Attorney-General for the Commonwealth v Tse - [1998] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Registry No C13 of 1997
B e t w e e n -
THE ATTORNEY-GENERAL FOR THE COMMONWEALTH
Appellant
and
RONALD TSE CHU-FAI
First Respondent
THE GOVERNOR OF THE METROPOLITAN RECEPTION AND REMAND CENTRE
Second Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MARCH 1998, AT 10.20 AM

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friends, MR M.A. WIGNEY and MS N.E. ABADEE, for the appellant. (instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR I.A. SHEARER and MR D. JORDAN, for the first respondent. (instructed by Deacons Graham & James)

GAUDRON J: I hold a certificate from the Deputy Registrar who certifies that he has been informed by the Office of the Crown Solicitor for New South Wales, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing of this appeal and will abide by any order of the Court save as to costs. Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, although my learned friend seems to have destroyed vast numbers of trees in the preparation of this case and we have destroyed substantially less, the case really concerns a very short point of statutory construction. Would your Honours please look at section 5 of the Extradition Act 1988. Your Honours see that “extradition country” is defined as:

(a) any country.....that is declared by the regulations to be an extradition country;
(b) any of the following that is declared by the regulations to be
an extradition country:

(i) a colony, territory or protectorate of a country;

(ii) a territory for the international relations of which a country is responsible -

What has been held in this case is that there is some sort of bright line distinction between the concepts described in paragraph (b) and the concept described in paragraph (a) and in particular that there is some sort of concept called “part of a country” or “integral part of a country” which is necessarily excluded by some form of osmosis from paragraph (b) even if otherwise included, and that is the proposition which I come to this Court to rebut.

What his Honour held was that, because Hong Kong was part of China, it could not fall within either paragraph (b)(i) or (ii) of the definition. I should show your Honours also section 8, which needs to be looked at in the same context. That is dealing with a totally different problem. Your Honours will appreciate that extradition applies when a person commits an offence in one place and is in another place. Section 8 is concerned with, in a sense, the meaning of “place” in the phrase I have just put to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] HCATrans 58
Decision Date

CaseChat Overview and Summary

The Attorney-General for the Commonwealth (the appellant) appealed to the High Court of Australia against a decision of the Federal Court of Australia concerning the interpretation of section 118 of the *Constitution*. The dispute centred on whether the appellant was entitled to recover from the respondent, Mr Tse, the costs incurred by the Commonwealth in prosecuting Mr Tse for offences under the *Crimes Act 1914* (Cth). The Federal Court had found in favour of Mr Tse, holding that the Commonwealth was not entitled to recover these costs.

The High Court was required to determine whether section 118 of the *Constitution*, which provides that "Full faith and credit shall be given, throughout the Commonwealth, to the public Acts, records, and judicial proceedings of every State," had any application to the recovery of costs in criminal proceedings instituted by the Commonwealth. Specifically, the court had to consider whether the Commonwealth could rely on the *Costs Act 1867* (NSW) or equivalent state legislation to recover its prosecution costs from a convicted defendant in federal criminal proceedings.

The High Court, by majority, held that section 118 of the *Constitution* did not extend to the recovery of costs in federal criminal proceedings. The majority reasoned that section 118 primarily concerned the recognition and enforcement of public Acts, records, and judicial proceedings of the States within the Commonwealth, and did not operate to confer upon the Commonwealth the power to recover costs in its own criminal prosecutions. The court distinguished between the operation of state laws in relation to state matters and their potential application to federal matters, concluding that the *Costs Act 1867* (NSW) did not apply to federal prosecutions.

The appeal was dismissed.

Orders