Hicks, D.L. v Martin, I - [1991] FCA 423

Re: DAVID LLEWELYN HICKS
And: IAN MARTIN and DIRECTOR OF PUBLIC PROSECUTIONS
No. WA G45 of 1991
FED No. 423
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Lee(1) and Olney(2) JJ.

CATCHWORDS

Extradition - surrender to New Zealand - appeal from decision confirming magistrate's order to surrender - whether the judge should have been satisfied that surrender would be unjust, oppressive or too severe a punishment.

Words and Phrases - "unjust, oppressive or too severe a punishment".

Crimes Act (NZ) ss.222, 227A

Extradition Act 1988 ss.5, 28, 32 (Pt.III), 34 (Pt.III), 35 (Pt.III); sub-ss.34(1), 34(2), 35(1), 35(3); paras.34(1)(c) and (d)

Extradition (Commonwealth Countries) Act 1966 ss.4, 11, 16 (Div 2 Pt.II), 17, 27 (Pt.III), 28

Extradition (Foreign States) Act 1966

Extradition (Repeal and Consequential Provisions) Act 1988

Fugitive Offenders Act 1881 (U.K.) ss.2, 5, 10, 34

Fugitive Offenders Act 1967 (U.K.)

Service and Execution of Process Act 1901 sub-s.18(6)

Aston v Irvine (1955) 92 CLR 353

Bryan v Preston (1982-3) 44 ALR 217

Re H. (a prisoner) (1971) NZLR 982

Kakis v Republic of Cyprus (1978) 1 WLR 779

Ex parte Maher (1983) 2 Qd.R. 695

Perry v Lean (1985) 63 ALR 407

White v Cassidy (1979) 40 FLR 249

HEARING

PERTH

#DATE 24:7:1991

Counsel for Appellant: J. Courtis
instructed by: Claudio Russo Shaw

Counsel for Second Respondent: S.W. O'Sullivan
instructed by: Director of Public Prosecutions

Solicitor for First Respondent: The Crown Solicitor

ORDER

The appeal be dismissed.

The appellant pay the second respondent's costs of the appeal.

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

JUDGE1

We have had the advantage of reading the reasons of Olney J. with which we agree subject to the following comments.

The Extradition Act 1988 ("the Act") replaced the Extradition (Commonwealth Countries) Act 1966 and the Extradition (Foreign States) Act 1966 each of which was repealed by the Extradition (Repeal and Consequential Provisions) Act 1988. Prior to the introduction of the Extradition (Commonwealth Countries) Act 1966, Australian law relating to extradition to and from other dominions was governed by the Imperial Act, Fugitive Offenders Act 1881 (U.K.).
By ss.2 and 34 of the Fugitive Offenders Act 1881 (U.K.) a person accused of having committed an offence or a person convicted of an offence and unlawfully at large before the expiration of a sentence could be apprehended and returned to the dominion from which that person was a fugitive.
Under s.5 of the Fugitive Offenders Act 1881 (U.K.) an apprehended fugitive was required to be brought before a magistrate who was required to hear the case in the same manner as if the fugitive were charged with an offence committed within the magistrate's jurisdiction, and if the evidence produced raised a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, the magistrate was required to commit the fugitive to prison to await return.
Section 10 of the Fugitive Offenders Act 1881 (U.K.)…

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 Hicks, D.L. v Martin, I

Details

AGLC: Hicks, D.L. v Martin, I [1991] FCA 423
Case: [1991] FCA 423
Decision Date: 24 JULY 1991

CaseChat Overview and Summary

The appeal in Hicks v Martin concerns the extradition of the appellant, David Hicks, to New Zealand. Hicks contested the decision of a Federal Magistrate that he be surrendered to New Zealand, an order that was confirmed by a Federal Court judge. The primary legal issue was whether the judge should have considered whether the extradition would be unjust, oppressive or too severe a punishment.

The court considered the relevant legal framework and the discretion of the judge in extradition matters. It held that the judge was not required to weigh the severity of the punishment in the context of the extradition order, as the decision was primarily concerned with the adherence to the extradition treaty between Australia and New Zealand. The court further noted that the considerations of justice or severity of punishment were not within the scope of judicial review in such matters, emphasising the importance of treaty obligations.

Consequently, the appeal was dismissed. The appellant was ordered to pay the second respondent's costs of the appeal, reflecting the court's view that the appeal was without merit. The settlement and entry of orders are governed by Order 36 of the Federal Court Rules, ensuring a formal conclusion to the proceedings.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the second respondent's costs of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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