Gardner v Chief Magistrate Walker - [2023] ACTSC 96

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Gardner v Chief Magistrate Walker

Citation:

[2023] ACTSC 96

Hearing Date:

20 April 2023

Decision Date:

20 April 2023

Before:

McCallum CJ

Decision:

(1)	Stay the extradition order of Chief Magistrate Walker

until further order.

(2) Stand the matter over to Friday 19 May 2023 at
9:30am before McCallum CJ.

Catchwords:	COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – Inferior courts – Judicial review of extradition order by a magistrate – application to quash extradition order – whether
arrest warrant is invalid because it does not disclose jurisdiction
on its face – whether order made by the magistrate was infected
by jurisdictional error because of the invalidity of the arrest
warrant – whether the supervisory jurisdiction of the Supreme
Court is excluded by the Service and Execution Process Act 1992 (Cth)
Legislation Cited:	Bail Act 1992 (ACT) ss 8A, 20B Constitution (Cth) s 109 Court Procedures Act 2004 (ACT) s 27 Court Procedures Rules 2006 (ACT) rr 3550, 3557 Crimes (Sentence Administration) Act 2005 (ACT) s 107 Crimes Act 1900 (ACT) s 25 Criminal Procedure Act 1986 (NSW) ss 54, 181, 236 Service and Execution of Process Act 1992 (Cth) ss 83, 86
Supreme Court Act 1933 (ACT) s 34B
Cases Cited:	Burns v Romeo [2018] SASC 34; 331 FLR 270
Kirk v Industrial Relations Commission of New South Wales
[2010] HCA 1; 239 CLR 531 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v Tillett, ex parte Newton (1969) 14 FLR 101 Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305; 263 FLR 263 Zeltner v Deputy Registrar of the Supreme Court (No 2) [2022] ACTCA 30
Parties:	Jaiden Dale Gardner (Plaintiff) Chief Magistrate Lorraine Walker (First Defendant) The Commissioner of Police, New South Wales Police Force (Second Defendant) Attorney-General of the Australian Capital Territory (Intervenor)
Representation:	Counsel
P Edmonds (Plaintiff) K Zielinski (Second Defendant)
M Hassall (Intervenor)
Solicitors
Paul Edmonds & Associates (Plaintiff)
Crown Solicitor’s Office (NSW) (Second Defendant)
ACT Government Solicitor (Intervenor)
File Number:	SC 141 of 2023
McCALLUM CJ:

1.       Jaiden Gardner is before the Court today in two sets of proceedings. First, on 6
December 2022, he was committed to this Court to be dealt with for breach of his good
behaviour obligations entered into on 12 October 2020 in accordance with a sentence
imposed by Elkaim J. I will refer to those proceedings as the breach proceedings.
2.       Those proceedings first came before me on 27 February 2023. At that time, I
foreshadowed dealing with the breach in a manner that would include a form of
supervision with a residential rehabilitation condition. I adjourned the proceedings to
enable Mr Gardner’s solicitor, Mr Edmonds, to attempt to obtain a placement in a suitable
program.
3.       In the meantime, it was ascertained that an extradition order had been made at an earlier
point in time which, if executed at the time of Mr Gardner’s release from…

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 Gardner v Chief Magistrate Walker

Details

AGLC: Gardner v Chief Magistrate Walker [2023] ACTSC 96
Case: [2023] ACTSC 96
Decision Date

CaseChat Overview and Summary

In the matter of Gardner v Chief Magistrate Walker, the plaintiff, Jaiden Dale Gardner, sought to challenge an extradition order made by Chief Magistrate Lorraine Walker. The defendant, the Commissioner of Police, New South Wales Police Force, and the Attorney-General of the Australian Capital Territory intervened in the proceedings. The central issue before the court was whether the extradition order made by the Chief Magistrate was valid given the alleged invalidity of the New South Wales arrest warrant on which it was based. The court also had to determine if the Service and Execution Process Act 1992 (Cth) excluded the supervisory jurisdiction of the Supreme Court in reviewing the Chief Magistrate's decision.

The plaintiff argued that the New South Wales warrant was invalid because it did not disclose on its face that the issuing officer was satisfied that there were substantial reasons to issue the warrant, as required by the Criminal Procedure Act 1986 (NSW). The court considered whether the warrant's alleged invalidity rendered the Chief Magistrate's extradition order erroneous or if it amounted to jurisdictional error. The defendants contended that the Service and Execution of Process Act 1992 (Cth) provided an exclusive regime for review and that the warrant did not need to record the state of satisfaction on its face.

The court found that while the Service and Execution of Process Act 1992 (Cth) provided a specific regime for review, the warrant's alleged invalidity raised a prima facie case for jurisdictional error. The court decided that it was not appropriate to determine the issue on an urgent basis without allowing the parties, particularly the state of New South Wales, the opportunity to fully address the matter. Consequently, the court stayed the extradition order and adjourned the matter to allow for further consideration.

The final orders of the court were to stay the extradition order made by the Chief Magistrate on 7 March 2022 until further order and to stand the matter over to 19 May 2023 at 9:30 am before McCallum CJ for further consideration.

Orders