United Kingdom v Forsyth

REASONS FOR JUDGMENT Introduction 1 On 3 November 2002, Charles Alistair Forsyth was arrested on a provisional warrant issued under the Extradition Act 1988 (Cth) in respect of offences allegedly committed in the United Kingdom. A warrant for his arrest had issued in that country on 17 October 2002. Pending proceedings to determine his eligibility for extradition under s 19 of the Act Mr Forsyth applied for bail and was refused on the basis that there were no special circumstances justifying his release, as required by s 15 of the Act, and that he posed a real risk of flight. 2 In August 2003, however, the original warrant for his arrest was withdrawn in the United Kingdom, it is said, as the result of an administrative error. An interim declaration of the validity of the warrant has since been obtained in the High Court of Justice pending determination of a substantive application for the declaration of its validity. 3 Mr Forsyth renewed his application for bail before His Worship Mr Robert Black SM and was granted bail on 22 September 2003 upon the basis that there was now a special circumstance, namely the possibility that he was not an extraditable person under the Act. The United Kingdom seeks judicial review of that decision. 4 For the reasons which follow, I am of the opinion that the learned magistrate's decision to release Mr Forsyth on bail was flawed by jurisdictional error and that it should be quashed and the application reconsidered according to law. Factual History 5 Charles Alistair Forsyth is a citizen of the United Kingdom. His parents are Australian citizens who live at Boyup Brook in Western Australia. His brother also resides in Perth. Mr Forsyth arrived in Perth from the United Kingdom on 2 October 2002. His purpose in visiting Australia was said to be for business and to obtain urgent medical care and attention. It was also evidently his intention to apply for a type 457 Permanent Resident Visa. He had previously travelled to Perth on 9 May 2002 and remained here until 5 June 2002. 6 On 17 October 2002, while Mr Forsyth was in Perth a warrant was issued out of the Selby Magistrates Court in Yorkshire in the United Kingdom for his arrest on a number of charges. The charges are said to have related to: (a) fraudulent trading contrary to s 458 of the Companies Act 1985 (two counts); (b) breach of trade mark, contrary to s 92 of the Trade Marks Act 1998 (one count); (c) breach of copyright, contrary to s 107 of the Copyright Design and Patents Act 1988 (one count); (d) obtaining a pecuniary advantage, contrary to s 16(1) of the Theft Act 1968 (two counts); (e) furnishing false information, contrary to s 17(1)(b) of the Theft Act 1968 (three counts). On 25 October 2002, His Worship Mr Heaney SM, at Perth, issued a provisional warrant for Mr Forsyth's arrest pursuant to s 12(1) of the Extradition Act. 7 On 3 November 2002, Mr Forsyth was arrested at Boyup Brook by the Western Australian Police Service and was remanded in custody by the Bunbury Magistrates Court on 4 November 2002. At that time no application for bail was made. An application for bail was made by senior counsel on Mr Forsyth's behalf at the East Perth Court of Petty Sessions on 11 and 12 November 2002 before His Worship Mr Black SM. One of the circumstances relied upon in support of that application was Mr Forsyth's medical condition. The application was declined on the basis that the 'special circumstances' required by s 15 of the Extradition Act to be shown before bail could be granted, had not been made out. His Worship, in declining the application, referred to the decision of the High Court in United Mexican States v Cabal (2001) 183 ALR 645. 8 Circumstances which the learned magistrate considered and found not to be 'special circumstances' were: 1. That there was no evidence of flight from the United Kingdom. The learned magistrate held that the circumstances of Mr Forsyth's departure from the United Kingdom could be characterised as flight. 2. That it had not been established that any of the offences was an extraditable offence. 3. That there had been a serious delay in laying the charges which related to events in 1999. 4. That there would be delay in determining the question of Mr Forsyth's eligibility for extradition. 5. That Mr Forsyth was no danger to the community. 6. That Mr Forsyth's parents are Australian citizens living in Boyup Brook who are prepared to provide a substantial surety. 7. That Mr Forsyth entered Australia on his own passport and made no attempts to conceal his identity. 8. That there was a risk to Mr Forsyth's health if he were to be detained in custody. This referred, it appears, to a seriously depressive mental state. However appropriate treatment was said to be available if he were remanded in custody. His Worship held that neither individually nor collectively did these circumstances amount to special circumstances necessary to empower him to grant bail. In any event he found that there was a risk of flight which, in his opinion, was determinative. 9 The learned magistrate noted that Mr Forsyth had left the United Kingdom in circumstances in which he had agreed to be interviewed, he had failed to attend the interview and his solicitor had said his failure to attend was due to his hospitalisation. Despite this, he was able to leave, and did leave London within days of being hospitalised. His Worship referred to a French passport and driving licence in a false name found in Mr Forsyth's belongings with his photograph in them. He concluded that there was '… a real risk of flight' and that in the circumstances, even if there were special circumstances, it was not appropriate to grant bail. He remanded Mr Forsyth in custody to 12 December 2002. 10 Mr Forsyth remained in custody. Counsel renewed his bail application on 7 February 2003 on the basis that his medical condition had deteriorated. The renewed bail application was set down for 28 February 2003 and a hearing, under s 19 of the Extradition Act, for 3 and 4 April 2003. The bail application on 28 February was withdrawn. A further renewed bail application was made on 14 March 2003 but then discontinued. 11 On 24 March 2003, following a change of Mr Forsyth's solicitor, his s 19 hearing was relisted to 25 June 2003. The new solicitors ceased to act on 13 May 2003 and another legal representative was engaged. When the s 19 hearing came on on 25 June 2003 Mr Forsyth was by then not represented. He applied for the hearing date to be vacated and succeeded in that application. The matter was then set down again for 20 August 2003. Further applications to vacate that date were made on 11 July 2003 and 8 August 2003. They were refused. An application to this Court for an order to review the magistrate's decision to refuse to vacate the hearing dates was dismissed by Carr J on 19 August. 12 The s 19 hearing proceeded on 20 and 22 August 2003 and was adjourned part-heard. Mr Forsyth then informed the Perth Court of Petty Sessions that he proposed to consent to surrender under s 18 of the Act. The matter was listed for mention on 22 September 2003. 13 An extraordinary event occurred on 5 August 2003. On that date the warrant for his arrest was withdrawn by a decision of the Selby Magistrates Court made pursuant to s 125(1) of the Magistrates Court Act 1980. Solicitors, Zilkens & Co, acting for Mr Forsyth, wrote to the Commonwealth Director of Public Prosecutions on 22 September 2003 advising the DPP of the withdrawal. 14 Mr Forsyth applied to His Worship, Mr Black SM on 22 September for his release from custody and for discontinuance (sic) of the proceedings on the ground that he was no longer an 'extraditable person' for the purposes of s 6(a)(i) of the Extradition Act. The learned magistrate acceded to the United Kingdom request that it have an opportunity to obtain further information in relation to the arrest warrant. His Worship however decided at that point that the possibility that Mr Forsyth might not be an extraditable person under the Act, as there might not be a valid warrant for his arrest, constituted 'special circumstances' justifying his release on bail. He released Mr Forsyth on bail subject to: