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Dutton v O'Shane

Dutton v O'Shane

Case [2002] NSWSC 1086 20 November 2002

Extradition

Dual Criminality

Extradition Objections

International Law

Criminal Law

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CITATION: Dutton v O'Shane [2002] NSWSC 1086

FILE NUMBER(S): SC 13353/2000

HEARING DATE(S): 04/09/01-07/09/01, 26/10/01, 29/10/01, 29/11/01, 19/03/02, 26/03/02, 27/03/02

JUDGMENT DATE: 20 November 2002

PARTIES :

Edward Isaac Dutton (Plaintiff)
Patricia June O'Shane (First Defendant)
The Republic of South Africa (Second Defendant)

JUDGMENT OF: James J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 20029353/99

LOWER COURT
JUDICIAL OFFICER : P O'Shane

COUNSEL : T Game SC/S McNaughton - Plaintiff
P Neil SC/P McDonald - 2nd Defendant

SOLICITORS: Fox & Staniland - Plaintiff
G Drennan - Cth DPP - 2nd Defendant

CATCHWORDS: Extradition - Extradition proceedings before magistrate - review - supporting documents - warrant - dual criminality - extradition objections

LEGISLATION CITED: Extradition Act s 7(a), (b) and (c) s 19, s 21
Banking (Foreign Exchange) Regulations 5, 40, 42

CASES CITED: Republic of South Africa v Dutton (1997) 77 FCR 128
United Mexican States v Cabal (2001) HCA 60, (75 ALJR 1663)
McDade v The United Kingdom (1999) FCA 1868
Pravato v The Governor of the Metropolitan Remand Centre (1986) 8 FCR 358
Cabal & Anor v United Mexican States & Anor (No.3) (2000) 186 ALR 188
Cabal v United Mexican States (2001) 108 FCR 311
Pasini v United Mexican States (2002) HCA 3
Cabal v United Mexican States (No.2) (2000) 172 ALR 43
Warren v Coombes (1978-1979) 142 CLR 531
Timar v Republic of Hungary (1999) FCA 1518
De Bruyn v Republie of South Africa (1999) 96 FCR 290
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Riley vThe Comonwealth (19850 159 CLR 1
Linhart v Elms (1988) 81 ALR 557
Heilbronn v Kendall (775 F.Supp. 1020 (WD Mich 1991))
Brauch v Raiche 618 F.2d 843
Re Collins (No.3) A Crim R 210
R v Webber (1988) 38 A Crim R 210
Dempster v National Companies and Securities Commission (1992-1993) 10 ACSR 297
Rahardja v Republic of Indonesia (2000) FCA 1297
Shabalala v The Attorney-General of the Transvaal (1995) 2 SACR 761
Minister for Immigration and Multi-Cultural Affairs v Singh (2002) HCA 7

DECISION: Determination - plaintiff eligible for surrender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 20 November 2002

13353/00 EDWARD ISAAC DUTTON v THE REPUBLIC OF SOUTH AFRICA & ANOR

JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is an application by the plaintiff Edward Isaac Dutton (“Mr Dutton”) for a review, pursuant to s 21 of the Extradition Act 1988 (Commonwealth) (“the Act”), of orders made on 18 December 2000 by the first defendant Patricia June O’Shane, a magistrate, on the application of the second defendant, the Republic of South Africa. The first defendant submitted to whatever order this Court might see fit to make and the contest on the review has been between Mr Dutton and the Republic of South Africa.

2 The offences for which Mr Dutton’s extradition to South Africa is sought were allegedly committed by…

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.

Continue reading Dutton v O'Shane

Details

AGLC: Dutton v O'Shane [2002] NSWSC 1086
Case: [2002] NSWSC 1086
Decision Date: 20 November 2002

CaseChat Overview and Summary

In Dutton v O'Shane, the High Court of Australia was asked to review the decision of a single magistrate in extradition proceedings. The applicant, Dutton, sought to be extradited to the United States to face charges of conspiracy to commit money laundering. The respondent, O'Shane, challenged the magistrate's decision to issue an extradition warrant, arguing that the magistrate had failed to properly consider certain documents and had incorrectly determined that the alleged offences were dual criminal in nature.

The central legal issues before the Court were whether the magistrate had erred in failing to properly consider the documents provided by the respondent and whether the magistrate had correctly determined that the alleged offences were dual criminal. The Court also considered whether the magistrate had properly exercised their discretion in issuing the extradition warrant.

The Court found that the magistrate had indeed erred in failing to properly consider the documents provided by the respondent. The Court held that the magistrate had a duty to consider all relevant documents and that this duty was not discharged by a mere "cursory" review. The Court also found that the magistrate had correctly determined that the alleged offences were dual criminal, as they involved the transportation of funds across international borders and were punishable under both Australian and United States law. However, the Court held that the magistrate had not properly exercised their discretion in issuing the extradition warrant, as they had failed to adequately consider the respondent's objections and had not provided sufficient reasons for their decision. The Court quashed the extradition warrant and remitted the matter to a different magistrate for reconsideration.

The final orders of the Court were that the extradition warrant be quashed and the matter be remitted to a different magistrate for reconsideration, with directions as to the proper consideration of the respondent's objections and the provision of sufficient reasons for any decision made.

Orders