Federal Court of Australia|1983-11-28|Before: Fox J

The applicant file and serve any variations sought to

those short minutes of order within eiaht (8) days after

District Registrar on application of any party after the

KEVIN WEBB Second Respondent

ee FRANK MACKENZIE Third Respondent

Applicant AND: CLYDE EVANS First Respondent KEVIN WEBB Second Respondent FRANK MACKENZIE Third Respondent ERIC QUARMBY Fourth Respondent

I am hearing together two separate applications under the Administrative Decisions Judicial Review) Act 1977 ("the Judicial Review Act"). The cases were dealt with together by the learned magistrate whose decision is the subject of the applications. He is Mr. Mackenzie, the third-named respondent, the other two respondents heing magistrates who dealt with the

matter at earlier stages. The two applicants are said to have

been associated in illegal drug activities in the United States

of America, and the evidence, which has to be kept distinct, nevertheless shows that for the most part their activities were

Requests were made by the United States of America pursuant to the Treaty on Extradition between it and Australia, which came into force on 8 May 1976 ("the Treaty"), for the extradition of the applicants to that country, to be dealt with on alarge number of drug charges. The charges were on an indictment found by a grand jury. It is sufficient for the moment to say that the charges relied upon were in relation to the importation of drugs, and possession of them with intent to distribute. The drugs were marihuana and/or hashish. The requests were made through diplomatic channels, in accordance with Art. XI(1) of the Treaty, and were accompanied by the documents referred to in that Article. Warrants for the

apprehension of the applicants (in the Extradition (Foreign

States) Act 1966 ("the Act") referred toas "fugitives") were issued by a magistrate pursuant to 5.16(1)(b) of the Act. The Attorney-General did not direct those warrants to be cancelled, as he could have done (see 5.16(5)), but did inform Mr. McKenzie that a request had been made (see s.15(1)(b)). In due course, being found in New South Wales, they were apprehended and brought before a magistrate in Sydney. The magistrate proceeded under the extradition legislation (see s.17 of the Act and Arts. VI, X& and XI(3) of the Treaty) and, after a hearing at which all parties were represented by counsel, ordered both of the present applicants to be commited to prison to await the warrant of the Attorney-General for their surrender. This was on 29 July of this year, and the applicants have been in prison since. I understand that habeas corpus applications were made in respect of the applicants, and that they have come before the Supreme Court of New South Wales, but have not to date been proceeded with (note secns. 18 and 19 of the Act). The application of Mr. Riley, umder s.5 of the Judicial Review Act, was filed on 5 August 1983, that of Mr. Butler under the same section on 11 August 1983. Although decisions made by other respondents at earlier stages are referred to in the applications, the only ones to which arguments have related are the decisions to commit to which I have referred. The same counsel appeared for all respondents. Amended applications were filed on the second-last day of the hearing before me, to support arguments already put. A number of grounds are relied upon, and I will deal with them in

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Something should first be said of the legislation and

the Treaty. The previous relevant legislation comprised the Imperial Extradition Acts 1870 to 1935, but the operation of these has been excluded by s.6(1)(a) of the present Act, with a

saving in respect of the operation of the Fugitive Offenders Act 1881.

A "fugitive" is defined in s.4(1) to mean "a person accused of an extradition crime that is alleged to have heen

"Extradition crime" is dealt with in s.4(1A), which was

"(1A) An offence against the law of, or of a part of, a foreign state is an extradition crime for the purposes of this Act if, amd only if, the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or omissions, any of those acts or omissions or any equivalent act or omission, would, 1f it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia that -

(Bb) would be so described if the description concerned contained a reference to any intent or - state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence."

"LO. (1) Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state

(a) if this Act applies in relation to the foreign state at the time of coming into force of that treaty - the regulations May provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations; or"

This paragraph is 'appliéable to the situation vis a vis the United States. The Extradition (United States of America) Requlations came into effect on 27 August 1976. Requiation 3(3)

(3) The Act applies in relation to the United States of America subject also -

(b) to the condition that any other limitations, conditions, exceptions or qualifications to which the application of the Act is subject by reason of sub-section 9(2) of the Act cease to have effect,

after the time of coming into force of the Treaty."

The Treaty is set out in the Schedule to the Requlations.

It "is not necessary to consider the limitations and

conditions referred to in s.9(2) of the Act; they were those to

which the operation of the Orders in Council under the old Acts were subject, and which were continued by that suh-section. The relevantly operative part of the Regulations 1s that the Act is to apply "subject to the Treaty". | The justification relied upon for this apparent fracture of established constitutional principle is, seemingly, in s.10(1)(a) of the Act. This refers ta "such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect" to the Treaty. There seems to me to be some slight of hand when one turns to the words of the sub-regulation, but I would read "subject to" in the sense of the language used in the Act. A provision in somewhat similar language to that used in the Act is not uncommon in extradition legislation (s.5 of the Extradition Act 1870; see Beese v. Governor of Ackford Remand Centre and Federal German Republic C19731 1 W.L.R. 1426, at p.1428; R. v. Governor of Pentonville Prison Ex Parte Dowse C19833 2 W.L.R. 791, at p.795; and note Grace Brothers Proprietary Limited v. The Commonwealth (1946) 72 C.L.R. 269). The effect of the Regulation is of course not to enact the Treaty, but to impose qualifications on the operation of the Act. A qualification may arise from a positive provision in the Treaty which impliedly overrides a provision of the Act, in which event the intention must be that the positive provision becomes operative. The Act is a general one, which prescribes some matters but leaves to the Regulations their application to

particular Treaties, as they are entered santo. There are

nevertheless bound to be difficulties in subiecting (in the sense

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mentioned) a municipal law to the terms of a bilateral

The question whether a person should be extradited is not left to a magistrate. It is gegarded as affecting sovereign rights and privileges, and the decision is in our country left to the Attorney-General. The request for extradition comes formally, through diplomatic channels, and is to he accompanied hy certain documents (see Art. XI(1) and (2) of the Treaty). Commonly, it will rest: with the ~attorney-General, on receipt of the request, to decide whether a warrant for the apprehension of the person should issue, and to authorise its issue by a Magistrate (s.15 of the Act). The issue of the warrant requiring the person to be surrendered to the foreign state (s.18(2)) is a matter for the Attorney-General. He is required to consider

the matters mentioned in s.14, and to act accordingly, and has,

The role of the magistrate when a person has been apprehended and brought hefore him, is dealt with in s.17(6) of

"(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General ina notice under paragraph (a) of sub-section (1) of section 15 or tne Magistrate receives a notice by the Attorney-General under Paragraph (b) of that sub-section and -

(a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made

(2) in the case of a person who is accused of an extradition crime - such evidence as would, in the opinion of the Magistrate, accerding to the law in force in the State or TerrYtéry" of which he is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory; or

(ii) im the case of a person who is alleged to have heen convicted of an extradition crime - sufficient avidence to satisfy

(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is Jliable to he surrendered to the

foreign state that made the requisition for the surrender,

the Magistrate shall, by warrant in accordance with Form 5 in Schedule 2, commit the person to prison to await the warrant of the Attorney-General for his

surrender but otherwise shall order that the person be released."

In the Treaty the test of the sufficiency of evidence is expressed as being such as would "justify his trial or committal

for trial" (Arts. VI and XI(3)). Art. X1I(5) describes the

proceedings as "the examination of the request for extradition".

It is agreed between the parties, in my view correctly, 'that the Magistrate's role is an administrative one. He is part of the administrative machinery whereby a decision is made, and,

if appropriate, action 4s taken for the extradition of the

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"fuditive". It ius not disputed that his decision to issue a

warrant of committal in this case was a "decision of an administrative character made under an enactment" within the meaning of the Judicial Review Act.

The task of this Court is to determine whether there was an error of law in respect of the proceedings before the

Magistrate of the nature referred to ins.5 of the Judicial Review Act. Counsel for the applicants have adopted each other's arguments, so far a8 relevant to their respective cases.

Particular matters relied upon, expressed in my own words, are as

That the magistrate erred in not following the procedure, mutatis mutandis of the Justices Act

That there was a denial of natural justice in that the magistrate admitted all the evidence tendered

by the Commonwealth, subject to the objections made

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at the time by counsel for the present applicants, but did not state his decision thereon before counsel addressed, or did not, alternatively, give counsel an opportunity to address after he had reserved his decision and before making the orders

A starting point is to determine whether the crimes alleged, or one or more of them, constitute extraditable crimes. The Act and the Treaty have lists of crimes for which extradition may be granted, and they differ ina number of respects. Both the Treaty (im Art. VI) and the Act (in s5.4(1A)) provide for offences (or "acts or omissions") which in the requested State are "equivalent". Section 4(1A), after referring to acts or omissions constituting the offence charged, refers to equivalent acts or omissions, while Art. VI refers to the offence charged or its equivalent. Art. II of the Treaty commences (in para. (1))

"(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties

by a term of imprisonment exceeding one year or by death:" --

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Item 28 in this paragraph refers to an offence "against the laws relating ta narcotics, dangerous drugs or psychotropic

substances". In counts land 2 charged by the United States,

marihuana and hashish are referred to as "non-narcotic controlled substances" (see Title 21, s5.802(6), (15) and (16) of the United States Code). In each of the other counts the drug in question is referred to as a "controlled substance". The nomenclature may

be one of convenient statutory classification rather than

pharmacological definition: TA'the papers accompanying the erequest for extradition there are several references to the

effences charges being "narcotic offences". An entry in 28

Corpus Juris Secundum - Drugs and Narcotics Supplement 5.3, at pp.1LO-1ll under the heading "marijuana" helps to explain the

"The word 'marijuana' is of Mexican origin, and is variously spelled as 'mariguana', 'marijuana, ' 'marihuana.' Marijuana is not a scientific term; it is the Mexican name for 'cannabis sativa,' which is more commonly known as 'Indian hemp.' It is defined to mean a habit-forming substance used by addicts in the form ef cigarettes; the narcotic product of the plant cannabis sativa; and while marijuana is not technically @ marcotic, it is treated for all purposes just like an opiate, and usually it comes within such statutory terms as 'narcotics' or 'narcotic drugs,' but not if it is expressly excluded therefrom, and where it is not classified as a narcotic or narcotic drug 1t may be classified as a dangerous drug, and marijuana may be classified as an injurious substance."

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"It is within the power of Congress or a state to classify marijuana as @ narcotic drug, or as a controlled substance, and to oroscribe its possession

I was referred to Blakiston's New Gould Medical Dictionary (2nd

ed. (1956) at p.778) which includes marihuana and hashish under

the definition of narcotic drugs. It is noteworthy, however, that the Jrd ed. (1972) of what appears to be the successor to this. work, does not include those substances within the definition of narcotic (see at p.1008). There was no expert evidence before the 'magistrate"Which would help him make a finding on the question whether the subject drugs are narcotics, or even on the question whether the term has a precise scientific meaning. It can be argued that the reference in item 28 of the Schedule to the Treaty is to laws which relate to substances which are in fact narcotics, as distinct from laws which deal with what the laws in terms classify or designate as narcotics. It seems unnecessary for me to resolve this question, so far as the Treaty is concerned. In the present case the drugs are not included in the definition of narcotics in the United States Code, and I think [I should not proceed in reliance on the "narcotics" part of item 28. Although reference was made by counsel for the Commonwealth to the possibility of the drugs being "dangerous drugs", there was no precise material before the Magistrate which would assist him to such a conclusion, and he

It is therefore necessary to look beyond para. (1) of

"(2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australig, and which are felonies under the laws of the United States of America."

In applying this paragraph, it is necessary to have regard to

"(5) Tf extradition is E@quested for any offence mentioned in a preceding paragraph of this Article and that offence is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offence shall he extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offence within the same category of

offences made extraditable by that preceding paragraph of this Article and whether or not the laws of the

requested State denominate the offence by the same terminology. "

Article I1I(2) requires reference to the terms of the Act. I have set out s.4(1A), which deals with extradition crimes

and relates to Schedule 1. Item 34 of that Schedule reads:

"34. An offence against the law relating to dangerous drugs, narcotics or psychotropic substances."

The question posed is whether the act "constituting the offence" (or its "equivalent") would, if it had taken place in

New South Wales, constitute an offence against a law in force in

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that State which is described in Schedule 1. There is first a question as to the nature of the drugs. I have been referred by counsel for the Commonwealth to s.233B of the Customs Act 1901, sub-s. (1) of which creates a rather comprehensive series of affences relating to "prohibited jmports". Sub-section (2) says that for the purpose of 5.2338, "prohibited imports" are "narcotic goods". The section was amended in 1974 and 1979 but not in a way affecting the present proceedings. In s.4(1) of the Customs Act "narcotic goods" are defined as meaning "goods that consist of a narcotic substance". In the same sub-section "narcotic substance" is defined to mean "a substance or thing the name of which is specified in column 1 of Schedule VI or any

other substance or thing for the time being declared ...

Schedule VI, in the first column refers to cannabis, cannabis resin, and tetrahydrocannabinols. It is agreed (and is

the evidence) that hashish is the same as cannabis resin, that Marihuana is cannabis, and that tetrahydrocannabinols is the active ingredient of cannabis. The present Schedule VI was introduced by Act No. 154 of 1977, which came into force on 10 November 1977. The previous Schedule VI, introduced by Act No. 134 of 1971, listed cannabis and cannabis resin, but not tetrahydrocannabinols. "Cannabis", "cannabis fibre", "cannabis plant" and "cannabis resin" were defined in s.4(1) as they now are. The definition of "narcotic goods" and "narcotic substance" were the same as they now are. By s.233B(1) of the Customs Act

the importation of a prohibited import, possession of a

prohibited import, and possession of a prohibited import reasonably suspected of having been imported in contravention of the Act are offences and are by 5.235 punishable by not less than one year's imprisonment. we

The offences charged include possession with intent to distribute the drugs. I doubt whether any of the offences under the Customs Act can be regarded as an equivalent to that offence. The learned magistrate turned to the Poisons Act 1966 (N.S.W.). Section 21(1)(a) of that Act makes possession for supply an offence (see definition of "supply" in s.4), and plainly includes the drugs now in question. The Act does not, however, refer to

the drugs as being narcotic. There is no evidence which says

that those drugs are, or are generally understood to be narcotic.

A question can be asked whether, when item 34 is using descriptive words, the reference is to drugs which, according to general or scientific meaning, satisfy the description, or on the other hand, to drugs designated in the legislation as drugs of that description, or whether it is sufficient if one or other of these tests is satisfied. This is not an easy question to answer, and I do not know that it should receive the same answer in relation to each item. When dealing with the Customs Act, there is a statutory definition which, so far as appears, is not an artificial one. When considering the application of the Poisons Act, there is no statutory definition which uses the

descriptive term "narcotic". I think, however, that the

magistrate, considering the matter in an administrative capacity,

is entitled to take account both of the medical dictionary definition and of the Customs Act definition. He is also

entitled to consider the terms of the Narcotic Drugs Act 1967 and the international Convention on Narcotic Drugs 1961, which 1s the

I am of the view that possession for supply (s.21(1)(a))

is an equivalent to the offence charged under the U.S.A. law of

possession with intent to distribute. It matters not, in relation to this situation, whether one compares acts or OMissions (vide s.4(1A)) or "offences" (vide Arts. II, VI).

There has not been any argument that "possession" is a state, as compared, in ordinary usage, with "act" or "omission" (cf. Beckwith v. The Queen (1976) 135 C.L.R. 569, at p.575). Nor has there been argument as to the application, as an equivalent, of

It follows in my view that the specific charges I have been considering are extraditable offences under the laws of Australia. Returning to Art. II(2), the evidence is that all the offences charged are felonies in the United States. They are also punishable by not less than one year's imprisonment. The matters charged therefore constitute extraditable offences under

There are three other offences charged against each

applicant, two of conspiracy, and the third an offence described

as "continuing criminal enterprise". I shall deal later

So far as ground (2) is cepcerned, it was said that, although the magistrate decided that there was a prima facie case (in relation to each count) he did not apply the test for which the legislation and Treaty provide. I have already set out

s.17(6)(b) (i). Article VI and Art. XI(3), to which I have

"Extradition shall he granted only if the evidence is found sufficient.: according to the laws ain the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted hy the courts of the requesting State."

"(3) When the request relates toa person who has not yet been convicted, it must also be accompanied by

a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would

justify his trial or committal for trial if the offence had been committed thers, including evidence proving

the person requested ts-.the person to whom the warrant of arrest refers."

While s.17 of the Act says simply that the evidence is

to be such as to "justify his trial", the phrase in the Treaty (twice used) is "justifying his trial or committal for trial". The terms used would include summary trial, or trial on indictment, both of which, as it seems to me, are covered by the scheme. No reference is made anywhere to "prima facie case". It is, however, a phrase in common use, not least of all in relation to extradition matters where the relevant legislation (e.g. the Extradition Act 1870) uses the same language as the Treaty and

Act now before me. For example, Lord Wilberforce used the phrase

in this context in Government of _Australia v. Harrod [1975] 1 W.DL.R. 745, at p.748. In Beese (supra.), Lord Diplock treated the words "found sufficient to justify committal" as equivalent to "a prima facie case of guilt" (see at p.1429). In R. v. Governor of Brixton Prison ex parte Armah (1968) A.C. 192, which was a case under the Fugitive Offenders Act 1981, Lord Reid said, at 9.229, what must with respect be abundantly clear, namely that the phrase "prima facie" "is not self-explanatory: what is it that the case shows prima facie or at first sight?". In R. v. Governor of Brixton Prison Ex Parte Schtraks C1964] A.C. 556, the test posed by the legislation was expressed by Lord Reid (p.580)

",.. the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial. a reasonable jury properly directed could accept it and find a verdict of quilty."

The magistrate neard extensive argument concerning the

Act and Treaty, and their application, without any diminution or qualification of the prescribed test being suggested, and it seems to me that I should not assume that in reaching his decision he failed to apply that test. On the contrary, it seems to me from a reading of his decision that he was conscious of the

As to ground (3), the matter was put to me by respective counsel for the applicants on the basis that what a magistrate is required to do, in a case such as the present, is to follow the

procedure of s.41 of the Justices Act 1902 (N.S.W.) and

particularly sub-s. (6) thereof. While proceedings under the Act or Treaty are no doubt similar in some respects to those of committal proceedings, there is, in my view, no such requirement. [Tt is to be noted that s.17(6)(b)(i) says "justify the trial", without reference to committal. It is not to be assumed that the added reference in the Treaty to "committal for trial" is intended to invoke the provisions of the Justices Act. Both Phrases are dealing with the measure of proof, and not with procedure. The magistrate does not of course commit for trial, and. there can be na trial of the offence which he considers. No

It is of interest, and, I think of some significance in relation to the arguments submitted, that s.9 of the Extradition

Act 1870 has been omitted in the Australian Act. It reads as

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"9, When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.

The police magistrate shall receive any evidence which may be tendered to show that the crime of which

the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

The question whether the offence charged is of a political character is now, in this country, one for the

Im relation to ground (4), it seems to me that there was not a denial of natural:justice. Submissions were made at length before the magistrate concerning the admissibility before him of certain passages in the documents, and objections were taken on Many occasions. When it came to final addresses, counsel representing the applicants dealt with the effect of the evidence, allowing for the submissions made as to its admissibility. They were invited to out submissions in reply. No objection was taken at any time to the magistrate considering at the one time the evidence as tendered, its admissibility, and its effect. .The course he followed is a not uncommon one. The Magistrate in his final reasons dealt separately witn objections based on hearsay, relevance, opinion evidence and the use of

marrative form. He excluded what he understood to be hearsay

In relation to ground (5) of the grounds I have set out, a major submission made on behalf of the applicants was that parts of the transmitted material, although duly authenticated, should not be accepted as evidence upon which the magistrate

could base his conclusion, because they did not satisfy the rules

of evidence applicahle to court proceedings in New South Wales.

(a) a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is

"(5) The warrant of arrest and deposition of other evidence, given under oath or affirmed, and the judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when -

(b) ain the case of a request by the United States of America - the warrant, if any, bears an original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or ef the Department of Justice on behalf of the Attorney-General."

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It is difficult to see how a document is admissible as evidence of the matters stated therein (s.26(1)(a)), or 1s to be admitted in evidence (Art. XI(5)), if a part or parts of it are at the same time not open to be considered. Put another way, there seems no justification for qualifying or limiting the ordinary meaning of "admissible". A particular statute may of course show that "admissible" is to be read in a qualified sense, but in my view there is not in the present Act, or Treaty, any such provision, or context. R. v. Governor of Pentonville Prison

Ex Parte Kirby [19791 1,W.L,R. 541 was a case under the Fugitive

Offenders Act 1967 (Eng.), which contains a number of provisions

quite dissimilar from those presently under consideration. Authenticated documents are under s.1l of that Act to be "admissible in evidence of the matters stated therein". Croom-Johnson J., with whom Lord Widgery C.J. and May J. agreed, said of the section (at p.544): "This section is dealing with procedure and method but not with admissibility". The compulsion to reach this conclusion apparently flowed from the fact that the proceedings were to he before a court, so described, which was to be constituted by a magistrate, and that proceedings were in general required to take place as they would before such a tribunal. Even so, what was said, and decided, seems inconsistent with the views expressed by Lord Diplock (with whom the other Law Lords agreed) in Fernandez v. Government of Singapore £19713 1 W.L.R. 987, at p.992. That the words in the

Extradition Act 1870, which our Act follows on this point, are to

be given their ordinary meaning, as meaning admissible in

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evidence, to the point where they may without more be acted on, is apparent from what was said by Lord Diplock in his leading judgment in Dowse v. Governor of Pentonville Prison Ex Parte Passingham £19837 2 W.L.R. 791, at 9.796. eee | A further or alternative aspect of the argument on this ground involves the submission that the documents made admissible by 5.26 are to be admitted subject to the application of the rules of evidence applicable to curial proceedings. This is doubtless a result which could he brought about by clear enactment, but there is no provision, or context, which has this result. It would not he sufficient to provide in the Act that the rules of evidence applied, umless there were added the hypothesis "as if the magistrate were sitting as a court of law". In the absence of a clear provision to this effect, it would not

be at all certain if, or how, statutes dealing with evidence, or

The fundamental difficulty with the submission is that the magistrate hears and deals with the application before him in an administrative capacity. He is appointed, by name, as a person to exercise power under the Act (see s.24(1)). There is no reference to his comstituting a court, nor is his decision subject to appeal as if he were. The reference to "evidence" is quite neutral. It is commonly used in relation to material to be presented toa tribunal; see, for example, the Administrative

Appeals Tribunal Act 1975, and, indeed, the Judicial Review Act

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itself. The fact that a decision has to be reached on the question whether there is evidence which would justify trial, in this case in New South Wales, does not involve a conclusion that in reaching the decision, the tribunal has to apply rules of evidence as if it were sitting as ,a_ court to decide the matter. The fact is, of course, that decisions of that nature have commonly to be reached by Attorneys-General or by administrative officers, on the basis of the material they have. The circumstance that in some respects the tribunal has to act judicially (ags_in the observance of the rules of natural justice) does not alter the position. It has many times been held that hearsay can be admitted by tribunals in those circumstances (Wilson v. Esquimalt and Nanaimo Railway Co. (C19223 1A.C. 202, at pp.212-213, and other cases cited by Professor Campbell,

"Principles of Evidence and Administrative Tribunals", Well and

Truly Tried, ed. Campbell and Waller (1982) at p.50, n.50).

Professor Wigmore deals at length with the topic of the application of the rules of evidence to administrative tribunals in secns. 4a to 4n of Chapter I of his work (see 3rd ed. (1940) ato pp.25 et seq.). He refers to the rules as the "jury-trial rules", it being his view that they owe their origin to trial by jury. This view has been challenged, but it is not material to pursue the matter. At p.24 of the work cited (s.4) he deals

"Extradition. For the same reasons of principle, extradition proceedings are not governed in strictness

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by the jury-trial rules of Evidence. Moreover, here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is thus likely to be hampered by the lack of power or practicability, as well as by the possible differences of law in another system."

At p.31 (s.4b), after quoting Maine at length, the learned author

"These sagacious observations of Sir Henry Maine may serve to warn us that any attempt to apply strictly the jury-trial rules of Evidence to an administrative

tribunal acting without a jury is an historical anomaly, predestined té probable futility and failure."

These words have been cited with approval by Schwartz, Administrative Law (1976) at pp.334-335. To complete citation of American works, I refer to American Jurisprudence 2nd ed., vol. 31, s.58 (p.964), in a chapter dealing with Extradition, under

"Strict rules of evidence are not applicable in international extradition proceedings. To be admissible on the issues involved in such proceedings, evidence need not meet the requirements generally observed in criminal, ar in civil, trials. Accordingly, evidence which is ordinarily excluded under the hearsay rule may be admitted in extradition hearings."

In the 1982 supplement to this volume reference is made (at p.162) to the recent case of Escobedo v. United States (1980) 623 F 2d. 1098 where the Fifth Circuit Court of Appeals strongly

confirms this position (at p.1103). In 31 Am. Jur. s.59 (p.965)

= Pa . , . rnc ns ae nsatilaer rel ta Naitaadlinced te i Oi Genin RfARits fs Nate nae ake ee Aa ae SEP RA Ne rt te te et ena etme H+ er honetinemiaml emi amrtatinn tens Art

under the sub-heading of "Sufficiency", the further observations

"The statute regulating international extradition procedure provides that an alleged fugitive may be surrendered om requisition of a foreign government where the evidence is deemed sufficient by the examining magistrate to sustain the charge in the complaint. But it is not the function of the presiding judge or magistrate to determine whether the accused is guilty of the crime charged beyond a reasonable doubt; probable cause of guilt is all that need be established. Accordingly, statutory requirements are held to be satisfied if evidence is presented that would justify the apprehension and detention of the accused for trial.had the crime been committed in the asylum ~ State. Indeed, godd'faith to the demanding government is said to require the surrender of the accused if there are presented such reasonable grounds for supposition of guilt as to make it proper that the alleged fugitive be tried".

There is English authority on the matter. In re Counhaye C18737 L.R. 8 Q.B. 410, a case under the Extradition Act

of 1870, Blackburn J. said, in relation to one submission

"We are, I believe, also all agreed that 5.14 makes depositions properly authenticated evidence in proceedings under the Act, whether they are in the particular charge or not, and whether taken in the presence of the person charged or not. In most European states, I believe, it is not the practice to take the depositions in the presence of the accused; at all events, the law is indifferent in the matter. I would add that it is for the maqistrate to qive what weight he thinks proper to depositions so taken."

In R. v. Zossenheim (1920) T.L.R. 121, it was decided in England

by a Divisional Court that the rules of evidence did not apply to

the admissibility of what is set out in the transmitted documents. Halsbury's Laws of England 4th ed., vol. 18, p.93, n.7, after referring to authenticated depositions or statements taker in a foreign State, says: "These depositions ought to be most strictly scrutinised, but the magistrate is under no duty to determine whether they were taken in accordance with English rules of evidence";, and R. v. Zossenheim (supra.); and R. v. Bitterlin (1913) 48 LU.do. 371 are cited. Section 9 of the

Extradition Act, which I have already set out (cf. s.7 of the

Fugitive Offenders Act 1967 (Eng.)), was not regarded as

affecting this result. The principle of R v. Zossenheim (supra. ) was relied upon by the New South Wales Court of Appeal in Ex

Parte Bennett; re Cumningham (1966) 68 S.R.(N.S.W.) 15 in

relation to some aspects of the evidence in an extradition case.

In the present case, there was no submission that the documents transmitted were not duly authenticated. The material documents were verified by oath. In these circumstances, it seems to me, it was the duty of the magistrate to receive them and to give their contents such weight as in the circumstances he saw fit. The magistrate did, however, apply or intend to apply, the rules of evidence. In his reasons for decision, he said that he had rejected the evidence which was inadmissible before a court as hearsay and the evidence which he thought was irrelevant. Rejection had been sought before him, as it has before me, of many passages expressed in indirect speech. The

acceptability of evidence in this form is, however, a matter of

discretion; there is no rule excluding it. Criticism was made of Many passages in which conclusions were expressed, without the qualifications of the deponent being apparent, but the admissibility of such passages, or the weight to be given to them, depends very much on an examination of the evidence as a

Counsel for the Commonwealth, as well as submitting that the rules of evidence did not apply, argued, in the alternative, for the acceptance of the findings of the magistrate on the basis of the application of those rules, as appropriate to a court. Having in mind that'all activities alleged were in some measure joint and carried out with preconcert, he relied heavily on the rules making admissible against another or others the statements of one (Tripodi v. The Queen (1961) 104 C.L.R. 1). Reliance was placed upon the inferences to be drawn from repetitive acts, and Martin v. Osborne (1936) 55 C.L.R. 367 was rererred to. The res gestae rule was also relied upon in relation to a number of activities. I doubt whether my conclusions would be very different if I sought to apply rules of evidence, but TI have

proceeded on the basis already discussed, representing as it does

It has occurred to me that I should remit the whole

matter to the magistrate, so that his conclusions could he

yeached on the basis of the slightly wider range of evidence my

ruling makes admissible. However, the volume of additional

Material is not great, it does not favour the applicants, and some evaluation of evidence by a reviewing court is always necessary when the present ground of sufficiency is being considered. It therefore would seem futile, if not incorrect, to

re-submit the matter to the magistyste for the purpose mentioned.

It was of course necessary for the evidentiary material to be examined closely by the magistrate, and for common sense notions of soundness and reliability to be applied. In this regard, some of the rules can be applied by analogy and some of the statutory provisions permitting admissibility -in curial proceedings can also be borne in mind. Some of the material expressing what others, not being deponents, are said to have said, is plainly not to be given any weight, and is excluded by me as evidence the magistrate could rely on. Similarly, some of

the conclusions expressed, which do not appear to he adequately

Ground (5) of the grounds of appeal, as I have stated it, attacks the sufficiency of evidence, and requires

I should make some preliminary observations. It is not necessary that the request be accompanied by charges, formally prepared, but that has been done in the present case. Provided

the substance of each count can be understood, there is no

Riley, Robert Leslie v Evans, Clyde & Ors [1983] FCA 350

At a glance

Court

Decision date

Before

Source

Judgment (543 paragraphs)

warrant of committal in this case was a "decision of an administrative character made under an enactment" within the meaning of the Judicial Review Act.

Legislation Cited (2)