EXTRADITION – from Australia – bail – judicial review – whether magistrate misconstrued applicable test – whether irrelevant matters taken into consideration – whether denial of procedural fairness – whether the magistrate’s reasons were inadequate
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2020] HCA 29; (2020) 381 ALR 601
[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.
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AGLC
Ireland v Dunne [2021] FCA 245
Case
[2021] FCA 245
Decision Date
CaseChat Overview and Summary
The case of Ireland v Dunne involves a challenge by Ireland against the decision of a magistrate in the Australian Capital Territory to grant bail to the respondent, a dual Australian and Irish citizen, who is sought for extradition to Ireland on charges of sexual offences. The matter was heard in the Federal Court of Australia, where Ireland sought judicial review of the bail decision. The primary legal issues before the court were whether the magistrate misconstrued the applicable legal test for granting bail in extradition cases, whether irrelevant considerations were taken into account, and whether the magistrate's reasons were inadequate, thus denying procedural fairness.
The court found that the magistrate had indeed misconstrued the applicable legal test. It was established that the magistrate applied an incorrect test in relation to special circumstances and the risk of flight. The decision failed to engage with important submissions made by Ireland, particularly regarding the delay in bringing proceedings and the impact of the COVID-19 pandemic on extradition. Furthermore, the magistrate's reasons were inadequate as they did not properly address the arguments raised by Ireland and failed to refer to the evidence provided regarding the pandemic's effect on extradition processes. This led to a conclusion of jurisdictional error, affecting the quality of the reasons and the magistrate's intellectual engagement with the issues.
Consequently, the application for judicial review was allowed. The court quashed the magistrate's decision to grant bail and ordered that the respondent's bail application be reconsidered according to law. Additionally, the respondent was required to surrender himself into custody in accordance with the Attorney-General's Department's directions. The court also granted the respondent costs to be agreed upon or taxed. The order regarding the respondent's remand in custody, issued on 21 December 2020, remained in effect.
Orders
Orders of the court
1. Leave to amend the originating application dated 11 January 2021 in terms sought by the applicant is granted.
2. The application for judicial review is allowed.
3. The decision of the second respondent made on 22 December 2020 pursuant to s 15(2) of the Extradition Act 1988 (Cth) remanding the first respondent on bail be quashed by writ of certiorari.
4. The second respondent consider and determine the first respondent’s application for bail according to law.
5. The first respondent surrender himself into his former custody in accordance with the written direction of the Attorney-General’s Department as to the place and manner of that custody.
6. The first respondent pay the applicant’s costs to be agreed or taxed.
THE COURT DECLARES THAT:
1. The order of the second respondent of 21 December 2020 under s 15(2) of the Extradition Act 1988 (Cth), whereby the second respondent remanded the first respondent in custody, remains in effect.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons given below, the application for judicial review is allowed.Factual background The respondent is a dual citizen of Australia and Ireland born on 17 July 1966. As noted above, his extradition is sought by Ireland in relation to a number of sexual offences allegedly committed by him against his younger sister. The respondent’s sister made a complaint to Irish Police (Garda) on 26 August 2014. The respondent voluntarily attended an interview with the Garda on 28 August 2014, while he was on holiday in Ireland. On 5 June 2019, Judge John Lindsay, a Judge of the District Court of Dublin, issued arrest warrants against Mr Dunne in relation to the 17 offences referred to above. On 10 March 2020, the Attorney-General issued a notice stating that an extradition request had been received from Ireland for Mr Dunne under s 16 of the Extradition Act. On 20 March 2020, in response to an application made on behalf of Ireland, a magistrate of the Australian Capital Territory issued an extradition arrest warrant for Mr Dunne under s 12 of the Extradition Act. On 18 December 2020, in response to Ireland’s extradition request, the respondent was arrested by the Australian Federal Police and appeared before the Magistrate in the Bail and Remand Court at the Melbourne Magistrates’ Court. Following short submissions in which the respondent’s legal representative sought bail, the matter was adjourned to 21 December 2020. On 21 December 2020, the bail application resumed and the parties addressed the Magistrate. The Magistrate adjourned the hearing until the following day in order to consider her decision. On 22 December 2020 the Magistrate granted the respondent bail pursuant to s 15(2) of the Extradition Act subject to a number of conditions and gave oral reasons to that effect (Decision). At that time the matter was adjourned for the respondent to appear before a Magistrate on 22 February 2021. It is the events of that mention, which ultimately took place on 19 February 2021 that are relevant to the submission put by the respondent as to the futility of this application for judicial review. It is therefore appropriate to provide a chronology of events. On this application the applicant read two affidavits of Lisa Hemingway, the first affirmed on 11 January 2021, and the second on 25 February 2021. The respondent read an affidavit of Ruth Parker dated 25 February 2021. The affidavits were admitted without objection. Between 23 December 2020 and 16 February 2021, the parties did not correspond in relation to the February Mention. On 9 February 2021, a case management hearing was held in this Court and a timetable set for hearing this judicial review application on 26 February 2021. At that time, the mention hearing remained listed for 22 February 2021. The issue of expedition of this proceeding was discussed in the context of there being a dispute as to the appropriate timetable. The solicitor for Mr Dunne sought time to arrange funding and to accommodate the availability of his counsel and explained that from his perspective there was no urgency to have the matter heard. No issue was raised, given the dates discussed for hearing, of any effect of the February Mention on the Decision.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Second, the quality of the reasons necessarily affects the ability to assess whether there has been a failure to intellectually engage with the issues. This is also necessarily affected by the conclusion that the Magistrate applied the incorrect test in relation to special circumstances, and flight. What is plain, is that the Decision does not refer to Ireland’s submissions on important topics. To take an obvious example, the submission regarding the issue of delay in bringing proceedings and the COVID-19 pandemic. The Decision refers to the respondent’s submission and does not identify the arguments raised by Ireland. The only evidence before the Court as to any delay as a consequence of the COVID-19 pandemic was provided by Ireland. Yet that evidence was not referred to, but rather the Magistrate expressed concern about the uncertainty in the ability of the respondent to be extradited due to the COVID-19 pandemic. Conclusion For the reasons above, the applicant has established jurisdictional error in relation to the Decision. This is the operative decision the basis of the Bail Extension. I note that even if the Bail Extension is the relevant decision, it would also be infected by jurisdictional error as that was an extension of the original Decision. The orders sought by the applicant are on the basis of those made in United Kingdom v Forsyth (No 3) [2003] FCA 1097.
Ratio Decidendi
Legal Principle Established
Ireland submitted that if, contrary to its submission, it is the Bail Extension that is relevant, as that was an extension of the Decision, jurisdictional error is established. For that purpose Ireland sought leave to amend its claim to include the Bail Extension, but otherwise it remained the same. Consideration For the reasons below, the applicant’s submission as to the construction of s 15 must be accepted. The starting point for ascertaining the meaning of a statutory provision is the text of the statute having regard is to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 at [14]. A number of observations can be made about the provision. For the sake of convenience I will refer only to a magistrate as that it the operative person in this case. The reasons necessarily encompass an eligible Judge. First, in the context of international extradition, bail is ordinarily refused because there is a presumption that the defendant will flee the jurisdiction: Cabal at [63]. In international extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary, and it is only when there is something special about a defendant's circumstances that bail can be considered: Cabal at [72]. It follows that although bail can be granted it is limited by the requirement in s 15(6) that the extraditee not be remanded on bail unless there are special circumstances justifying such remand. Second, in that context, bail is considered where an application is made. Section 15(3), which was amended to its current form in 1997, provides that if a person is remanded in custody after making a bail application, the person cannot make another application during the remand unless there is evidence of a change of circumstances that might justify bail being granted. That reflects that the grant of bail is premised on the notion of an application being made. This plain reading of the provision is reflected in the Explanatory Memorandum relating to the Extradition Bill 1996, which is recited in Cabal (No 2) at [13], as follows: This amendment corrects a deficiency in the previous provision. Subsection 15(3) previously provided that where a magistrate remands a person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand. The purpose of the provision is to restrict ‘magistrate shopping’, but the provision could have had a more far‑reaching application than was originally intended, for instance, in cases where a magistrate dies, resigns or retires. The amendment avoids that possible effect by making it clear that if a person makes an application for bail and fails, the person is not able to make a further application unless there is evidence of a change in circumstances that might justify bail being granted.