Johnson, Malcolm Keith v Holmes, Ralph Murray & Ors

[1998] FCA 1482

MALCOLM KEITH JOHNSON v. RALPH MURRAY HOLMES (First Respondent), NATIONAL CRIME AUTHORITY (Second Respondent) and THE COMMONWELATH DIRECTOR OF PUBLIC PROSECUTIONS (Third Respondent)
No. SG 54 of 1997
FED No. 1482/98
Number of pages - 4
Appeal

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WILCOX, TAMBERLIN AND MERKEL JJ

Appeal - Application for extension of time to appeal - Decision of primary judge dismissing Administrative Decisions (Judicial Review) application on the ground it had not been made within a reasonable time - Application sought review of decision in connection with prosecution for criminal offences - Detention of 2 _ years since last information filed - Reasons for delay - Whether appellable error by primary judge - Undesirability of fragmenting the criminal process.

Administrative Decisions (Judicial Review) Act 1977

Newby v Moodie (1988) 83 ALR 523 - applied

ADELAIDE, 18 November 1998 (hearing and decision)

#DATE 18:11:1998

Counsel for the Applicant:	Mr C J Kourakis QC
Solicitor for the Applicant:	Lempriere Abbot McLeod
Counsel for the First Respondent:	Mr P Rice
Solicitor for the First Respondent:	Commonwealth Director of Public Prosecutions
Counsel for the Second Respondent:	Mr P Rice
Solicitor for the Second Respondent:	Commonwealth Director of Public Prosecutions
Counsel for the Third Respondent:	Mr P Rice
Solicitor for the Third Respondent:	Commonwealth Director of Public Prosecutions

THE COURT ORDERS THAT:

1. The application for extension of time to appeal against the decision of O'Loughlin J on 16 October 1997 be dismissed.

2. The applicant pay the respondents' costs of the application.

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

WILCOX, TAMBERLIN AND MERKEL JJ

Malcolm Keith Johnson has applied to the Court for an extension of time to appeal against a decision of O'Loughlin J dismissing an application made pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). The respondents to the application for review are Ralph Murray Holmes, a South Australian police officer who laid informations against Mr Johnson on 25 June 1993 and 22 February 1994, the National Crime Authority ("NCA") and the Commonwealth Director of Public Prosecutions ("the DPP"). O'Loughlin J held that the application for review had not been made within a reasonable time after the impugned decisions were made: see s 11(4)(a) and (c) of the Act.

In reaching his decision O'Loughlin J had regard to the history of the matter. Eleven decisions, or what were said to be decisions, were called in question by the application. They were the decisions of the NCA to investigate and continue to investigate, certain alleged offences, the decisions of the respondents to prosecute Mr Johnson for the offences the subject of the informations, the decisions to issue and lay the two informations, the decisions of the DPP to conduct the proceedings arising out of the laying of the informations and subsequent decisions in relation to seeking Mr Johnson's extradition from the United Kingdom. It appears extradition proceedings were commenced in December 1994 when an extradition warrant was issued in the United Kingdom. Committal proceedings were heard at Bow Street Magistrates Court in June 1996 when an extradition order was made. On 9 June 1997 the House of Lords refused leave to appeal against this order. One month later, on 7 July 1997 this proceeding was commenced.

O'Loughlin J analysed the delays that had occurred, which totalled some two and a half years since the second information was filed. He thought that the circumstances were such as to permit him, in the exercise of his discretion, summarily to dismiss the application.

His Honour gave judgment on 16 October 1997. The Federal Court Rules fix a period of 21 days for the filing of a Notice of Appeal. That period elapsed on 6 November 1997 without any appeal having been initiated. However Mr Johnson's solicitors had apparently given to counsel for the DPP an informal indication of an appeal. On 20 November the DPP informed Mr Johnson's solicitors that no objection would be taken to the lateness of an appeal if a Notice of Appeal was filed by close of business on the following day, 21 November. This was not done. It was not until 28 January 1998 that a document was filed, this being an application for leave to appeal (on the supposition that O'Loughlin J's order was not a final order). Both parties now agree his Honour's order was a final order. Consequently, the application now is for extension of time to appeal.

The solicitors for Mr Johnson filed affidavits designed to establish that the reason why no action was taken, after O'Loughlin J's decision, before 28 January 1998 was Mr Johnson's impecuniosity. The DPP indicated he would object to those affidavits being read unless the deponents were made available for cross-examination. This was impracticable. Even though a video-link could be used, time differences created a real problem. However, we are prepared to assume Mr Johnson's assertion is correct. Even so, in our view the present application ought to be dismissed.

Assuming impecuniosity, it is not easy to see why a Notice of Appeal could not have been filed on 21 November, to hold Mr Johnson's position while further instructions and funds were obtained. But we would not wish to decide the case on that narrow basis. We prefer to rest our decision on our view that the decision of O'Loughlin J has not been shown to have been affected by appellable error. We put the matter in this way because his Honour's decision was made in the exercise of a judicial discretion; consequently it must be evaluated in the light of the principles expounded in House v The King (1936) 55 CLR 499 at 504-505. The submissions of Counsel appearing for Mr Johnson have not persuaded us that error of the kind discussed in House has been demonstrated.

Counsel for Mr Johnson argued that his Honour erred in principle in holding against Mr Johnson the time that elapsed between the initiation of the extradition proceedings and the decision of the House of Lords. We do not think his Honour did this. He specifically commented that Mr Johnson was entitled to challenge the extradition proceedings in the United Kingdom and added "He is not to be criticised for having done so, nor is he to be subject of any adverse comment". But he noted, accurately in our view, that it was Mr Johnson's election to take this course. His Honour said that Mr Johnson "could have chosen to return to Australia to take up his fight in Australia but now, so it would seem, having found that his fight in the United Kingdom was unsuccessful, he wishes to take up the battle in this country". We think his Honour was simply making the point that Mr Johnson's choice (though perhaps understandable) had created a delay in the institution of this proceeding that was, in the whole of the circumstances adverted to by him, such that the proceeding had not been issued within a reasonable time after the making of the relevant decisions.

Counsel for Mr Johnson submitted that the delay ought to have been considered against the background that the impugned decisions had not yet come into operation. It was also said that no steps had been taken in the criminal proceedings. These statements are not accurate. The decisions have been acted upon; the extradition proceedings obviously involved the respondents in considerable effort and expense as did the continuation of their investigation.

O'Loughlin J recognised that the points proposed to be taken in the ADJR application could be taken in the criminal proceedings themselves, if Mr Johnson is returned to Australia. He referred to Newby v Moodie (1988) 83 ALR 523, a Full Court decision that has some factual similarity to the present case. At 528-529 the Court emphasised the undesirability of fragmentation of the criminal process, saying this:

"Cases abound in which the court has said that the power to make an order of review in respect of committal proceedings should be exercised only in the most exceptional cases. What was said in Lamb v Moss (1983) 49 ALR 533 at 564 to this effect has been consistently followed in subsequent decisions of this court. We are of the view that the same principle should be applied to applications of this sort. The High Court has recently said: "The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration from us": Vereker v O'Donovan (application for special leave to appeal, 18 March 1988, unreported)."

In our opinion these principles apply equally in the present case. They further support the view taken by O'Loughlin J. In all of these circumstances it is appropriate that the application for extension of time to appeal be dismissed with costs. We so order.