Hijazi v Commissioner of Police (NSW)

[2021] NSWSC 515

Supreme Court

New South Wales

Medium Neutral Citation:

Hijazi v Commissioner of Police (NSW) [2021] NSWSC 515

Hearing dates:

6 May 2021

Date of orders:

7 May 2021

Decision date:

07 May 2021

Jurisdiction:

Common Law

Before:

Duty Judge – Wilson J

Decision:

(1) Pursuant to s 86(8) Service and Execution of Process Act 1992 (Cth), the order made by Quinn LCM on 4 May 2021 under s 83(8)(b) Service and Execution of Process Act 1992 (Cth) in relation to the plaintiff is revoked.

(2) Pursuant to s 83(8)(b) Service and Execution of Process Act 1992 (Cth), the plaintiff is to be taken in the custody of Detective Sergeant Troy Kendall and Detective Senior Constable Craig Leahy of the Western Australia Police to Perth Magistrates’ Court, Perth, Western Australia.

(3) Pursuant to s 83(11) Service and Execution of Process Act 1992 (Cth), order 2 is suspended until 4 pm on Friday, 28 May 2021.

(4) Pursuant to s 83(12)(b) Service and Execution of Process Act 1992 (Cth), the plaintiff is remanded into the custody of New South Wales Corrective Services until the end of the period provided for by order 3.

(5) The parties have liberty to restore the proceedings by email to the associate and tipstaff to Wilson J on 24 hours’ notice.

(6) The Registrar is directed to add the Western Australian Commissioner of Police as a party to the proceedings so as to give access to the Court file and electronic portal.

Catchwords:

DUTY JUDGE – urgent application to set aside extradition warrant – accused to stand trial in New South Wales and wanted for offences in Western Australia – consideration of form of extradition warrant – question of validity of warrant – where any discretion pursuant to s 83 Service and Execution of Process Act 1992 (Cth) – consideration of interests of justice to have accused removed from the State the week before trial is due to commence – orders made – applicant to remain in NSW custody

Legislation Cited:

Service and Execution of Process Act 1992 (Cth)

Criminal Procedure Act2004 (WA)

Criminal Procedure Regulations 2005 (WA)

Category:

Principal judgment

Parties:

Mohamad Hijazi (Plaintiff)
Commissioner of Police (NSW) (Defendant)
Commissioner of Police (WA) (Intervener)

Representation:

Counsel:
P Lange (Plaintiff)
D New (Defendant)
R Coffey (Commissioner of Police (WA))

Solicitors:
Kings Law Group (Plaintiff)
New South Wales Police (Defendant)
Western Australian Police (Commissioner of Police (WA))

File Number(s):

2021/00125193

Publication restriction:

Nil

EX TEMPORE Judgment

1. HER HONOUR: Before the Court in the Duty List is the matter of Mohammed Hijazi v the Commissioner of Police (NSW). The summons was filed with leave in Court yesterday, 5 May 2021, on which date the Court made orders in the nature of what might be regarded as holding orders. That is, orders which would preserve the status quo pending some further submissions and deliberations being made. The matter has been returned to the list today for those further submissions and further deliberation.

2. The summons has been filed by Mohammed Hijazi. It is supported by an affidavit of Ryan Kadadi sworn on 5 May 2021. Rayan Kadadi annexes to that affidavit details concerning a trial listing which the applicant currently faces at the Campbelltown District Court this coming Monday, 8 May. It sets out some matters connected with the priority of the trial listing. It produces, as annexure B, a copy of the arrest warrant for Mr Hijazi which was issued in Western Australia together with the Statement of Material Facts which was produced by Western Australian Police relating to the offences for which the applicant's extradition is sought.

3. The Court has been assisted by submissions from Ms New, counsel for the Commissioner for the New South Wales Police who is formally the defendant to the summons, and, further, by evidence and submissions adduced on behalf of the Commissioner of Police Western Australia. Yesterday, the Court granted leave to the Western Australian Commissioner to intervene as the Commissioner for that State is clearly an interested party and contribution from the Commissioner would be of assistance to the Court.

4. This afternoon, the Western Australian Commissioner has read and relied upon an affidavit of Detective Senior Constable Craig Leahy sworn today. Detective Senior Constable Leahy is an officer with the Western Australian Police holding the rank of detective senior constable. He is based with the Organised Crime Squad in Perth, and he deposes as to the nature of the criminal proceedings against the applicant in that State and with respect to steps taken by the Western Australian Police to secure an extradition warrant for the apprehension of the applicant and his extradition to Western Australia to face criminal proceedings in that jurisdiction. The Western Australian Commissioner has also provided, very helpfully, submissions on the summons and the orders that it is submitted should be made.

5. The summons brought by the applicant seeks orders for a review, pursuant to section 86 of the Commonwealth Service and Execution of Process Act 1992, of orders made by the Local Court of New South Wales on 4 May 2021 pursuant to section 83 of that Act. On that date, Magistrate Quinn made an order pursuant to section 83(8)(b) which in effect permitted the applicant to be remanded in custody and taken to Western Australia to face criminal proceedings in that State. Her Honour suspended those orders for a period of 48 hours to permit review in this Court, and the review has taken place before me in the Duty List.

6. It is the plaintiff's contention that; firstly, the warrant for the applicant's apprehension is invalid; and, secondly, or in the alternative, that notwithstanding the validity or otherwise of the warrant, there are reasons why, in the interests of justice, the magistrate's orders ought be revoked or varied to the extent that the applicant would be permitted to remain in New South Wales until such time as he has faced trial in this jurisdiction.

7. The evidence of the applicant's solicitor is that that trial is listed at 10.00am on Monday, 8 May, before the Campbelltown District Court. At present, the matter is listed as a jury trial, although there is an outstanding application to the District Court for the trial to proceed by way of judge alone. His Honour Judge Coleman, as I understand it from Mr Lange, counsel for the applicant, is part-heard in determining the judge alone application with determination of the application having been suspended pending the proceedings relating to the extradition.

8. If the matter proceeds as a judge alone trial, a judge has already been allocated to hear the matter and, on the basis of the evidence produced by the applicant, it seems that it is the priority trial for Campbelltown District Court on Monday, which in the ordinary course would mean, failing some unforeseen eventuality, that the trial will commence at or soon after 10.00am on Monday and would thereafter proceed until verdict.

9. The applicant is to be tried in this jurisdiction for serious indictable offences and, ordinarily, there would be an expectation that his trial will proceed.

10. The applicant asserts, firstly, that the warrant of extradition is invalid. A number of points are raised in that regard as to the invalidity of the warrant on its face. The Court was invited, during the proceedings yesterday, to consider what has been produced as annexure B to the affidavit of Ryan Kadadi to determine whether, on its face, the warrant is valid.

11. It was pointed out by counsel for the applicant that there is no notation as against the court number or the registry location for the warrant; there is no clear description of the nature of the charges, there being something of a shorthand description of the offences only endorsed upon the face of the warrant; and, it is said importantly, there is no notice of the prosecution case annexed to the copy of the warrant provided to the applicant. It is a copy of that copy, in effect, that is annexure B to the affidavit of Mr Kadadi.

12. The Court has been referred to the provisions of the Western Australian Criminal Procedure Act2004 and the Western Australian Criminal Procedure Regulations 2005, as to the ordinary requirements for warrants of apprehension, and it is submitted that there has been non-compliance with some of the provisions of that Act and those Regulations such that the warrant is invalid.

13. The Court has been referred to section 31 of the Western Australian Criminal Procedure Act 2004 which provides:

31. Warrant for accused’s arrest, contents etc.

(1) An arrest warrant for an accused must —

(a) be in a prescribed form; and

(b) if issued in the first instance, form part of or be attached securely to a copy of the prosecution notice to which it relates; […]

14. The New South Wales Commissioner for Police makes no submissions with respect to the question of the validity of the warrant so I turn to those made by the Commissioner for Western Australian Police.

15. The Commissioner relies upon the evidence of Detective Senior Constable Leahy. In his affidavit, the officer has provided evidence as to the procedure that was followed on 23 April 2021, the date on which Western Australian Police made application to the Chief Magistrate of Western Australia for an arrest warrant for the applicant. Detective Leahy provided the Chief Magistrate with an arrest warrant template form recording the name, date of birth and known address of the applicant. Further, a general form of affidavit that he had sworn as at that date and, finally, a copy of the Prosecution Notice which is some 14 pages in length and which is annexed to Detective Senior Constable Leahy's affidavit.

16. The officer deposes (and his evidence is not, as one would expect, challenged) that he observed the Chief Magistrate for Western Australia to make a notation on the general affidavit. He observed the Chief Magistrate to make an endorsement on the arrest warrant to the effect of a shorthand notation of the nature of the charges for which the applicant is wanted in Western Australia; being five counts of supplying a prohibited drug, and two counts of laundering property. Finally, the officer observed the Chief Magistrate to sign the arrest warrant, and record his name and the date.

17. A copy of the warrant is produced by the officer as annexure A to his affidavit. It is broadly in similar terms, apart from the annexure annotations to that produced by the applicant. It notes that the warrant was issued by a magistrate from Western Australia on 23 April 2021.

18. The general form of affidavit setting out details of the allegations raised against the applicant and the Prosecution Notice all formed part of the material placed before the Chief Magistrate in Western Australia and, further, formed part of the material which was then returned by the Chief Magistrate to Detective Senior Constable Leahy, after the endorsement of the warrant.

19. Dealing firstly on the basis of all of that evidence with the contention that the warrant is invalid, it is important to remember that the warrant which has to be assessed for its validity or otherwise is not the copy which was given to the applicant when he was arrested. It is the original warrant which was produced to the Local Court upon the applicant's apprehension. There is no evidence before this Court that the warrant as produced to the Local Court Magistrate was not a warrant in proper form. Significantly, there is no evidence that the Prosecution Notice which was clearly with the warrant when endorsed by the Western Australian Magistrate was not with the warrant when it was produced in the Local Court upon the applicant's apprehension. There is evidence that there was no Prosecution Notice with the copy that was provided to the applicant but that is not, in my opinion, the same thing.

20. I accept the evidence of Detective Senior Constable Leahy that the required documentation accompanied the warrant when the Chief Magistrate of Western Australia authorised it and granted the warrant. It would seem from the officer's evidence that the accompanying documentation, whilst it may not have been stapled at all times with a staple or pinned together in some other fashion, was at all times with the warrant. It was with the warrant when it was scanned into the Central Warrant Index in Western Australia; and was with the warrant when the scanned copy was sent to New South Wales Police so that it could be executed and the applicant arrested.

21. In so far as there is a complaint about the failure to affix the documents to the warrant, I accept the submissions of the Western Australian Police Commissioner that that does not require evidence of the securing of the documents or the pieces of paper with a staple or some other mechanism to joining them. It simply requires that the documents be together and form part of a whole.

22. On the evidence adduced by the Western Australian Commissioner for Police, there is no reason for me to conclude other than that the original warrant endorsed by the Chief Magistrate; taken by Detective Senior Constable Leahy to the Central Warrant Index; scanned into that Index; conveyed to Detective Shaun Johnson of the New South Wales Police; and executed upon the applicant, was anything other than a warrant with all necessary documentation forming part of it.

23. That leaves only the purported invalidity on the face of the warrant because of the absence of matters such as a jurisdiction, full details of charges, and so on. With respect to that complaint, I accept the submissions of the Western Australian Commissioner of Police that those are complaints of form over substance. Having concluded that the Prosecution Notice was with the original warrant, as scanned and transmitted to New South Wales, there is no reason, in my view, to regard the warrant as invalid because for example it had only a shorthand notation, of the charges for which the applicant's arrest was sought and defects of a similar administrative nature. The Prosecution Notice gave full details of the nature of the allegations against the applicant, and there could have been no misunderstanding as to the nature of those charges. It would have been open to the applicant to ask, when before the Local Court to inspect the warrant and accompanying documentation, and that no doubt would have been made available.

24. This being a rehearing, in any event the applicant now has (if he had not seen it before) full details of all of the charges as outlined in the Prosecution Notice and, in my opinion, there is no basis to conclude that he could have been unaware of the nature of the allegations against him.

25. In short, I have concluded that the warrant is valid and its execution in New South Wales is, accordingly, valid.

26. That brings the Court to the second leg of the arguments, and that is, as to whether or not there is a reason for delaying or otherwise suspending the execution of the warrant.

27. The New South Wales Commissioner is essentially neutral, although I have had regard to the helpful submissions provided by Ms New.

28. Mr Lange for the applicant submits that there are grounds for the Court to exercise a discretion in terms of the orders to be made and, in particular, the applicant's pending trial in the District Court in New South Wales on indictable offences is a sufficient basis to adjourn or otherwise suspend the immediate execution of the warrant.

29. Mr Coffey, counsel for the Western Australian Commissioner, refers the Court to section 83 of the Service and Execution of Process Act and to a volume of decisions of other courts, including Supreme Courts of other jurisdictions, to submit that there is no discretion in section 83 of the Service and Execution of Process Act; and, once section 83(8) is established and the warrant is produced, the magistrate or, in this instance, this Court, must order; either that the person be remanded on bail to appear at the relevant place and time; or that the person be taken, in custody, to a specified place, being the place of issue of the warrant.

30. I have been referred to the decisions that I have, in global form mentioned and, in the very short time available, I have considered as much of those decisions as I could. I accept that section 83, as I think every Court that has considered one of these matters and decision of which I have been referred to, has found, that there is no discretion in the Court as to whether or not an order under section 83 is made. The nature of the order will vary in terms of whether the warrant is produced or not produced, but there is no discretion and an order must be made.

31. The real issue of contention between the applicant and the Western Australian Commissioner is whether or not the Court has any powers to take into account what might be ordinarily regarded as discretionary features. The Western Australian Commissioner argues that there is no power for the Court to have regard to discretionary matters. The applicant contends that there is such power. The New South Wales Commissioner, simply seeking to assist the Court, submits that there must be work for section 83(9) and (11) to do, and the existence of those subsections implies that there is some power for the Court to have regard to matters extraneous to the warrant itself in making orders under the legislation.

32. Again, in the very short amount of time available to both the parties and to the Court, it has not been possible for any of us individually to locate an authority directly on point which might assist the Court in determining that aspect of the matter. One then falls back on ordinary principles of statutory construction; such principles are based upon jurisprudence to the effect that the text of the statute is the starting point and the text of the statute is the primary consideration.

33. I have been referred to the Second Reading Speech, and that is something that of course the Court can have regard to, but, ordinarily, extraneous materials only become relevant in statutory construction when there is some uncertainty or lack of clarity in the legislation.

34. The relevant provisions of the Service and Execution of Process Act are sections 83(9), 83(11), 83(12) and, perhaps to some lesser extent, 83(14). The Court concludes, as the learned magistrate did, that the warrant or a copy of the warrant is produced.

35. Section 83(8) makes mandatory, by use of the language "must order", either that the person be remanded on bail on condition that the person appear at such time and at the place of issue of the warrant as the magistrate specifies; or that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place being the place of the issue of the warrant.

36. The Court has been referred by the Western Australian Commissioner to authority which speaks of the mandatory nature of that provision, that the Court must make an order. I agree that it is mandatory, but, in common with counsel for the New South Wales Police, I consider that the mandatory nature of that language applies to the order which the Court must make pursuant to subsection (8); It does not apply to prevent the Court from having regard to other considerations relevant to the question of whether other powers under section 83 should be exercised.

37. If the Court could not consider matters extraneous to the warrant and the execution of the warrant, one wonders what the purpose would be of subsection (9), which permits the order to be made subject to specified conditions. If the Court could not have regard to matters extraneous to the warrant, one wonders what would be the purpose of subsection (11), which empowers the Court to suspend an order for a specified period. To a lesser extent, although in a similar vein, one wonders what the purpose would be of permitting an adjournment. It may be that provision is confined to circumstances where it is genuinely necessary to adjourn proceedings prior to making a determination under subsection (8), and it may be that that provision can be set aside, but it is somewhat elusive to me to understand what the purpose of subsections (9) and (11) might be if it is not to permit the Court to have regard to other features and make orders appropriately.

14. Here, there is the clash of what might be referred to as two sets of interests of justice. It is no doubt, and I accept, in the interests of justice for the jurisdiction of Western Australia to secure the presence in that jurisdiction of a person against whom very serious charges are outstanding so as to be in a position to put those charges before a Court and have them determined expeditiously. That is generally a feature for all jurisdictions, and it is generally agreed I think by all that speedy justice is something which is to be desired. However, the interests of justice in New South Wales would be that the applicant remain in this jurisdiction to face the trial that is outstanding against him. In this jurisdiction, too, he faces serious charges which if prosecution led to conviction, it would be expected that there be a custodial sentence.

15. The list date for the trial on 8 May is the third time this trial has been listed, which of itself suggests that there has already been significant delay in bringing this matter to trial. Significant steps have been taken by the parties. The Court is advised, on evidence, that there is a Crown Prosecutor briefed for trial for the Crown. Queen's Counsel and Junior Counsel have been briefed for the applicant. Steps have been taken to secure the attendance of witnesses, including an expert witness who is to be called for the applicant. A trial Court is available, and a trial judge has been allocated. There is every expectation in New South Wales that the applicant will face his trial.

16. If the Court simply endorses or otherwise allows to remain in its present form the order of the magistrate, the applicant will no doubt be put on a plane for Perth sometime today to leave the jurisdiction and he would then be in breach of his bail and not able to attend Court at Campbelltown on Monday. His trial date would be vacated, witnesses would have had time, money and resources wasted. The State and the applicant would similarly have had time, money and resources wasted and, significantly, serious criminal charges would not be determined. The delay in those charges being determined could be a very long time indeed if the Western Australian charges proceed to conviction and sentence.

17. In short, it is not in the interest of justice in New South Wales to permit the applicant to be immediately extradited from this State to Western Australia. Whilst I accept it is perhaps less likely that the Court is entitled to have regard to features personal to the applicant in considering the orders to be made pursuant to section 83, it would, in my opinion, be extraordinary if this Court were not entitled to have regard to the interests of justice in this State when considering the orders to be made pursuant to section 83.

18. If one were to take an analogy, had this warrant been executed next Tuesday, for example, a trial in progress in the District Court could have been thrown into chaos, a defendant before a Court removed from the jurisdiction, and the proceedings halted simply by the determination of a police officer from another State to secure the attendance of an individual in that other State. To me, that makes no sense and cannot be right.

19. Accordingly, I propose, as I must, to make an order pursuant to section 83(8)(b) that the applicant is taken, in custody or, to Perth, the place of the issue of the warrant, but I propose to suspend the order under paragraph (8)(b) for a specified period to permit the New South Wales criminal proceedings to be determined.

20. The estimate for the trial the Court has been told has been ten days. I assume that is an estimate for a jury trial rather than a judge alone trial. We could ordinarily expect a judge alone trial to be rather more speedily conducted than a jury trial, but it is impossible to say definitively.

21. Subsection (11) refers to a suspension as being for a specified period. As I understand the meaning of that phrase "specified period", it encompasses a period which is clear and particular. I am not entirely certain that would permit the Court to make a general order in the terms, for example, that the section 83(8)(b) order be suspended until such time as the New South Wales criminal proceedings were finalised. It seems to me that it does need to have a particular period of time mandated.

22. I propose to make orders accordingly.

23. Orders made 7 May 2021:

1. Pursuant to s 86(8) Service and Execution of Process Act 1992 (Cth), the order made by Quinn LCM on 4 May 2021 under s 83(8)(b) Service and Execution of Process Act 1992 (Cth) in relation to the plaintiff is revoked.

2. Pursuant to s 83(8)(b) Service and Execution of Process Act 1992 (Cth), the plaintiff is to be taken in the custody of Detective Sergeant Troy Kendall and Detective Senior Constable Craig Leahy of the Western Australia Police to Perth Magistrates’ Court, Perth, Western Australia.

3. Pursuant to s 83(11) Service and Execution of Process Act 1992 (Cth), order 2 is suspended until 4 pm on Friday, 28 May 2021.

4. Pursuant to s 83(12)(b) Service and Execution of Process Act 1992 (Cth), the plaintiff is remanded into the custody of New South Wales Corrective Services until the end of the period provided for by order 3.

5. The parties have liberty to restore the proceedings by email to the associate and tipstaff to Wilson J on 24 hours’ notice.

6. The Registrar is directed to add the Western Australian Commissioner of Police as a party to the proceedings so as to give access to the Court file and electronic portal.

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Decision last updated: 11 May 2021