Burns v Romeo

Case [2018] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

BURNS v ROMEO

[2018] SASC 34

Judgment of The Honourable Justice Nicholson

22 March 2018

EXTRADITION - SERVICE AND EXECUTION OF PROCESS ACT - EXECUTION OF WARRANTS - ORDER FOR RETURN

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

The accused was arrested pursuant to a warrant issued out of the Northern Territory and presented before a Magistrate.  The Magistrate made an order pursuant to section 83(8)(a) of the Service and Execution of Process Act 1992 (Cth) that the accused be remanded on bail with a condition that he appear in the Darwin Local Court on an assigned hearing date. 

An application in the criminal jurisdiction for review of that decision, under section 86 of that Act, was made by the police officer to whom the warrant had been issued.  He sought an order that the accused be extradited to the Northern Territory in custody (section 83(8)(b)).  In addition an application in the civil jurisdiction (in the nature of habeas corpus) alleging unlawful detention was made by the accused.  Both applications were challenged as to competency.

Held:

1.  The application for review under section 86 is competent.

2.  On review, the warrant issued out of the Northern Territory is invalid.

3.  Accordingly, the accused is entitled to be released from custody unconditionally pursuant to section 83(10) of the Service and Execution of Process Act.

4.  As a further consequence, the unlawful detention application lacks utility; its competency does not need to be considered and it should stand dismissed.

Service and Execution of Process Act 1992 (Cth) s 82, s 83, s 86; Misuse of Drugs Act (NT) s 5, s 8; Bail Act 1985 (SA) s 14, s 16, s 21A; Supreme Court Civil Rules 2006 r 198; Acts Interpretation Act 1901 (Cth) s 7, s 36; Police Administration Act (NT) s 121, referred to.
Question of Law Reserved on Acquittal (No 5 of 1999) [2000] SASC 51, (2000) 76 SASR 356; R v Conley (1979) 21 SASR 166; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; Malaysian Declaration Case [2011] HCA 32, (2011) 244 CLR 144; Ousley v The Queen (1997) 192 CLR 69, considered.

BURNS v ROMEO
[2018] SASC 34

Criminal: Application; Civil: Application

NICHOLSON J.

Introduction

  1. Giuseppe Bruno Romeo is the respondent to a purported application filed in the criminal jurisdiction of the Court and also the plaintiff in an application filed in the civil jurisdiction of the Court.  The resolution of each application turns, in part or in whole, on the one fundamental issue.  As a consequence, I heard argument on both applications at the same time.  For convenience only, I will refer to Mr Romeo throughout these reasons as the accused.  I have referred to the first…

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AGLC
Burns v Romeo [2018] SASC 34
Case
[2018] SASC 34
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by Detective Burns for an order that a warrant for the arrest of the accused be executed. The application also sought orders relating to the accused's bail and unlawful detention. The Court of Appeal was asked to review the decision of a single judge of the Supreme Court who had dismissed the application. The Court of Appeal found in favour of the accused and dismissed the application.
The central issue for the Court was whether the warrant for the arrest of the accused was invalid due to an error in the expression of the jurisdictional facts on the face of the warrant. The Court considered whether the error rendered the warrant invalid and whether the accused should be released from custody. The Court also considered whether the application for bail review should be dismissed.
The Court found that the expression of only the jurisdictional facts in section 121(1) on the face of the warrant did not give rise to an inference that the Justice of the Peace had failed to satisfy himself of the jurisdictional fact in subsection 121(3)(c). However, the requisite state of satisfaction under subsection 121(3)(c) remained a jurisdictional fact necessary to be recorded on the face of the warrant. The Court held that the warrant was invalid due to the error in the expression of the jurisdictional facts. Consequently, the accused was to be unconditionally released. The Court also dismissed the application for bail review and the application for unlawful detention.
The Court made several orders in relation to the application. The Court ordered that the name of Detective Burns be recorded as the party making the application. The Court declared that the warrant was invalid and ordered the accused to be unconditionally released. The Court also revoked the Magistrate's order on 9 March 2018 remanding the accused on bail. The Court dismissed the Director of Public Prosecutions' application for a review of the Magistrate's order on bail and the accused's unlawful detention application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
The expression of only the section 121(1) jurisdictional facts on the face of the warrant will not ordinarily, and does not in this case, give rise to an inference that the Justice of the Peace failed to satisfy himself of the jurisdictional fact in subsection 121(3)(c).[18] Nevertheless, on my construction of section 121, the requisite state of satisfaction under subsection 121(3)(c) remained a jurisdictional fact (whether or not properly arrived at by the Justice of the Peace) necessary to be recorded on the face of the warrant.[18] Ousley v The Queen (1997) 192 CLR 69.Conclusion I am satisfied that the warrant is invalid. As such, there is no occasion to review the Magistrate’s order pursuant to subsection 83(8)(a) for the accused to be released on bail. Rather, the accused is to be unconditionally released pursuant to subsection 83(10). It follows that there is no utility to the accused’s unlawful detention application, the competency and merits of which do not need to be further considered. I note that the original application for review of bail under the Bail Act has been withdrawn by the Crown Solicitor acting on behalf of the Director of Public Prosecutions for this purpose. I make the following declaration and orders:In the criminal action number 73 of 2018:1.An order that the Originating Application filed on behalf of Detective Burns is amended to record his name as the party making the application. That amendment is to operate nunc pro tunc to the date of filing of the Originating Application.2.A declaration that the warrant is invalid.3.An order that the accused is to be unconditionally released.4.An order revoking the Magistrate’s order on 9 March 2018 remanding the accused on bail.In the criminal action number 72 of 2018:5.An order that the Director of Public Prosecutions’ application for a review under the Bail Act of the Magistrate’s order on 9 March 2018 remanding the accused on bail stands dismissed.In the civil action number 297 of 2018:6.An order that the accused’s unlawful detention application filed in the civil jurisdiction of this Court stands dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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