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.