from the nature of the proceedings and the judicial office held by the persons who could exercise the administrative authority conferred by the Extradition Act that the legislation contemplated that those persons would use the court rooms and other facilities available to them as judicial officers in order to conduct the administrative proceedings. [70] As to the nature of the power of a magistrate or eligible Judge when conducting extradition proceedings under the Extradition Act, in Dutton v O'Shane [2003] FCAFC 195; (2003) 132 FCR 352] at [159], Finn and Dowsett JJ said: It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on 'the admissibility of evidence', on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative. [71] Further, as was observed by French CJ in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [36], where an eligible judge is appointed by legislation to discharge a substantial non-judicial function, then the hearing of an application before the judge under the legislation 'will yield a decision which is closely linked to the exercise of jurisdiction conferred on the Supreme Court by the Act. It is very likely to involve the use of the facilities and services of that Court'. Although the point was being made for a different purpose, implicitly such a course is appropriate and indeed is to be expected. [72] Finally, there is no suggestion that those who were acting for Mr Pauga were under any misapprehension as to the administrative nature of the proceedings. Indeed, as will emerge, they went to rather extraordinary lengths to emphasise that aspect in ways that, at times, were both unhelpful and supercilious. Therefore, it cannot be said that they did not understand the character of what was occurring. Likewise, those acting for Samoa clearly understood the nature of the proceedings. [73] In those circumstances, there is a distinct air of unreality in the protests made before the magistrates and in the submissions made in these proceedings to the effect that there were aspects of the way things were done that had the character of judicial proceedings. If those participating on behalf of the parties to the proceedings well understood the nature of the proceedings, all those contextual aspects were of no moment. 194 The primary judge therefore put aside the first aspect as being, in effect, form without substance. His Honour was correct to do so, especially by reliance on authorities that are directly relevant in the area of extradition generally and the Extradition Act in particular, rather than cases dealing with the general topic of personum designata in very different contexts, and indeed different countries such as Canada, which were relied upon by Mr Pauga. 195 The primary judge considered that the second aspect, that the magistrates who had any aspect of this extradition proceeding before them, but especially the primary magistrate, misconceived the nature of the power or authority being exercised, warranted closer consideration. His Honour concluded again what mattered was the substance of what had taken place: see PJ [74]-[75]. The primary judge observed that on this aspect, Mr Pauga had not differentiated from the first aspect in the way it had been put. None of the grounds of appeal seem to take direct issue with the conclusions his Honour reached on this more substantive aspect, but they persist with the approach of conflating the two aspects by continuing a focus on form rather than substance. As already noted, and repeated below, it is the substance of what took place that is determinative. Although inadequacies of form can undermine and in some cases overwhelm substance, that is not what happened in this case, as his Honour effectively and correctly found. 196 Each of appeal grounds 4, 5, 8 and 10 must be rejected for the following reasons: (a) In deciding what the primary judge identified as the second proposition referred to above at [195], his Honour correctly rejected the proposition that it had been demonstrated that any of the magistrates purported to exercise judicial power or misunderstood the power that they were exercising (see PJ [252]-[262]), concluding at PJ [262]: The evidence of the exchanges between counsel and the Primary Magistrate at the July Hearing and earlier hearings was insufficient to establish that her Honour misunderstood the nature of the power that was being exercised. The use of the Form 44s and other forms simply reflect the adoption of those instruments for convenience. The contents of the documents makes clear that they were prepared in respect of extradition proceedings. For reasons that have been given, the adoption of such procedures is a course that is to be expected. Those matters did not call in question whether the Primary Magistrate (or other Queensland magistrates who dealt with the remand of Mr Pauga) properly understood the nature of the power they were exercising. (b) Similarly, the primary judge at PJ [265]-[274], rejected the third proposition referred to at [30(c)] and [172] above, which asserted that the court forms that had been adapted for use in the extradition proceeding were invalid, and related arguments. As previously observed, while his Honour was critical of the clumsy and inappropriate adapted use of such documents in the absence of prescribed forms to record court appearances and continued remand (which did in places, at first blush, create the possible impression of the exercise of judicial power), his Honour concluded that the forms used nonetheless recorded what had in fact taken place. That is, an executive process carried out personum designata, not a judicial process or the exercise of judicial power. Except to the extent that the conclusions his Honour reached reflect the view that multiple remands were necessary under s 15(2) (addressed above at [173]-[180]), which has been successfully challenged by Samoa, no error on the part of his Honour has been demonstrated. As noted above at [172], we recommend that bespoke forms be developed to ensure that the forms used, on their face as well as in substance, they reflect the executive process taking place, and the executive powers being exercised. 197 As to: (a) collateral appeal ground 6, which in substance contends that there needed to be a separate written application made to the primary judge, not merely an oral application made to a prior magistrate; and (b) collateral appeal ground 12, which in substance contends that once a s 19 application has been made to one magistrate, because it is a personal function, it cannot be passed on to be heard by another magistrate (here, the primary magistrate), both formed part of the arguments advanced by Mr Pauga. Both were rejected by the primary judge as part of the consideration of the nature of the proceeding and as part of the determination of the sixth proposition: see PJ [60]-[61] and PJ [281]-[288]. His Honour correctly concluded, for the practical and entirely conventional reasons he gave, that there was no requirement either to make a written application for the purposes of s 19 once the extradition proceeding was on foot or, in this case, to make a separate application to the primary magistrate. The latter was advanced upon the misconceived basis that only this could cause the primary magistrate to be acting personum designata. The primary judge correctly found that an application already made to one magistrate could be passed on to another. In any event, his Honour found that even if a separate application was needed, it had been made. Grounds 6 and 12 must therefore fail. 198 It follows that all of the grounds directly or indirectly challenging the primary judge's conclusions on or related to the topic of personum designata must be dismissed.

Bail 199 At the conclusion of the hearing of submissions on the appeal, cross-appeal and grounds of contention, Mr Pauga applied for bail. For clarity, it is convenient in this section to refer to the eighth respondent, Samoa, alone as the bail respondent, who has at all times opposed the grant of bail. The Attorney-General did not participate in the bail application aspect of the proceeding below or on appeal. 200 Mr Pauga had originally sought the grant of bail by way of interlocutory relief in his original notice of appeal filed on 3 October 2022, based on s 23 of the Federal Court of Australia Act 1976 (Cth), seeking to have the application heard by a single judge prior to the appeal. That application was maintained in each subsequent iteration of the notice of appeal. On 10 November 2022, Mr Pauga moved for that interlocutory relief before Bromwich J, but after that application had been heard and judgment reserved, he sought (with the concurrence of the bail respondent) that judgment not be delivered and the bail application instead be heard and determined by the Full Court. 201 After hearing the bail application, the Full Court adjourned briefly before resuming and dismissing that application. 202 Mr Pauga's bail application was refused before there had been any determination of the appeal, the cross-appeal or two notices of contention. As each of those processes has now been determined adversely to him, that reinforces the conclusion we made at the time, in the sense that his position for the grant of bail is now weaker than when it was refused, but does not form part of the reasons for refusing bail. For completeness, it should also be noted that given the conclusions reached on the cross-appeal, Mr Pauga's detention is no longer under s 15(2) because the extradition process has moved past that basis for remand, to remand for the purpose of the fourth stage of extradition proceedings, namely surrender pursuant to the restored Warrant of Committal. 203 The following are our reasons for refusing bail.

Background 204 It is appropriate to recall that there were two separate proceedings before the primary judge, with bail applications being made and refused in both: (a) the s 21 review from the s 19 findings of the primary magistrate, which was dismissed by the same primary judge, with the decision and reasons published the same day as the decision and reasons the subject of this appeal: Pauga v Samoa, see above at [33]; and (b) Mr Pauga's original habeas corpus proceeding before the primary judge, giving rise to this appeal proceeding. 205 Bail was refused by the primary judge as part of the s 21 review proceeding because Mr Pauga was unable to meet the test of special circumstances for the grant of bail as required by s 21(6)(f)(iv): see Pauga v Samoa at [53]-[60]. There has been no appeal from the primary judge's orders dismissing the s 21 appeal, nor any application for leave to appeal from his Honour's decision to dismiss the application for bail made in that proceeding. 206 Although Mr Pauga was partially successful in the habeas corpus proceeding before the primary judge upon a finding of a denial of procedural fairness in the proceedings under s 19, he wholly failed in the substance of his habeas corpus case. His Honour dismissed the bail application despite Mr Pauga's limited success at that stage, and subsequently gave reasons for that refusal at the end of his reasons: see PJ [426]-[440]. There has been no appeal from the primary judge's orders refusing bail in this proceeding, nor any application for leave to appeal from his Honour's decision to refuse bail. 207 The present bail application is therefore a fresh interlocutory application in this appeal proceeding. Strictly speaking, no regard needs to be had to the primary judge's reasons for refusing bail given that this is a fresh bail application, rather than an appeal or review. However, his Honour's reasons remain generally relevant and in any event, that reasoning is partially embraced by Mr Pauga and is opposed by the bail respondent. 208 In considering, but refusing, the grant of bail in the habeas corpus proceeding, the primary judge characterised the bail application brought by Mr Pauga as seeking to invoke a common law jurisdiction to grant bail, where the Court's jurisdiction to grant relief in the nature of habeas corpus was invoked: see PJ [427]. His Honour found that there was merit in the argument advanced by Mr Pauga that there is a substantive difference between: a case in which there has been a valid exercise of executive power conferred by the Extradition Act, such that the statutory test for the grant of bail applies; and a case in which that exercise of executive power is invalid, such that a common law supervisory jurisdiction and power to protect the right to liberty from detention without lawful authority applies: see PJ [428]-[430]. 209 That much may be accepted if there has been a finding of invalidity, or indeed if one of the stages of extradition are resolved in favour of the person who is the subject to the proceeding, and that person is still detained despite provisions of the Extradition Act requiring release. In circumstances such as that, a habeas corpus application is a mechanism by which the ordinary operation of the Extradition Act can be enforced. Although that could be achieved just as readily by seeking relief in the nature of mandamus to compel release in accordance with the terms of the Act that apply when a determination has been made that requires or compels release: see, for example, ss 7(1)(c), 17(2A), 19(1)(a), 21(2A)(a) and 22(5)(a). 210 The primary judge found that the common law basis for bail applied not just when there had been a finding of invalidity, but when a habeas corpus application is made alleging invalidity of the detention of a person the subject of an extradition proceeding, and implicitly at least, such an allegation having some substance and therefore some serious prospect of resulting in release from detention. Upon that basis, his Honour determined that Mr Pauga's application for bail was to be distinguished from an application for bail under the Extradition Act as addressed by the High Court in Cabal, in which the provisions of the Act had been validly invoked: see PJ [430]. His Honour reasoned that otherwise the invalid invocation of an extradition proceeding would justify subjecting a person to restraints upon their liberty with bail only in special circumstances, a barrier to liberty that would not otherwise arise. This reasoning on its face only properly applies when the detention is found to be invalid, not just alleged to be invalid. 211 The primary judge then turned to English and Australian case law, as to when a common law habeas corpus basis for the grant of bail applied: see PJ [341]-[437]. However, his Honour was not persuaded that the limited success Mr Pauga had achieved by a finding of a denial of procedural fairness at the s 19 hearing was such that there was any reasonable prospect of him succeeding in his claim to an extent that would result in his release from custody on the basis that his detention had been unlawful. The primary judge, therefore, was not persuaded that it would be appropriate to order his release on bail: see PJ [438]-[439]. 212 A question for determination as part of considering the application for bail made to this Court was whether, in circumstances in which there has been no finding of invalidity (which was the position at the time of this application), and therefore no basis for concluding that the requirements for release under the Extradition Act have not been complied with, there is any basis for applying a test for bail outside the requirements of that Act. 213 Mr Pauga relied upon written submissions originally furnished to Bromwich J, and despite an opportunity to do so, did not advance any further oral submissions before this Court. He had submitted that there is presently no valid basis for his detention under the Extradition Act or otherwise, relying upon invalidating errors in the extradition process unsuccessfully argued to exist before the primary judge and sought to be maintained on appeal. Those arguments have since failed as detailed above, but relevantly had not been resolved in his favour at the time of the bail application. He also argued that the reasoning of the primary judge at PJ [428]-[437] as to the test for bail was largely correct, save that prospects of success in the extradition proceeding to date or on remittal were not required. 214 The bail respondent's case was that Mr Pauga's application is based on: a misunderstanding of the law that applies to bail, contending error on the part of the primary judge in departing from the bail regime in the Extradition Act; a mistaken understanding of the relevant factors; and reliance on evidence that is mostly more than a year old, although it may be noted that aspects of it are unlikely to have changed. It is therefore submitted by the bail respondent that Mr Pauga has not demonstrated strong prospects of success in his appeal (which has since failed), an absence of any special circumstances attracting the discretion to grant bail, and a failure to demonstrate that he does not pose a real risk of flight.

The test for bail 215 The effect of the primary judge's reasoning on bail in this proceeding seems to be that if there are sufficient prospects of establishing invalid detention under the Extradition Act, it may not merely be a reason for the grant of bail under that Act. Instead, it may also be a reason for the grant of bail at common law based on habeas corpus, and thereby applying a common law discretion with special care and caution having regard to international obligations in extradition. No overt test for the grant or refusal of bail was expressly suggested by his Honour in lieu of the statutory test of special circumstances applying at the various stages of the extradition process under the current legislative regime. We do not agree with that conclusion. 216 One of the cases relied upon by the primary judge was R v Spilsbury [1898] 2 QB 615, a decision on the jurisdiction of the English High Court to grant bail pending extradition proceedings under the Fugitive Offenders Act 1881 (UK), cited and quoted from by the primary judge at PJ [431]-[434]. It should be noted that proceedings under the Fugitive Offenders Act per s 5, were required to be heard by a magistrate in the "same manner, and hav[ing] the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence within his jurisdiction". In that context, the test for extradition on authenticated evidence was a strong or probable presumption that the fugitive committed the extradition offence. No such regime for extradition or bail has existed in Australia since the 1988 enactment of the Extradition Act. No prima facie case of the commission of an extradition offence is required to be established for extradition under that Act, unlike the regime under the Foreign States Act, and a magistrate determining eligibility for surrender is not conducting any kind of criminal proceeding. 217 In our opinion, Spilsbury has little real value to the question of bail in extradition proceedings, statutorily grounded as it is in criminal law reasoning, and where a specific provision has been made for bail, and limitations on bail, by the legislature in the Extradition Act. As the High Court observed in Cabal at [72]: In our opinion, it is an error in a bail application in an extradition matter to take into account that there is "a predisposition against unnecessary or arbitrary detention in custody" [quoting from Holt v Hogan (No 1) (1993) 44 FCR 572 at 579]. The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime"' [also quoting from Holt v Hogan at 579]. Those circumstances may be taken into account in considering the exercise of discretion after special circumstances have been established. But they can play no part in determining whether the applicant has established special circumstances. 218 There does not appear to be any reason why similar reasoning does not apply to any presumption of liberty to be found in habeas corpus. It must give way to statute, although it may inform the approach to be taken to the application of the statutory provisions. 219 So long as an extradition proceeding remains on foot and without any finding of invalidity, and so long as remand as part of that proceeding remains on foot and without any finding of invalidity, the Extradition Act governs whether that remand is in custody or on bail. That is, habeas corpus, if it is needed at all, is necessarily confined to a situation in which detention under such a statutory regime itself is found to be invalid so that the detention is also invalid. This assumes that in such circumstances detention has nonetheless continued contrary to the requirement for release under provisions in the Extradition Act for each stage of the extradition process. 220 We therefore conclude that the bail provisions of the Extradition Act continue to apply to any application for bail by a person detained under that Act, and there is no proper basis for the determination of bail outside that regime so long as that detention has not been found to be invalid. A compelling argument that the detention is itself invalid under the Extradition Act, which is likely to be a very rare event, may contribute to a view that this constitutes special circumstances for the grant of bail pending the determination of the case in which that invalidity is asserted. However, that would remain a determination under the Extradition Act, and the application of the test for bail under that Act, not some departure from that test. 221 Unless and until there has been a finding that the extradition proceeding has itself been found to be invalid, the statutory remand and bail regime prevails. Remand on bail beyond that regime is not possible, and if the extradition proceeding is found to be invalid, the power of remand no longer exists such that there is no need for the equivalent of bail, except when release does not take place as required: as occurred in Chan v Commonwealth, High Court of Australia, Stephen J, unreported, 12 December 1980; see also Matson v Attorney-General [2022] FCA 790 per Logan J at [49]-[51], citing and quoting Chan v Minister for Justice and Customs [2001] FCA 170; 108 FCR 65 at [20]-[21], and finding that such a power does not exist at the s 22 surrender determination stage of extradition. It may be that common law principles underpinning habeas corpus may be relied upon if release as required by the Extradition Act has not taken place, because in those circumstances the test for bail under that Act would not apply, but that is not the present situation.

Special circumstances 222 In addressing the special circumstances test for the grant of bail under the Extradition Act, Mr Pauga asserted that: (a) unlike many extradition cases, he is not a fugitive from justice, a reference to being an Australian citizen formerly residing in Queensland for decades, with a wife and children in Australia and substantial ties to the jurisdiction, rather than someone who has fled to Australia; and (b) the content of international obligations is capable of constituting special circumstances, asserting by convoluted reasoning that Australia has no international obligation to surrender him because there is no binding extradition treaty, but rather, only a lesser scheme under a Commonwealth countries regime, which he detailed. 223 The first point takes Mr Pauga nowhere because that is not a distinction of any moment to the operation of the Extradition Act. Being or not being a fugitive is not a materially distinguishing feature for the purposes of that Act, and does not amount to such a difference as to amount to special circumstances. 224 As to the second point, it is not unusual for extradition to be sought by a country with whom Australia does not have an extradition treaty, for example, the United Kingdom and Croatia. There is nothing in the Extradition Act to suggest that any different test applies to such countries. It follows that this too does not amount to special circumstances. 225 The remainder of the arguments Mr Pauga advanced related to such things as the duration of his detention, none of which are capable of amounting to special circumstances. We were not satisfied that these, or any of the other features of this case relied upon by Mr Pauga, constituted special circumstances. That included his health, for which the evidence does not rise to the level of special circumstances, especially as there is no current evidence in that regard. Even a serious health condition is generally unlikely to amount to special circumstances, although that cannot be determined in the abstract in any given case.

Flight risk 226 The balance of Mr Pauga's submissions addressed the real risk of flight independent of bail conditions, and rely upon an earlier passage in Cabal at [61] which addresses this second test for bail, being the absence of any real risk of flight. It is not necessary to determine this question, because the first hurdle of special circumstances has not been surmounted. It is not desirable to comment on flight risk on a hypothetical basis.

Conclusion 227 As Mr Pauga did not establish any special circumstances for the grant of bail, his application for bail had to be refused at that threshold. That conclusion is now fortified, post the refusal of bail, by the success of the cross-appeal, which reinstates the Warrant of Committal made by the primary magistrate under s 19(9), to await surrender or release at the fourth stage under s 22, the s 21 appeal having been dismissed. As already noted, the remand and detention is now authorised by the Warrant of Committal, not by the s 15(2) remand which has concluded. I certify that the preceding two hundred and twenty-seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wigney, Bromwich and Abraham.

Associate: Dated: 13 April 2023 SCHEDULE OF PARTIES SAD 151 of 2022 Respondents Fifth Respondent: ANTHONY GETT Sixth Respondent: ROSEMARY GILBERT Seventh Respondent: BELINDA MERRIN Eighth Respondent: SAMOA Ninth Respondent: ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Tenth Respondent: ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND Cross-Appellants Second Cross-Appellant: SAMOA