Foster v Attorney-General (Cth)
[1997] FCA 1233
•14 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
JUDICIAL REVIEW - Application for review of decision of respondent to issue a notice pursuant to s 16 of the Extradition Act 1988 (Cth) - review of statutory pre-conditions necessary for the exercise of the discretionary power to issue such a notice - residual discretion not to issue notice - requirement for natural justice and procedural fairness.
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 - Refd
Todhunter v United States of America (1995) 57 FCR 70 - Appl
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 - Appl
Local Government Board v Arlidge [1915] AC 120 - Appl
Ridge v Baldwin [1964] AC 40 - Refd
R v Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254 - Appl
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 - Appl
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 - Appl
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 - Appl
O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 - Appl
Kioa v West (1985) 159 CLR 550 - Appl
Annetts v McCann (1990) 170 CLR 596 - Appl
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Appl
South Australia v O’Shea (1987) 163 CLR 378 - Refd, Cons
Johns v Australian Securities Commission (1993) 178 CLR 408 - Appl
PETER CLARENCE FOSTER v THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF AUSTRALIA
No QG 121 of 1997
COOPER J
BRISBANE
14 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 121 of 1997
BETWEEN:
PETER CLARENCE FOSTER
APPLICANTAND:
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
14 NOVEMBER 1997
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 121 of 1997
BETWEEN:
PETER CLARENCE FOSTER
APPLICANTAND:
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
COOPER J
DATE:
14 NOVEMBER 1997
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The applicant, Peter Clarence Foster, was arrested on 15 April 1997 pursuant to a provisional warrant issued under s 12 of the Extradition Act 1988 (Cth) (“the Act”). The request for the applicant’s arrest pending the making of a formal extradition request was made on behalf of the United Kingdom (“the UK”). On 13 May 1997 the applicant was granted bail by the Magistrates Court at Brisbane, Queensland.
On 22 May 1997 the British High Commission in Canberra, Australian Capital Territory, on behalf of the UK, delivered to the Department of Foreign Affairs and Trade, Diplomatic Note Number 36/97 requesting the extradition of the applicant from Australia to the UK. The respondent, the Attorney-General of the Commonwealth of Australia (“the Attorney-General”), issued a notice pursuant to s 16 of the Act on 27 May 1997.
The applicant on 14 August 1997 by application filed in this Court seeks the following relief pursuant to s 39B of the Judiciary Act 1903 (Cth) :-
1. An order that the respondent validly exercise the discretion conferred by s 16(1) of the Extradition Act 1988 as to whether to issue a notice in the statutory form stating that an extradition request has been received in relation to the Applicant;
2. A declaration that the Notice dated 27th day of May 1997 issued by the respondent purportedly under s 16(1) of the Extradition Act 1988 in respect of a purported extradition request dated 22nd day of May 1997 from the United Kingdom in relation to the applicant (such Notice hereinafter referred to as ‘the Notice’) is a nullity in that the respondent failed to validly exercise his discretion as required by the provisions of Section 16(1) of the Extradition Act 1988;
3. An order setting aside the Notice;
4. A declaration that all proceedings taken upon the Notice to date have been invalid and are a nullity;
5. An injunction restraining the respondent, his subordinate officers, servants and/or agents from :-
(a) taking or causing to be taken any action on the Notice; and
(b)taking or causing to be taken any action on any order and/or warrant which may have been made and/or issued in pursuance of the Notice;
6. Such further or other orders as the Court deems meet.
The application is not an appeal on the merits of the respondent’s decision. Rather it is confined to questions of law and the existence of demonstrable legal error vitiating administrative action.
On 20 May 1997 the solicitors for the applicant wrote to the respondent making representations on behalf of their client as to the exercise by the Attorney-General of his discretion under s 16 of the Act. The letter concluded :-
“Mr Foster is an Australian citizen who allowed himself to be enlisted by the British authorities to assist them in a covert investigation of the activities of persons operating within the prison system of the United Kingdom. As a direct result of the way in which he was subsequently treated by those authorities (which behaviour has never been satisfactorily explained), his covert activities are now public knowledge. Consequently, Mr Foster undoubtedly would find himself in an extremely vulnerable situation were he to re-enter the penal system in the United Kingdom, even for a short period pending a grant of bail.
You are being asked to approve procedures designed to effect his return to that system, a return which would clearly place him in a life-threatening situation. In our respectful submission, such considerations appropriately would and must be factored into the exercise of your discretion in the matter.
In our respectful submission all of these matters must be closely investigated at this stage. We would be happy to provide whatever information or material you might require to assist in that investigation. To that end we would be happy to attend for a conference with you in relation to the matter, and to provide you with such evidence as you might require, if that were considered likely to be helpful and appropriate. We await your response in due course.”
One of the matters referred to by the applicant’s solicitors was a newspaper article which appeared in the Courier Mail newspaper in Brisbane on 15 May 1997. The article concluded :-
“A senior police figure last night said he had information that British authorities only wanted Foster extradited to England to give evidence at a corruption inquiry.
The source said British police were not interested in the fresh charges but would use those charges to bargain with Foster - most likely dropping them if he agreed to give evidence to help jail several corrupt high-level officials.”
On 27 May 1997 Geoffrey David McDougall, a government lawyer in the Extradition Casework Unit of the Commonwealth Attorney-General’s Department (“the Department”) prepared a briefing for the respondent. The departmental minute was signed by Mr McDougall, Mr Meaney, the Assistant Secretary International Branch, and endorsed by Mr Dabb, the First Assistant Secretary, Criminal Law Division and Mr Reaburn, the Deputy Secretary of the Department. The minute dealt specifically with the solicitor’s letter of 20 May 1997 and the matters raised in it. Attachment A to the minute was a briefing which addressed each of the statutory elements of a decision under s 16 of the Act. The solicitor’s letter of 20 May 1997 and the Courier Mail newspaper article were attached to the minute as attachment B. A draft s 16 notice was also attached to the minute for signature by the respondent if he was minded to do so.
For the purpose of this application the respondent has admitted that :-
(a)He did not personally receive the extradition notice although he became aware of it through his receipt of the submission;
(b)The only documents which he considered before signing the s 16 notice in respect of the applicant were the submission and its attachments;
(c)He had regard to each of the matters set out in the submission and the attachments in exercising his discretion to issue the s 16 notice in respect of the applicant.
The grounds relied upon by the applicant to sustain the relief claimed are :-
(a)The Attorney did not “receive” an extradition request from an extradition country in respect of the applicant;
(b)The Attorney did not form the opinion that the applicant’s conduct involved dual criminality;
(c)The Attorney took into account an irrelevant consideration namely an “exaltation” to deal with the extradition request urgently;
(d)The Attorney failed to take into account a relevant consideration, namely matters raised in the applicant’s bail hearing before the Magistrates Court at Brisbane on 12 and 13 May 1997;
(e)The Attorney failed to properly investigate allegations that the extradition request was made in furtherance of ulterior motives;
(f)The Attorney denied the applicant natural justice in failing to provide him with an opportunity to respond to certain factual assertions contained in a submission by staff of the Attorney-General’s Department dated 27 May 1997;
(g)The Attorney failed to make any proper inquiry into the issue of the applicant’s safety upon return to a British prison;
(h)The Attorney took into account misleading and/or untruthful assertions made in the submission.
The Statutory Scheme for Extradition
In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, a Full Court of this Court said (at 389) :-
“The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.”
The receipt of an extradition request empowers the Attorney-General, as a matter of discretion, to give notice in writing in the statutory form to a magistrate pursuant to s 16 of the Act: Todhunter v United States of America (1995) 57 FCR 70 at 74.
Where a person is on remand under s 15 of the Act and no notice has issued under s 16 by the Attorney-General after the expiration of forty-five days, the person is to be brought before a magistrate and released from custody unless the magistrate is satisfied that a notice is likely to be given within a particular period that is reasonable in all the circumstances (s 17).
Unless a person consents to being surrendered to the extradition country concerned (s 18), a magistrate is required to conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country (s 19).
So far as is relevant for present purposes, s 19 provides :-
“19(1) ...
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a)the supporting documents in relation to the offence have been produced to the magistrate;
(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate;
(c)the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d)the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), ‘supporting documents’, in relation to an extradition offence, means;
(a)if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b)if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:
(i)the conviction;
(ii)the sentence imposed or the intention to impose a sentence; and
(iii)the extent to which a sentence imposed has not been carried out; and
(c)in any case:
(i)a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii)a duly authenticated statement in writing setting out the conduct constituting the offence.
(4)Where, in the proceedings:
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b)the magistrate considers the deficiency or deficiencies to be of a minor nature;
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.
(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.”
The decision of the magistrate is reviewable in accordance with the provisions of s 21 of the Act.
Where a magistrate makes an order under s 18 of the Act (consent to surrender) or under s 19 consequent upon a determination that a person is eligible to surrender, the Attorney-General is required under s 22 to determine whether the eligible person (as defined) is to be surrendered in relation to a qualifying extradition offence (as defined). The decision to surrender or not is made subject to conditions contained in s 22(3). The subsection provides :-
“(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a)the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(b)the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
(c)where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i)the person will not be tried for the offence;
(ii)if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii)if the death penalty is imposed on the person, it will not be carried out;
(d)the extradition country concerned has given a speciality assurance in relation to the person;
(e)where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i)surrender of the person in relation to the offence shall be refused; or
(ii)surrender of the person in relation to the offence may be refused;
in certain circumstances - the Attorney-General is satisfied:
(iii)where subparagraph (i) applies - that the circumstances do not exist; or
(iv)where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f)the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.”
The question of the relationship between the decisionmakers at each stage of the process was considered by the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528. In their joint judgment, Brennan CJ, Dawson and McHugh JJ said (at 538) :-
“No person is liable to be taken into custody under the Act unless a magistrate is satisfied, on the basis of the information contained in the affidavit supporting the application for the arrest of that person, that the person is an extraditable person. But the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.
Of course, the same issue or similar issues may arise for independent determination by the respective repositories of powers where the same issue or a similar issue conditions the exercise in sequence of their respective powers. Thus, if the Attorney-General forms an opinion when considering the issue of a s 16 notice that there is an extradition objection, he has no power to issue the notice (s 16(2)(b)); if the s 19 magistrate is satisfied that there are substantial grounds for believing that there is an extradition objection, the magistrate must order the person to be released (s 19(2)(d), (10)(a)); and unless the Attorney-General in making a determination under s 22 is satisfied that there is no extradition objection, he cannot issue a warrant for the person’s surrender under s 23 (s 22(3)(a)). But the s 19 magistrate does not review the Attorney-General’s non-formation of an opinion under s 16; nor does the Attorney-General review the s 19 magistrate’s state of non-satisfaction. The existence or possible existence of extradition objections fall for consideration by the Attorney-General under s 16, by the s 19 magistrate and again by the Attorney-General under s 22 but on each occasion the repository of the relevant power makes an independent determination of the issue on which the existence of that power depends.”
It is therefore possible that certain issues, whether of jurisdictionary fact or of general discretion, may be addressed on more than one occasion in the process.
Ground (a)
An extradition request is defined in s 5 of the Act as “a request in writing by an extradition country for the surrender of a person to the country”. A request is therefore a physical document. For the purposes of this ground the applicant argues that the Attorney-General must receive into his or her physical possession the actual written request for extradition before the Attorney-General is empowered to act under s 16 of the Act. In the instant case the written request went to the Department of Foreign Affairs and Trade on 22 May 1997 and thence on the same day to the Attorney-General’s Department. The respondent has admitted that he did not personally receive the extradition request, although he became aware of it through the receipt of the submission prepared by his Department for his consideration. The respondent contends that physical receipt of the extradition request by the Department is receipt on behalf of the Attorney-General and is a sufficient receipt for the purposes of s 16 of the Act.
Section 16 of the Act must be construed against the background of Ministerial responsibility in a Westminster system of government. Ordinarily it is not expected that the Minister will perform all aspects of a statutory function personally. In Local Government Board v Arlidge [1915] AC 120, Viscount Haldane LC said (at 133) :-
“... The Minister at the head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency.”
See also Ridge v Baldwin [1964] AC 40 at 72.
Subject to the terms of the legislation a Minister may delegate the performance of a duty imposed by statute: R v Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254 at 302 - 303. The legislature is to be taken to have in mind the ordinary processes of government when it enacts legislation and that any power or obligation conferred or imposed by the legislature will be undertaken or discharged in accordance with those processes: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 417; Odgers Construction of Deeds and Statutes 5th Ed (1967) at 388.
There is nothing in s 16 of the Act which requires the Attorney-General to personally receive into his possession the written document constituting the extradition request. Nor is there anything in the nature, scope or purpose of the receipt of the extradition request which would make it unlikely that the legislature intended that the Attorney-General could not act through the agency of his departmental officers as a matter of administrative necessity to receive the request: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38. Likewise, there is no obvious statutory purpose or object which would require for its achievement personal receipt of the extradition request by the Attorney-General.
I find that receipt of the extradition request on 22 May 1997 by officers of the Attorney-General’s Department from the Department of Foreign Affairs and Trade, which received it from the British High Commission in accordance with ordinary diplomatic channels and procedure, is a sufficient receipt of the extradition request for the purpose of s 16(1) of the Act.
The first ground therefore fails.
Ground (b)
The applicant submitted that the respondent was required by s 16(2)(a)(ii) personally to consider the conduct of the person constituting the extradition offence for the purpose of determining whether dual criminality existed. Because the only documents which were submitted for the respondent’s consideration were the departmental minute of 27 May 1997 and its attachments, the respondent, it was submitted, did not consider the conduct constituting the extradition offence. This followed, it was submitted, because there was no description of the applicant’s alleged conduct constituting the extradition offence in the documents provided to the respondent. It was submitted that being so uninformed, the respondent could not properly form the opinion required by s 16(2)(a)(ii) of the Act.
Section 16(2)(a)(ii) only requires that the Attorney-General hold the relevant opinion. The notice issued by the respondent under s 16 of the Act and signed by him expressly states that he held the requisite opinion. In order to avoid the consequence of the respondent in fact holding the opinion, the applicant must demonstrate that no person in the position of the respondent on 27 May 1997, having the material which was available to the respondent, could reasonably have held the opinion. That is, the applicant must show that the opinion was perverse: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228.
Section 16(2)(a) imposes no restriction upon how the Attorney-General is to come to the opinions required by s 16(2)(a)(i) and (ii). There is no requirement in s 16 that the Attorney-General is personally to conduct an investigation to determine what conduct is alleged to constitute the extradition offences for which surrender is sought and then to investigate and consider whether that conduct would have constituted an extradition offence in Australia. The Attorney-General is entitled to have the investigation and consideration done by officers of his or her Department. They are not tasks which must be personally carried out by the Attorney-General because the nature of the ultimate power under s 16 to issue a notice of the receipt of an extradition request necessarily requires that they be exercised personally: O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11.
Likewise the Attorney-General is entitled to rely upon the investigation, consideration and advice of his Departmental officers if he or she chooses to do, as the basis for the opinion which the statute requires be held, where consideration of the conduct and its criminality are not reserved by the statute to the Attorney-General.
The respondent had before him Attachment A to the departmental minute of 27 May 1997. That attachment dealt specifically with the statutory preconditions necessary for the exercise of the discretionary power to issue a notice under s 16. Attachment A said, so far as is presently relevant :-
“(c) You must be satisfied that if the alleged conduct had taken place in Australia at the time the request was received, it would have been an extradition offence in relation to Australia.
Comments: The Commonwealth DPP has advised that Foster’s alleged conduct, had it taken place in Queensland at the time the request was received, would have constituted ‘extradition offences in relation to Australia’, as defined in the Act, in that the conduct would have constituted offences against Queensland law punishable by imprisonment for a period of not less than 2 years.
The Commonwealth DPP has advised that Foster’s alleged conduct would amount to the offences of conspiracy to defraud contrary to section 430(1) of the Queensland Criminal Code; fraudulent inducement of a person to give credit to a company contrary to section 596 of the Corporations Law of Queensland; uttering false document contrary to section 489 of the Queensland Criminal Code, obtaining goods or credit by false pretence contrary to section 427 of the Queensland Criminal Code, and falsifying books or accounts by an officer of a corporation, contrary to section 437 of the Queensland Criminal Code. The DPP have also advised that Mr Foster’s conduct would amount to, falsification of a corporations books with intent to defraud contrary to section 441 of the Queensland Criminal Code or, in the alternative, conduct contrary to section 438(1)(b) of the Queensland Criminal Code.
You can therefore be satisfied that this criterion is satisfied.”
The departmental advice to the respondent constituted a proper basis for him being of the opinion that the requirement in s 16(2)(a)(ii) was satisfied.
The second ground is not made out.
Ground (c)
The applicant submitted that the respondent was exhorted by the departmental minute to sign the draft s 16 notice urgently because the applicant would become eligible for release from custody on 29 May 1997 if the notice had not been signed by that date. Because the respondent admits that he had regard to the contents of the minute in making the decision to sign the notice, the applicant submitted that the respondent had had regard to material which was irrelevant to the exercise of the discretion.
The principle to be applied where a challenge such as the present is made was stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (at 40) :-
“... In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49 - 50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at pp 757 - 758, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, at p 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”
The statutory scheme embodied in the Act prima facie makes provision for the release of persons on remand under s 15 after forty-five days if no s 16 notice has issued by that time. Because there is under the scheme a temporal relationship between the issue of the s 16 notice and the retention of a person on remand, it cannot be irrelevant to the exercise of the discretion to issue the notice to have regard to the fact that the applicant would be released from custody on 29 May 1997 if the notice was not signed. It was not a factor impliedly prohibited by the Act as a matter to be considered: Peko-Wallsend at 40. Nor is it one that no reasonable decisionmaker could reasonably have had regard to, that is, it is not manifestly unreasonable to have regard to the factor: Peko-Wallsend at 41.
The third ground is not made out.
Ground (d)
On his application for bail before a Magistrate on 12 and 13 May 1997 the applicant gave evidence that shortly before his release from prison in the UK he agreed to become a police informant to obtain evidence of corruption by prison officers in the prison. For this purpose he stated he was released on leave which leave was subsequently revoked. As a result of the revocation of his leave and his failure to return, he was listed as an absconder. He gave evidence that he refused to return for fear for his safety and to support his evidence he produced tapes of telephone conversations with UK police officers and prison officials.
On 13 May 1997 the applicant was granted bail. For such bail to be granted s 15(6) requires that there are “special circumstances justifying such remand” on bail. Additionally, the magistrate would have been concerned with the other usual issues arising on an application for bail, including the likelihood of the person absconding.
That the magistrate regarded the evidence before him as disclosing special circumstances justifying bail is not of itself a relevant circumstance to the exercise of discretion under s 16 and I did not understand the applicant’s counsel to contend that it was relevant. Rather, the complaint is that the substance of the evidence was not treated as relevant to the exercise of the s 16 discretion.
The substance of the evidence was contained in the letter of Witheriff Nyst of 20 May 1997 which was attachment B to the departmental minute. The respondent, on his own admissions, had regard to the letter and the Department’s response to the letter as contained in the minute. What weight was to be given to the material as a factor in the exercise of the discretion was a matter for the respondent, and in the absence of reasons it is impossible to say how much weight was given to it: Peko-Wallsend at 41 - 42.
The extradition process, if it proceeds to its fourth stage (s 22, determination to surrender) will raise for consideration discretionary grounds against surrender (s 22(3)(f)). That circumstance was before the respondent and the departmental minute said, in paragraph 17 :-
“17 The prison system in the UK is the responsibility of the Home Office Prison Department. It is appropriate that they provide advice regarding the safeguards which could be put in place in order to protect a prisoner who was in fear of violence whilst in custody. Should you need to decide in the future, under section 22 of the Act, whether to surrender Foster to the UK we will contact the Home Office to seek further information regarding Mr Foster’s safety. Suffice to say that, like every penal system in the world, there will always be a small number of vulnerable prisoners in the British system and we assume that the UK Prison Service has procedures in place to protect such prisoners.”
In the light of this advice and the fact that there will be, if necessary, another occasion to address the issue of prison safety due to the applicant’s previous co-operation with the authorities in the UK, there is no basis to conclude that the respondent failed to give this material any or any sufficient weight as a factor against giving the s 16 notice.
The fourth ground is not made out.
Ground (e)
The Attorney-General had before him Witheriff Nyst’s letter and a copy of the Courier Mail article in which the allegation appeared that extradition was being sought for purposes other than to try the applicant on the extradition charges. The allegation that the extradition request was being used for an ulterior purpose and one not sanctioned by the Act was a matter which was relevant to consider. That the Attorney-General did. Additionally the Department investigated the allegations with the Serious Fraud Office in the UK. Upon the basis of those inquiries the Department concluded, and advised the respondent that :-
“... The SFO refutes the allegation that the SFO is seeking to extradite Foster in order to use him as a witness in the corruption allegations with a view to then dropping the extradition charges against him. There is no prospect that the SFO will drop the proceedings in return for giving evidence against corrupt officials.”
The applicant cited no authority in support of the contention that the respondent was under a duty to further investigate the allegation. Whether or not the Attorney accepts the response of the UK authorities as relayed to him by his Department, the weight given to it or the need to further investigate will generally be a matter for the Attorney-General alone: Peko-Wallsend at 46.
The fifth ground fails.
Ground (f)
The applicant contended that he was denied natural justice and procedural fairness. It was submitted that he was entitled to an opportunity to respond to the Department’s advice to the Attorney-General on the allegations of abuse of process on the part of the UK authorities, to the Departmental response to the letter of Witheriff Nyst and generally the content of the minute. It was submitted that the applicant was entitled to be heard on these matters, had requested by his solicitor’s letter of 20 May 1997 to be heard on these matters, and had been denied a hearing before the s 16 notice was signed.
The letter of 20 May did not ask for a hearing or an opportunity to make further submissions. The letter, so far as is relevant, concluded :-
“In our respectful submission all of these matters must be closely investigated at this stage. We would be happy to provide whatever information or material you might require to assist in that investigation. To that end we would be happy to attend for a conference with you in relation to the matter, and to provide you with such evidence as you might require, if that were considered likely to be helpful and appropriate. We await your response in due course.”
The offer of further assistance, if required or thought to be useful, was not availed of by the respondent.
The applicant contends that the giving of a notice under s 16 of the Act directly affected the applicant’s rights, interest and status in an individual capacity. In consequence it was submitted, in the absence of a clear legislative intent to the contrary, the person making the decision to issue the s 16 notice was required to observe the requirements of natural justice or procedural fairness. In support of this submission the applicant relied upon the judgment of Deane J in Kioa v West (1985) 159 CLR 550 at 632 - 633 and the joint judgment of Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598.
The respondent submitted that, having regard to the statutory scheme and the nature of the extradition process under that scheme, the requirements of natural justice and procedural fairness were to be determined by reference to the process viewed in its entirety. So regarded, it was submitted, there was no obligation to provide the applicant with the substance of the Department’s comments in the minute to the Attorney-General, the Department’s response to Witheriff Nyst’s letter or the response to the UK authorities after inquiry as to the matters raised in Witheriff Nyst’s letter or to give the applicant a further opportunity to be heard in relation to them. This followed, it was submitted, because there was no requirement at the stage of the extradition process immediately before the issue of a s 16 notice to afford a hearing or to disclose the material available to the Attorney-General. It was submitted the process itself at a later stage enabled natural justice and procedural fairness to be extended to the applicant in respect of that material and other matters going to the exercise of the discretion to surrender. If there was such a duty as contended for prior to the exercise of the discretion under s 16, it was submitted by the respondent that the content of it was small and had been satisfied.
In Annetts v McCann, Mason CJ, Deane and McHugh JJ said (at 598) :-
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”
That passage was subsequently applied by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. Their Honours continued (at 576) :-
“Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness.”
The argument which is now put by the respondent was also advanced in Ainsworth. As to it, their Honours in their joint judgment said (at 578) :-
“It was argued on behalf of the Commission that the appellants had not been deprived of any entitlement to procedural fairness because the entitlement arose in an entire process which included the public hearings of the Parliamentary Committee. It was put that that entitlement had been or might yet be satisfied in the course of those hearings.
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’ South Australia v O’Shea (1987) 163 CLR 378, at p 389, per Mason CJ. The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines.”
Brennan J, in his separate reasons, agreed (at 592) with the thrust of the statement from Annetts v McCann. His Honour also came to the same conclusion on the submission that the report was but the first step in a longer process (at 593 - 594).
What is clear is that where decisions are made by two or more decisionmakers, those decisionmakers must be part of the same power structure and must be involved in the same decisionmaking process before the statement of principle in South Australia v O’Shea has any relevant operation: Ainsworth at 578, 593 - 594; Johns v Australian Securities Commission (1993) 178 CLR 408 at 473 - 474.
The first question is whether or not the exercise of the power under s 16 of the Act is regulated by the rules of natural justice. The answer to it commences with a consideration of the nature of the power: Ainsworth at 576.
The extradition process is commenced by the extradition country making an application to a magistrate under s 12 of the Act for the issue of a provisional arrest warrant and by making an extradition request to the Attorney-General. The decision to exercise or not to exercise the power under s 16 of the Act has consequences which affect the liberty of the person against whom extradition is sought. If a provisional warrant has been issued but not served, and the Attorney-General decides not to issue a notice under s 16(1), then he or she is obliged by notice in writing to direct a magistrate to cancel the warrant (s 12(3)). If, on the other hand, the provisional warrant has been executed by arrest of the person, and that person is on remand in accordance with s 15, a decision not to issue a notice under s 16 or a failure to issue a notice within forty-five days or such other applicable time limit, brings into operation s 17 of the Act and the procedures for release from remand.
A decision to issue a notice under s 16 has the consequence, where the provisional warrant is unexecuted, that upon arrest the person will be brought before a magistrate and placed on remand (s 15) and thence will be dealt with in accordance with s 18 (consent to surrender) or s 19 (determination of eligibility for surrender). Where a person is on remand under s 15, a decision to issue a notice under s 16 will result in that person remaining on remand pending completion of the next stage of the extradition process.
An exercise of the power under s 16 of the Act to issue a notice in accordance with the section operates adversely to the person named in the extradition request because it prejudices that person’s right to personal liberty and to be, and move, at large without constraint. This is so because the notice either allows the person to be arrested and held on remand or to continue to be held on remand. An exercise of the power also exposes the person to the extradition process and the possibility of surrender for extradition.
Prima facie the exercise of the power is one regulated by the rules of natural justice and the requirement of procedural fairness.
Does the Act by express words or necessary intendment exclude the rules as regards an exercise of the power under s 16? In my view it does not do so.
The nature of the decision under s 16 does not of itself indicate an intention to exclude the rules. The decision to issue a notice under s 16 is not reviewable by a magistrate under s 19, and, subject to the limited avenues available for control by the courts, is final: Kainhofer at 538. The decision operates as a necessary precondition to allow the next stage of the extradition process to occur. Although the extradition process involves a number of steps or stages before a final decision to surrender the person for extradition is made, each step is self-contained. The decision at each stage takes effect to either terminate the process or constitute the condition precedent required for the next stage to occur. Further, the issues at each stage are not the same, although there may be some overlap, eg, the existence or possible existence of extradition objections.
Nor does the existence of a right of appeal under s 21 from the magistrate’s order made under s 19 indicate that it was intended that the rules of natural justice were to be excluded from the exercise of the power under s 16. This follows because the power under s 16 is directed to the issue of whether the person is an “extraditable person” as defined in s 6 of the Act. The power under s 19 is directed to the question of the eligibility of that person for surrender. No question arises under s 19 as to whether the person is an extraditable person: Kainhofer at 539.
Although the statutory scheme with a series of steps leading to an ultimate decision to surrender for extradition or not may influence the content and operation of the rules at each stage of the process, the existence of stages in the process does of itself indicate that the rules of natural justice were to be excluded from all but the final stage (the s 22 decision), or limited to a s 19 hearing before a magistrate and any appeal under s 21 from orders made in that proceeding. Nor do I read the decision of the Full Court in Harris v Attorney-General of the Commonwealth as requiring a different result.
Once it is determined that the rules of natural justice do regulate the exercise of a power, the scope of the rules to be applied in relation to its exercise arises for consideration.
In Kioa v West, Mason J said (at 584 - 585) :-
“... What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.”
In Kioa v West, Brennan J said (at 615 - 616) :-
“An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case. Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected: see Commissioner of Police v Tanos (1958) 98 CLR 383, at p 396; Heatley (1977) 137 CLR, at pp 513 - 515; De Verteuil v Knaggs [1918] AC 557, at pp 560 - 561. In such cases, a peremptory exercise of the power is valid, though the power is conditioned on the observance of the principles of natural justice. It must therefore be accepted, as one commentator points out (G Johnson ‘Natural Justice and Legitimate Expectation in Australia’, Federal Law Review, vol 15 (1985) 39, at p 71) that ‘the contents of natural justice range from a full-blown trial into nothingness’. Yet Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109, at p 118, that there is an irreducible minimum required by the principles of natural justice, namely, that ‘the person concerned should have a reasonable opportunity of presenting his case’. If his Lordship’s view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.”
The function performed under s 16 of the Act is to condition the extradition process on the opinion of the Attorney-General in respect of three matters. The first is that the person against whom extradition is sought is an extraditable person (as defined in s 6) in relation to the extradition country: s 16(2)(a)(i). The second is that the conduct constituting the extradition offence satisfies the test of dual criminality: s 16(2)(a)(ii). The third is that no extradition objection exists: s 16(2)(b).
If those conditions are met, then the objective of the Act and the structure of the statutory scheme is that the process proceed to the next stage consequent upon the issue of the s 16 notice. A decision not to issue the notice for a reason other than non-satisfaction of one or more of the three conditions involves a discretionary decision to terminate the process which otherwise would proceed to the next stage. The residuary discretion in s 16 is only confined by the subject, scope and purpose of the Act: Peko-Wallsend at 41. The Act in s 22(3)(f) requires that the Attorney-General consider a person should be surrendered in relation to the qualifying extradition offence before a decision to surrender is made. This requirement opens up for consideration at the final stage of the extradition process all matters which are relevant to the exercise of a general discretion to refuse to surrender, notwithstanding that the person is otherwise an eligible person in respect of a qualifying extradition offence. It follows, in my view, that the residuary discretion under s 16 is limited to a consideration of factors relevant to an early termination of the extradition process in a peremptory way after issue of a provisional warrant, irrespective of whether or not an arrest has occurred. Ordinarily matters which would go to the exercise of the discretion under s 22(3)(f) are not relevant or properly reviewable at the s 16 stage of the process. Such an approach is, in my view, consistent with the reasoning in Harris v Attorney-General of the Commonwealth at 412 - 413.
The discretion which the Attorney-General exercises under s 16 is limited to the question of whether the extradition process should proceed. To the extent that there is any duty to make inquiry, that duty is limited to the three matters in respect of which the Attorney-General must hold an opinion before giving the notice. There is no duty to make inquiries as to matters which may go to a residual general discretion not to issue the notice. Nor, in my view, do the rules of natural justice or procedural fairness require that a magistrate or the Attorney-General disclose to the person against whom extradition is sought prior to exercising the powers under s 12 or s 16 that a request from an extradition country has been received and give that person an opportunity to respond. For to do so may render ineffective or frustrate the process: Johns v Australian Securities Commission at 431; Kioa v West at 615.
Where, as in the present case, representations are made not to any of the three statutory elements under s 16, but to the residual discretion, the rules of natural justice require that those submissions be received and considered in the context of whether the extradition process should be peremptorily terminated. However, the duty does not extend to conducting an inquiry as to the truth of any assertions of fact or to resolve finally at that stage any inconsistencies between versions of the facts put by the applicant and others.
Importantly, there is no evidence that the respondent has foreclosed those issues raised by the letter of 20 May 1997 against the applicant or that he will be denied an opportunity to make further submissions, if necessary, if an occasion arises for the Attorney-General to address the requirements of s 22(3)(f). Rather, as stated earlier in these reasons, there is no basis to conclude that the respondent did not accept the advice of his officers in paragraph 17 of the minute that further information as to the applicant’s safety in the UK prison system could be sought from the UK authorities if a decision was necessary under s 22 of the Act. All that can be said is that on the material before him the respondent was not persuaded to terminate the extradition process at this stage.
The content of the rules of natural justice and procedural fairness applicable to the exercise by the respondent of the power under s 16 in the circumstances of this particular case was to receive and consider the letter of 20 May 1997 and to deal fairly with it insofar as it was relevant to a peremptory termination of the extradition process without further consideration of whether the applicant was an eligible person in relation to a qualifying extradition offence for the purpose of s 22 of the Act. This occurred. Procedural fairness did not require that the respondent take the additional steps contended for by the applicant.
Under this head the applicant also contended that there was a reasonable apprehension of bias on the part of the decisionmaker which constituted a denial of procedural fairness. The applicant contended that material contained in a communication between two departmental officers showed that those advising the respondent were prejudiced against the applicant. The evidence shows, and I find, that the communication from Mr Singh to Mr McDougall as to the preparation of an answer to a possible parliamentary question (a PPQ) was not acted upon and had no bearing on Mr McDougall’s preparation of the minute to the respondent. There is no evidence that the communication ever came to the attention of any other of the departmental officers who signed the minute or to the attention of the respondent. Further, the substance of the communication is not reflected directly or indirectly in the terms of the minute.
There is no demonstrable basis to find a reasonable apprehension of bias against the applicant on the part of the respondent.
The sixth ground fails.
Ground (g)
For the reasons stated in relation to grounds (e) and (f) above, the Attorney-General was under no duty prior to exercising the power under s 16 to carry out an inquiry as to the applicant’s safety in the UK prison system if he was extradited to the UK to stand trial on the extradition offences. If there was a duty to investigate the bona fides of the prosecuting authorities in the UK in relation to their intention to prosecute the applicant for the extradition offences in the light of the letter of 20 May 1997 and the Courier Mail article, that duty has been discharged. The respondent was not required to resolve and finally determine inconsistencies in the contentions made on the applicant’s behalf and the advice received from the UK authorities by making further inquiries, or at all, as a condition of deciding to allow the extradition process to proceed to the next stage.
This ground fails.
Ground (h)
The applicant alleges that the respondent took into account misleading and/or untruthful assertions made in the departmental minute in exercising the discretion to issue the s 16 notice. The nature of the complaints are deposed to in paragraph 12 of the affidavit of Mr Nyst filed on 14 August 1997.
The complaints fall into four categories. The first category of complaint (paragraphs 12(a) and (b)) involves questions of the construction of paragraphs of the departmental minute and whether they are misleading. The second category (paragraphs 12(c), (d), (g), (h), (i) and (j)) involves allegations that certain paragraphs in the minute were false or misleading because the applicant asserts to the contrary and has instructed his solicitor that the facts are otherwise. The third category (paragraphs 12(e) and (f)) involves allegations that certain paragraphs which purported to summarise the letter of 20 May 1997 were misleading in the way the matter was summarised. The final category (paragraphs 12(k) and (l)) alleges that certain paragraphs are factually and/or legally incorrect.
I have considered the complaints in the first category. The paragraphs do not bear the construction contended for by the applicant.
The complaints in the second category involve disputed questions of fact in relation to matters which are irrelevant to a proper exercise of the discretion under s 16. Indeed, some of the material relied upon by the applicant is contrary to the factual assertions he makes through his solicitor.
The complaints in the third category, even if made out, carry no weight when it is remembered that the actual letter of 20 May 1997 was before the respondent as an attachment to the minute and on the respondent’s admission was considered by him. The letter itself corrected any inaccuracy in the summary.
The fourth category of complaint involves two allegations.
The first is that the contention that the issues before the magistrate on the application for bail were different to those which the respondent had to consider under s 16 of the Act was incorrect. The issues before the magistrate involved the question, amongst others, of the likelihood of the applicant absconding if given bail pending a determination under the Act. It also involved the question of whether there were “special circumstances” justifying remand on bail (s 15(6)). The evidence led before the magistrate was relevant to those issues. The minute was correct in stating that “... the matters raised in the bail hearing were not addressing the issues that you must consider now in relation to the section 16 Notice”. In any event, the subject of the applicant’s fear for his safety if he was returned to the prison system in the UK which was aired before the magistrate was in fact dealt with specifically in the departmental minute as it was in Witheriff Nyst’s letter of 20 May 1997.
The second allegation in the fourth category is that the statement set out earlier in these reasons in Attachment A to the minute that the Commonwealth Director of Public Prosecutions has advised that the applicant’s alleged conduct would have constituted extradition offences in relation to Australia, is false. The falsity is alleged because, it was submitted, a letter from the Commonwealth Director of Public Prosecutions to the Attorney-General’s Department of 23 May 1997 does not, and could not, express that opinion.
On 22 May 1997 Mr McDougall sent a facsimile to Ms Carrigan of the Office of the Commonwealth Director of Public Prosecutions in Brisbane. It read :-
“Please find following a copy of the United Kingdom third person diplomatic note requesting the extradition of Foster.
A copy of the 9 volume extradition request and supporting documents has been delivered at about 4:20 this afternoon to your Central Office here in Canberra. I understand that your Central Office will send the Foster UK extradition documents to you overnight and that they will be delivered to you tomorrow morning.
For the purposes of seeking the issuance of the section 16 notice to the magistrate from the Attorney-General please can you provide me with urgent advice as to whether you believe dual criminality may be established for each offence for which the UK seek Foster’s extradition.”
On 23 May 1997 Ms Carrigan responded by facsimile in the following terms :-
“Dear Sir
PETER CLARENCE FOSTER
Martin Corkery and I have now perused the charges against Foster with a view to establishing the requirement of ‘dual criminality’. There are two conspiracy to defraud charges, one conspiracy to use false instruments charge and three use of false instrument charges.
In considering the question of dual criminality, it must be taken into account that Queensland is a codified State, and thus conspiracy charges are only available in limited circumstances within the Code. There is, in fact, a similar conspiracy to defraud charge within the Code but there is no equivalent charge of conspiracy to use false instruments.
I have set out below the nature of the alleged offences and detailed the likely corresponding Queensland or Commonwealth offences.
Conspiracy to defraud at common law
Conspiracy to defraud - Section 430(1) Queensland Criminal Code: Penalty 7 years imprisonment.
Conspiracy to use false instruments
If, in fact, the nature of the offence is truly a conspiracy, then the more appropriate like offence may be conspiracy to defraud as referred to above. If, in fact, the offence proves to be of a more substantive nature, then certain provisions will apply in relation to use of false instruments, as set out below.
Use of false instruments
· Section 438(1)(b) of the Criminal Code of Queensland. This section would be applicable if Foster were found to be ‘a promoter, director, officer or auditor’ of the stated company. From the evidence contained in the affidavit of Lesley Griffiths, it would appear that Foster was not appointed to the position of director but could be said to be involved in the management of the corporation. The penalty is 10 years imprisonment.
· Section 441 of the Criminal Code of Queensland relates to an alteration, falsification, mutilation or destruction by a clerk or servant of a corporation of any books etc with intention to defraud. This would only apply if Foster did not fall within the definition stated in Section 438(1). The penalty is 10 years imprisonment.
· Section 596 of the Corporations Law of Queensland relates to an offence by an officer of a company, who by false pretence or any other fraud, induces a person to give credit to the company. The penalty is 2 years imprisonment.
An ‘officer of a corporation’ is defined at Section 82A of the Corporations Law. The definition includes an executive officer or an employer of the body or entity.
An “executive officer” is defined in Section 9 of the Act to be a person, by whatever name called and whether or not a director of the body or entity, who is concerned, or takes part in the management of the body or entity. It would be argued that Foster would fall within that definition.
· Section 489 of the Queensland Criminal Code - Uttering false documents. The penalty is 3 years imprisonment.
The provision allows for circumstances of aggravation which result in a penalty of 14 years imprisonment. Circumstances of aggravation as set out in the three charges would arguably fall within subsections (2)(h) and (i) of Section 488 of the Code.
· Section 427 of the Queensland Criminal Code: Obtaining goods or credit by false pretence or wilfully false promise.
The penalty is 5 years imprisonment.
· Section 437 of the Queensland Criminal Code: Directors and officers of corporations falsifying books or accounts.
The penalty is 10 years imprisonment.
I have also enclosed copies of the relevant portions of the legislation referred to for your assistance. Please do not hesitate to contact me if you require any further details.”
The submission on behalf of the applicant is that the letter of Ms Carrigan does no more than compare criminal offences of the country seeking extradition with possible criminal offences available under Queensland law without any discussion of the conduct of the applicant in relation to those offences. It was further submitted that Ms Carrigan and Mr Corkery had only had regard to the charges laid against the applicant and not his alleged conduct giving rise to the extradition offence which was the application on their part of an incorrect test of dual criminality.
In my view it is not possible to find that the author of the letter did not have regard to the conduct of the applicant before making the communication contained in the letter. The transmission from Mr McDougall supports a conclusion that Ms Carrigan and Mr Corkery had available to them the nine volume extradition request and supporting documents. Further, the letter, when referring to the affidavit of Lesley Griffith, shows that reference was made to the conduct of the applicant as either a director or person concerned with the management of a corporation and such conduct giving rise to a charge under s 438(1)(b) of the Queensland Criminal Code or under s 441, if the factual requirement of involvement in the management of the company was not made out. The reference to having perused the charges with a view to establishing the requirement of dual criminality does not in context mean that the charges were the only material referred to. In fact, the charges in the present case included particulars of the factual elements of the charge, being the conduct of the applicant alleged to constitute commission of the offence charged. The test of dual criminality does not require an examination of all the evidence relating to the conduct of the applicant or all of the conduct engaged in by the applicant. It is only such conduct as constitutes the elements of the offence charged which is relevant to a test of dual criminality.
The applicant finally submitted that, as a matter of construction, the letter from Ms Carrigan does not state that dual criminality, in the opinion of the writer, had been established. Rather, it was submitted it only stated sections of the Queensland Criminal Code which in Ms Carrigan’s view had some similarity to the UK charges given to her.
In the context of the request from Mr McDougall and the nature of the response, it is my view that the writer intended that the letter expressed her view that in relation to the UK charges against the applicant, the requirement of dual criminality was met by reference to the UK charge and the likely corresponding Queensland or Commonwealth offence to which she refers in the letter. I am also of the view that the letter was so understood by Mr McDougall and acted upon accordingly. The advice to the respondent in Attachment A set out earlier specifies the sections of the Criminal Code and the Corporations Law of Queensland discussed by Ms Carrigan in her letter.
I am not satisfied that the advice given by the Department to the respondent on the issue of dual criminality was false or misleading.
The final ground also fails.
Conclusion
The applicant has failed to make out any ground for relief. The application is dismissed with costs to follow the event.
I certify that this and the preceding twenty-seven (27) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper
Associate:
Dated: 14 November 1997
Counsel for the Applicant: WJ Cuthbert Solicitor for the Applicant: Witheriff Nyst Counsel for the Respondent: SL Doyle SC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 November 1997 Date of Judgment: 14 November 1997
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