Cooper v Nicholson

[2000] VSC 8

SUPREME COURT OF VICTORIA
CAUSES JURISDICTION	Do not Send for Reporting
Not Restricted

No. 8067 of 1999

MURRAY MAXWELL COOPER	Plaintiff
v.
GAVIN JOHN NICHOLSON	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 JANUARY 2000
DATE OF JUDGMENT:	18 JANUARY 2000
CASE MAY BE CITED AS:	COOPER v. NICHOLSON
MEDIUM NEUTRAL CITATION:	[2000] VSC 8

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CATCHWORDS:      Extradition – Appeal against order – Notice of Appeal defective – Any further appeal out of time – Service and Execution of Process Act 1992 (Com.) s.86 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	Mr. N. Crafti	Victorian Government Solicitor

HIS HONOUR:

1. This is an appeal from the order of the Magistrates' Court at Moe made on 24 December 1999, whereby it was ordered that the defendant, Murray Maxwell Cooper, be delivered into the custody of Gavin Nicholson to be returned to Albury in the State of New South Wales.

1. The material before me is to the effect that on 25 November 1999 the appellant was released from custody at the Junee Correctional Centre.  On that same day he is alleged to have attended at or near premises at 76 Jacaranda Street, Albury.  It is further alleged that at or near those premises he assaulted one Peter Verland Harcourt by punching and kicking him to the face and body.

1. The case against the appellant is that later that same day he returned to 76 Jacaranda Street, where he further assaulted Harcourt by deliberately cutting his face, eyes and nostrils with a knife.  At the time the appellant was apparently living in Albury or at all events in the Albury area.

1. The Albury police were unable to locate the appellant at his usual place of residence, although in the affidavit of Gavin John Nicholson sworn 5 January 2000, it is said that a police officer spoke to the appellant by telephone at or about that time, and that the appellant said he would come in and see him.  When the appellant did not do so Detective Senior Constable Nicholson obtained a warrant to apprehend the appellant.  That warrant was issued by a Justice of the Peace in Albury on 1 December 1999.

1. In due course the appellant was arrested in Victoria and taken before the Magistrates' Court at Moe, where an application was made that he be extradited to Albury.  The order to which I have already referred was then made on 24 December.  That same day the appellant filed in the court a Notice of Appeal against the order.  The Notice of Appeal names as the respondent Gavin Nicholson.

1. The point is taken by counsel for the respondent that the Notice of Appeal is defective.  In that regard counsel for the respondent points to the provisions of s.86 of the Commonwealth Service and Execution of Process Act 1992, sub-s.(3) of which provides that the respondent to such an appeal is to be the Commissioner of the police force of the state in which the person was apprehended.  Section 86 also makes it clear that an application by way of appeal must be made within seven days after the making of the order.  So that even at this stage if the Notice of Appeal was amended to substitute the Commissioner of Police for Victoria as the respondent, the application would be outside the time stipulated in sub-s.(2) of s.86.

1. That the provisions of sub-s.(2) are mandatory is clear from the decision of Batt, J. In re Dalton (1995) 120 F.L.R. 408. I agree with His Honour's decisions as expressed in that case.

1. The Notice of Appeal is defective and it is now too late to seek to make any amendment to it.  On that basis alone the appellant's appeal must fail.  However, having heard what the appellant has said in relation to the matter, there is no basis upon which this court would be justified in interfering with the order of the Moe Magistrates' Court.  Accordingly, the appeal will be dismissed.  The order of the Moe Magistrates' Court made on 24 December 1999 is confirmed.

1. It will follow from that order that the defendant is to be delivered into the custody of Gavin Nicholson to be returned to Albury in the State of New South Wales.

1. MR CRAFTI:  I am instructed, Your Honour, to make an application for costs, reserve costs of this appeal.

1. HIS HONOUR:  Yes.  Is there anything you wish to say, Mr Cooper, as to why you should not be required to pay the costs the of the appeal .

1. PLAINTIFF:  No, Your Honour.

1. HIS HONOUR:  Yes, very well.

1. I order that the appellant pay the respondent's costs of the appeal including any reserve costs.

1. PLAINTIFF:  Can I make an application for bail?

1. HIS HONOUR:  No, I would not entertain any application for bail, Mr Cooper.

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