Birch, Clive Burris v Commonwealth of Australia
[1997] FCA 1317
•18 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
EXTRADITION - procedures for extradition from United Kingdom - warrants grounding requirement - whether issuing authority to be a Stipendiary Magistrate - alleged procedural error by foreign government in surrender of applicant - claims for unlawful imprisonment - no basis for claim against Commonwealth Government.
Extradition Act 1989 (UK)
Extradition Act 1988 (Cth) s 40, s 43
Justices Act
CLIVE BURRIS BIRCH v COMMONWEALTH OF AUSTRALIA
WAG 91 OF 1997
FRENCH J
PERTH
18 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 91 of 1997
BETWEEN:
CLIVE BURRIS BIRCH
APPLICANT
AND:
COMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
18 NOVEMBER 1997
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The application is dismissed.
The Applicant to pay the Respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 91 of 1997
BETWEEN:
CLIVE BURRIS BIRCH
APPLICANT
AND:
COMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
FRENCH J
DATE:
18 NOVEMBER 1997
PLACE:
PERTH
EX TEMPORE REASONS FOR JUDGMENT
This is a motion to strike out a proceeding brought by Clive Burris Birch against the Commonwealth in relation to his extradition from the United Kingdom to Australia in November 1990. The extradition was based upon allegations that Mr Birch, while trading as a real estate agent in Western Australia prior to his departure for the United Kingdom in August 1987, had stolen money belonging to various people and amounting in total to over $460,000. Following his extradition to Western Australia, Mr Birch was convicted of the offences in 1992 and sentenced to ten years imprisonment.
Mr Birch’s application is based upon alleged defects in the process leading up to his extradition from the United Kingdom. He asserts breach of statutory duty on the part of the Commonwealth and its agents for failure to comply with the Extradition Act 1989 (UK). It is alleged in the application that he was unlawfully removed from the United Kingdom by the Commonwealth and/or its agents. As a consequence he says that he was unlawfully imprisoned. He claims damages.
Mr Birch’s complaints, as they emerge from his written submissions and oral argument today, involve three contentions:
The warrants issued in Western Australia and grounding the request for his extradition were issued by a Justice of the Peace and not an appropriately qualified judicial officer who, in his contention, should at least be a stipendiary magistrate.
There was no certainty that the warrants grounding the request were referrable to the statutory examination carried out under s 43 of the Extradition Act 1988 (Cth).
He was not served with copies of warrants grounding the request when apprehended in the United Kingdom and that this was contrary to the Extradition Act 1989 (UK).
It is necessary to refer briefly to the statutory framework under which the extradition proceedings were taken. Section 40 of the Extradition Act 1988 (Cth) provides that:
“40. A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General.”
And s 43:
“43. (1) Where the Attorney-General suspects that a person is an extraditable person in relation to Australia (whether or not the Attorney-General knows or suspects the person to be in a particular country or has made a request under section 40 or otherwise in relation to the person), the Attorney-General may, by notice in writing in the statutory form, authorise the taking of evidence for use in any proceedings for the surrender of the person to Australia.
(2) Where the Attorney-General authorises the taking of evidence under subsection (1), a magistrate may take the evidence on oath or affirmation of each witness appearing before the magistrate to give evidence in relation to the matter and the magistrate shall:
(a)cause the evidence to be reduced in writing and attach a certificate, in the statutory form, in relation to the taking of the evidence; and
(b)cause the writing and the certificate to be sent to the Attorney-General.
(3) At a proceeding in relation to a person before a magistrate under this section, a legal or other representative of the person is not entitled to appear.”
The meaning of “extraditable person” is set out in s 6, the relevant part of which provides:
“6. Where:
(a) either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
.
.
.
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.”
Warrants may be issued under the Justices Act 1902 (WA). Section 58 of the Act provides:
“58 When complaint is made before a justice-
(1)that a person is suspected of having committed an indictable offence within the limits of the jurisdiction of such justice; or
(2)that a person charged with having committed any such offence elsewhere in Western Australia is suspected of being within such limits;
.
.
.
the justice may issue his warrant to apprehend such person, and to cause him to be brought before justices in any jurisdiction to answer the complaint, and to be further dealt with according to law.”
The word “justices” is defined in s 4 of the Act to mean:
“(a)Justices of the Peace having jurisdiction where the act in question is, or is to be, performed;
(b)A magistrate acting under section 33;
(c)one justice where one justice may exercise the jurisdiction of justices referred to in paragraph (a).”
The Extradition Act 1989 (UK) in s 7 provides that:
“(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with under this Part of this Act except in pursuance of an order of the Secretary of State (in this Act referred to as an “authority to proceed”) issued in pursuance of a request (in this Act referred to as an “extradition request”) for the surrender of a person under this Act made:
(a)by some person recognised by the Secretary of State as diplomatic or consular representative of a foreign State; or
(b)by or on behalf of the Government of a designated Commonwealth country or the Governor of a colony.
(2) There shall be furnished with any such request:
(a)particulars of the person whose return is requested;
(b)particulars of the offence of which he is accused or was convicted (including evidence sufficient to justify the issue of a warrant for his arrest under this Act);
(c)in the case of a person accused of an offence a warrant for his arrest issued in a foreign state, Commonwealth country or colony; and
(d)in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence,
and copies of them shall be served on the person whose return is requested before he is brought before the court of committal.”
The factual background in this case is set out in a chronology supplied by the respondents, which refers to affidavit evidence supporting this application. In brief, it is that on 19 January 1989, twelve warrants for the arrest of the applicant on theft charges were issued under the Justices Act. On 20 February, the Attorney-General for Western Australia requested the Commonwealth Attorney-General to issue a notice pursuant to s 43 of the Extradition Act 1988 (Cth). The request was by way of a letter from the Honourable Joe Berinson, MLC, then Attorney-General for the State of Western Australia, to the Honourable Lionel Bowen, MP, then Attorney-General for the Commonwealth, and stating, inter alia:
“On 19 January 1989, after an extensive police investigation, a complaint was sworn against Birch containing 12 counts of stealing contrary to sections 378 and 586(1)(a) of the Criminal Code of Western Australia. As a result of those 12 charges, 12 warrants for the arrest of Burris Clive Birch were issued on 19 January 1989 at Perth. Those warrants remain in force until executed.”
Copies of documents were enclosed with the letter for the information of the Commonwealth Attorney-General. They comprised the complaint, the warrants for the arrest of Mr Birch and a summary of the case. The Commonwealth Attorney-General signed a notice on 14 March 1989 under subs 43(1) authorising the taking of evidence in Australia for the purposes of grounding the extradition request.
Evidence was taken for that purpose between 13 and 19 April 1989 and on 6 August 1990 the Commonwealth Attorney-General signed a valid extradition request. There had been three earlier attempts to sign extradition requests which apparently had technical deficiencies.
On 8 November 1990, Mr Birch was arrested by police in the United Kingdom and placed in custody. On 26 February 1991, following an extradition hearing before a magistrate in the United Kingdom, the extradition request was granted. An application for habeas corpus was rejected by the High Court in the United Kingdom on 27 June and a surrender warrant was signed on or about 1 July 1991. Mr Birch was returned to Australia on 19 August 1991 and went to trial on the stealing charges in 1992. He was convicted and sentenced to ten years imprisonment.
In Mr Birch’s outline of submissions, he asserts that the warrants issued by Mr Ur, the Justice of the Peace, were only valid for service and execution within Western Australia and were invalid for service outside Australia. The stipendiary magistrate in taking evidence under s 43 of the Extradition Act 1988 (Cth) did not include the Western Australian police investigating officer’s statement and/or the warrants issued by Mr Ur in 1989.
Mr Birch says the respondent did not produce any warrants issued by the stipendiary magistrate and that the evidence now shows that the examining magistrate did not issue warrants against him.
“What checks”, he asked, rhetorically, “...were made that the warrants of January 1989 were in fact related to the evidence being collected in April 1989?”
He says they could have been two completely separate matters. As to that, which is the second of the matters which I have already identified as being among his complaints about the process, it is clear from the letter sent by the State Attorney-General to the Commonwealth Attorney-General that the examination which proceeded under s 43 was in fact instigated by the issue of the warrants and the subsequent request from the State Attorney-General to the Commonwealth Attorney-General. There is no substance in the point.
Mr Birch asserts also that under the Extradition Act 1988 (Cth) a minimum requirement for the issue of the warrants to be served and executed outside of Australia is that they be issued by a stipendiary magistrate and that the warrants used did not meet that requirement. There is no such provision or requirement under the Extradition Act 1988 (Cth). He referred to what he broadly described as “the scheme agreed to by both Australia and the United Kingdom” and a requirement that warrants grounding extradition requests be issued “by a competent judicial authority”. Mr Birch then relies upon a dictionary definition that such a person is:
“(a) adequately qualified and;
(b) a legally qualified person.”
He says that Ministry of Justice records show that Mr Ur, the Justice of the Peace, was not an appointed magistrate on 19 January 1989 and that the warrants were in fact invalid. I take that to be a contention that they were invalid for the purposes of extradition proceedings. There is, however, nothing in either the Extradition Act 1988 (Cth) or the Extradition Act 1989 (UK) to impose a threshold requirement, for which he contends, that warrants issued in this country must be issued by a magistrate. And in any event, the office of Justice of the Peace, would, for this purpose, fall within the description of a competent judicial authority.
The Justice of the Peace is given a wide range of functions, including judicial functions under the Justices Act 1902. I might add, by way of aside, that the issue of warrants is in itself an administrative function although carried out by judicial authorities under Australian law. There is no substance in the first point that he raises in his complaint that the warrants were somehow deficient for the purposes of extradition because issued by a justice of the peace, rather than a stipendiary magistrate.
The third contention is that Mr Birch was not served with copies of the warrants when taken into custody in the United Kingdom. If there is some basis for that complaint, and there does not appear to be a factual basis disclosed, that is a complaint directed to the British Government. This was not an act of the Commonwealth of Australia and this Court has no jurisdiction to entertain it. In any event, the ultimate outcome of the extradition process was that the applicant was tried and convicted of stealing money from others. His complaint seems to be that he lost a chance to escape the justice of this country. His application is untenable and will be dismissed.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French
Associate:
Dated: 18 November 1997
Mr C. Birch appeared in person. Counsel for the Respondent: Mr T. Carey Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 November 1997 Date of Judgment: 18 November 1997
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