Farina v Honourable Amanda Vanstone

[2000] FCA 583

FEDERAL COURT OF AUSTRALIA

Farina v Honourable Amanda Vanstone [2000] FCA 583

ADMINISTRATIVE LAW – extradition – Wednesbury unreasonableness – whether exercise of the Minister’s discretion to extradite applicant to Italy miscarried on the ground of Wednesbury unreasonableness – whether applicant would receive a fair trial if surrendered to Italy

EXTRADITION – Extradition Act 1988 (Cth) s 22(f) - whether exercise of the Minister’s discretion to extradite applicant to Italy miscarried on the ground of Wednesbury unreasonableness – whether applicant would receive a fair trial if surrendered to Italy

Extradition Act 1988 (Cth) s 22(f)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 applied
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 applied
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 applied
Puhlhofer v Hillingdon London Borough Council [1986] AC 484 applied

GIOVANNI FARINA v
SENATOR THE HONOURABLE MINISTER FOR JUSTICE AND CUSTOMS AMANDA VANSTONE

N 107 OF 2000

TAMBERLIN J
SYDNEY
8 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 107 OF 2000

BETWEEN:	GIOVANNI FARINA APPLICANT
AND:	SENATOR THE HONOURABLE MINISTER FOR JUSTICE AND CUSTOMS AMANDA VANSTONE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The amended application for review is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 107 OF 2000

BETWEEN:	GIOVANNI FARINA APPLICANT
AND:	SENATOR THE HONOURABLE MINISTER FOR JUSTICE AND CUSTOMS AMANDA VANSTONE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	8 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the respondent (“the Minister”) that the applicant should be extradited to Italy.  The amended application also seeks an injunction restraining the extradition.

2. On 15 February 1999 a magistrate determined that the applicant was eligible for extradition and, pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“the Act”), remanded him in custody pending a final decision by the Minister. The Minister’s decision was then made under s 22 of the Act which relevantly provides:

   “(2)The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence….

   (3)For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

   ….

   (f)the Attorney-General, in his or her discretion, considers that

   the person should be surrendered in relation to the offence.”

3. In the present case there is no dispute that the applicant is an eligible person or that the offences alleged are qualifying extradition offences.

   The Offences

4. The offences for which the extradition was sought are serious. They include kidnapping for the purpose of extortion, attempted murder, attempted kidnapping for the purpose of extortion, unlawful possession and carrying of war arms in a public place, and attempted robbery.  The kidnapping charge relates to the applicant’s alleged involvement, in association with a number of others, in the kidnapping of an Italian industrialist in June 1997.  A ransom of approximately A$5 million was demanded and, after it was paid, the victim was released in February 1998.  The two attempt charges arise out of a second incident that allegedly took place on 7 January 1997.

5. In addition to these charges the applicant has already been convicted of a number of offences in Italy and on 14 October 1986 was sentenced to a term of twenty-seven years imprisonment.  The relevant offences included two counts each of kidnapping for the purpose of extortion and theft of a motor vehicle, and one count of causing aggravated bodily harm.  On 8 August 1996, when he had approximately eight years of that sentence to serve, the applicant was granted day release.  While on day release the applicant absconded on 29 September 1996.  Extradition of the applicant was also sought to require him to serve the remainder of this term.

6. The twenty-seven year sentence imposed on the applicant included imprisonment for three offences in respect of which the magistrate found the applicant was not eligible for extradition.  The Italian authorities have given an undertaking that, if he is extradited, the applicant’s sentence will be reduced to remove the time attributable to these three offences.

   The Minister’s Decision

7. The legal basis on which judicial review of the Minister’s decision is sought is that the decision was so manifestly unreasonable that no reasonable person, or Minister, could have made it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The specific allegation is that there is no real prospect of the applicant receiving a fair trial in Italy and that this required the Minister to refuse to surrender the applicant.

8. In support of this submission Counsel for the applicant referred to several matters, all of which were before the Minister.  The first was that there has been wide spread publicity in Italy as to the involvement of the applicant in the actual and attempted kidnappings and it is said that this has destroyed any prospect the applicant might have had for a fair trial.  I was referred to a report of Professor Mastronardi, a clinical psychiatrist and Chief Professor of the Department of Forensic Psychopathology at the University of “La Sapienza”, Rome.  Professor Mastronardi was asked to examine a total of approximately eighty articles from daily newspapers circulating in Italy, and four articles from weekly news magazines, on the subject of the charges brought against the applicant, as well as two reports of parliamentary debates.  His conclusion on considering these was that the negative contamination of public opinion perpetrated against the applicant precluded a fair reception being given to any arguments he may raise in his defence, and placed in jeopardy any fair and just trial in Italy.

9. Counsel for the applicant also relied on a letter dated 21 September 1999 from Mr Ciappi, an Italian advocate acting for the applicant, sent to the applicant’s Australian solicitor.  This letter refers to an application filed in the European Court of Human Rights (“ECHR”) in which the applicant claims he challenges the decree of arrest, made against him in Italy, which grounded the extradition proceedings.  The application to the ECHR alleges the applicant has been denied his right “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”  The application was filed on 16 September 1999.  There is no indication when it is to come on for hearing.

10. A further matter referred to by Counsel for the applicant was that in Italy the applicant would be tried by a panel consisting of two judges, one of whom is in substance a prosecuting or investigating magistrate and six lay persons.  The lay persons were said to be not subject to direction in law or otherwise by the judges.  The role given to these lay persons was said to exacerbate the risks that the applicant would not receive a fair trial.

    Manifest unreasonableness

11. Counsel for the applicant accepted that to succeed he must show that the Minister’s decision was so manifestly unreasonable that no reasonable person, or Minister, could have made it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Where the real ground of a complaint is unreasonableness in the sense of giving too much weight to one consideration or another, the Court must proceed with caution to ensure that it does not trespass into a review of the decision on the merits. The test in Wednesbury, and the strict limits that courts applying this ground of review must adhere to, were referred to by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41. The need for caution in reaching a conclusion that the decision is manifestly unreasonable is particularly acute where the decision under review is that of a senior Minister exercising a discretion framed in the broadest terms: Peko-Wallsend at 41.  These observations apply to this case.  The decision was made personally by the Minister and the discretion contained in para 22(3)(f) is not expressly confined, conditional or delimited.  Further, the exercise of discretion involves Australia’s international obligations, and our relations with another sovereign State seeking extradition to enforce its criminal law.  In this area it will be often be extremely difficult to attack a decision as unreasonable because of the wide ranging considerations that may apply in any particular case.

12. In the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 587, Gleeson CJ and McHugh J cited the House of Lords decision in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518 where it was said by Lord Brightman that the courts should only interfere in cases where it was obvious that a decision-maker entrusted with a broad discretion had “acted consciously or unconsciously in a perverse manner”. A finding that a decision is unreasonable or incorrect on the merits is in itself is not sufficient. The cases emphasise that the Court must not simply substitute its own view of what is reasonable for that of the decision-maker whose decision is under review, especially where the real ground of complaint is that the Court has unreasonably given too much weight to one consideration or another: see Peko Wallsend Ltd at 42.

    Reasoning

13. Included in the documents before the Minister were the report of Professor Mastronardi and the letter of Mr Ciappi, together with a great deal of additional material.  Of particular importance is a report from the Criminal Law Division of the Attorney-General’s Department to the Minister (“the Report”) which annexed, inter alia, a detailed analysis (“the analysis”) of the relevant extradition objections in this case. 

14. The analysis discusses the evidence of Professor Mastronardi and concludes that, as noted by the Italian authorities, the possibility of adverse publicity is inevitable in cases of serious high profile crimes but that this should not mean that the allegations should not proceed to trial.  The analysis also deals specifically with the statement of Mr Ciappi that the applicant would not receive a fair trial because of the political debate in Italy in relation to the day release program.  The view is expressed in the analysis that the fact that the applicant’s case has been used as an example in arguments relating to the day release program did not support the proposition that he would be prejudiced at his trial.

15. The analysis also notes advice received from the Italian Ministry of Justice that the applicant would be tried by three professional judges only, not two judges and six lay people as submitted by the applicant.  A letter dated 5 August 1999 from the Italian Ministry for Justice is also annexed to the Report.  This letter refers to the request for extradition and the seriousness of the offences for which he is charged, and for which he has already been convicted.  It stresses that “Giovanni Farina’s extradition is very important for Italy” and asserts that Italian public opinion is upset by the gravity of the proved and alleged offences.

16. The Report and the analysis both refer to the application to the ECHR.  They note that the arrest warrant is still valid and that the application does not of itself constitute a bar to the surrender.

17. The conclusion of the analysis furnished to the Minister was that the Minister could be satisfied that there were no circumstances which required her to refuse to surrender the applicant to Italy under the general Ministerial discretion.  The Report recommended the applicant be surrendered.  This recommendation was accepted by the Minister and a surrender warrant was signed on 24 December 1999. 

18. Having considered the material before the Minister, summarised in the Report and the annexure, I consider that there was ample material on which she could reach a decision and that surrender was appropriate.  In relation to whether or not the applicant would receive a fair trial the various letters from the Italian authorities provide evidence contrary to the assertions of Professor Mastronardi and Mr Ciappi which the Minister could reasonably accept.  Further, the importance placed on the matter by the Italian government provided an important consideration in support of the surrender of the applicant to Italy.

19. In substance this is a situation where there were countervailing propositions and material before the Minister who was entitled in the exercise of her wide discretion to form an opinion as to the appropriate course of action.  The decision was not on its face manifestly unreasonable in the light of the material produced.  Nor is any error of law or principle made out.  Accordingly the amended application for review is dismissed with costs.

20. An application was made after announcement of my conclusion for a stay of the surrender pending the decision of the ECHR.  However given the history and gravity of this matter I refused this application.  I consider that no appropriate grounds for a stay have been made out.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             8 May 2000

Counsel for the Applicant:	R McCrudden R Webb
Solicitor for the Applicant:	David McIlwraith
Counsel for the Respondent:	S Gaegler
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 April 2000
Date of Orders Given:	19 April 2000
Date of Reasons for Judgment:	8 May 2000