Knauder v Moore

Case [2002] FCAFC 404

FEDERAL COURT OF AUSTRALIA

Knauder v Moore [2002] FCAFC 404

EXTRADITION – fugitive arrested and imprisoned in Australia pending extradition order of Australian magistrate – ten offences alleged – legal submissions directed to be served by magistrate not served on fugitive until arrival at hearing – magistrate required commencement of hearing on following day – fugitive not legally represented – extradition order made by magistrate – set aside by primary judge for denial of natural justice – primary judge proceeded with hearing de novo – seven out of ten offences made subject of extradition order – whether hearing before primary judge should have proceeded once inadequacy of pre-trial preparation time established.

Extradition Act 1988 (Cth) ss 5, 10, 12(1), 16(1), 19, 21(2)
Crimes Act 1900 (NSW) ss 178A, 178BA, 179

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 referred to
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 referred to
Charron v Government of the United States of America [2000] 1 WLR 179 referred to
De Bruyn v Republic of South Africa (1999) 96 FCR 29 cited
Republic of South Africa v Dutton (1997) 77 FCR 128 considered
Bennett v Government of the United Kingdom [2000] FCA 916 cited
Todhunter v United States of America (1995) 57 FCR 70 cited
Federal Republic of Germany v Parker (1998) 101 A Crim R 234 cited
Ammann v Wegener (1972) 129 CLR 4 cited
Papazoglou v Republic of The Philippines (1997) 92 A Crim R 418 cited
Pasini v United Mexican States (2002) 187 ALR 409 cited
Argus Real Estate Holdings Pty Limited v Lyristakis [2002] FCAFC 256 cited
Haoucher v Minister of State for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648 cited
Twist v Randwick Municipal Council (1976) 136 CLR 106 cited
Ackroyd v Whitehouse (1985) 2 NSWLR 239 cited
Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 cited
Corporation Of The City of Enfieldv Development Assessment Commissioner (1999) 199 CLR 135 applied
The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 applied
Boucaut Bay Co (In Liq) v The Commonwealth (1927) 40 CLR 98 applied
FCT v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited

Annetts v McCann (1990) 170 CLR 596 cited
Craig v South Australia (1995) 184 CLR 163 cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to

FRANK ANDREAS KNAUDER v MOORE & ANOR

N 692 OF 2002

MANSFIELD, CONTI & ALLSOP JJ
10 DECEMBER 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 692 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FRANK ANDREAS KNAUDER
APPELLANT

AND:

ALAN MOORE
FIRST RESPONDENT

AND:

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AGLC
Knauder v Moore [2002] FCAFC 404
Case
[2002] FCAFC 404
Decision Date

CaseChat Overview and Summary

The case of Knauder v Moore involved an extradition dispute between Frank Andreas Knauder, the appellant, and Magistrate Moore, the respondent. Knauder, a fugitive arrested in Australia, was subject to a warrant of arrest for ten offences, pending an extradition order by an Australian magistrate. The legal dispute centred on the manner in which Knauder's extradition hearing was conducted, particularly regarding the timing of the service of legal submissions and the adequacy of Knauder's preparation time. The primary judge, Justice Jacobson, had set aside the magistrate's extradition order for a denial of natural justice, and proceeded to re-hear the proceedings. The Federal Court of Australia was tasked with determining whether the primary judge should have proceeded with the hearing once the inadequacy of Knauder's pre-trial preparation time was established.

The key legal issues before the court were whether the magistrate's failure to allow Knauder a reasonable time to prepare for the hearing constituted a breach of natural justice, and if so, whether the primary judge should have halted the hearing. The court needed to consider the scope and nature of the review process in extradition matters, particularly in light of the relevant statutory provisions and precedents. It was also necessary to determine whether the primary judge's decision to proceed with the hearing was an abuse of process, given the circumstances surrounding Knauder's preparation.

The court concluded that the magistrate's failure to allow Knauder a reasonable time to prepare for the hearing did indeed constitute a breach of natural justice. However, the court found that the primary judge's decision to proceed with the hearing was not an abuse of process. The court emphasised the broad scope of review in extradition matters, and held that the primary judge was entitled to re-examine the magistrate's decision, considering the material before the magistrate. The court further found that the primary judge's decision to proceed with the hearing was not affected by the breach of natural justice, as the appellant had not demonstrated any prejudice resulting from the inadequate preparation time.

The court allowed the appeal, setting aside the primary judge's orders confirming the magistrate's extradition orders concerning certain offences. The warrant issued under the Extradition Act 1988 (Cth) was quashed, and Knauder was ordered to be released from custody forthwith. The second respondent was ordered to pay Knauder's costs, to the extent that they were recoverable. These orders were to be entered immediately.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Court dated 2 July 2002 made by the primary judge insofar as the orders confirm the orders of the magistrate concerning the extradition offences specified in paragraphs 3 to 9 of the warrant of arrest, be set aside.

3. The warrant issued under par 19(9)(a) of the Extradition Act 1988 (Cth) be quashed.

4. The appellant, Frank Andreas Knauder, be released from custody, forthwith.

5. The second respondent pay the costs of the appellant, to the extent that there are any recoverable costs.

6. These orders be entered forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant concluded his written submissions in chief with the following summaries which may be conveniently extracted below verbatim:“25.By the decision of His Honour Justice Jacobson the Appellant has been denied the opportunity to properly utilize a step in the extradition process provided by law in the Act. Further more the Appellant was put at an unfair disadvantage by not being allowed to bring his full defence forward on a prepared and considered basis.26.Clearly having decided the denial of natural justice to the Appellant the result delivered was not proper. If it were then the modis operandi would be available for foreign countries to ignore directions of Magistrates and conduct their applications by ambush before the s 19 Magistrate. If the matter went to Review Respondents could then introduce changed and unauthenticated Statements of Conduct to be relied on by the Court of review as occurred in this case.”Those submissions have already been substantially addressed.The respondent’s submissions and my conclusions thereon As already foreshadowed, the FRG adopted the course taken by the primary judge of re-hearing the proceedings, following upon his Honour’s finding that Magistrate Moore had not allowed the appellant a reasonable time in which to prepare for the conduct of the proceedings in the Local Court. The FRG sought a measure of support from the dictum of Hill J in Dutton which I have extracted and addressed in [18] above. The FRG thereafter cited the following dicta of a Full Court (Neaves, Olney and Cooper JJ) in Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 361:“In our opinion, the effect of these provisions is that, on the hearing of a review for which the person ordered to be committed to prison under section 19(9) has applied, the question for the Court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country and not the more limited question whether the person is eligible for surrender in relation to the offence or the offences in relation to which the magistrate has determined that the person is so eligible. The circumstance that the Act provides for the review of the magistrate’s order and not for an appeal from that order is significant in this regard. It follows that in our opinion, the Supreme Court took too narrow a view of the scope of the review upon which it was engaged.”and in addition, the following dicta of a subsequent Full Court (Lockhart, Hill and Kiefel JJ) in the next stage of the Kainhofer litigation (1996) 70 FCR 184 at 194:“The review is a review of the relevant order in this case, the order that Ms Kainhofer be committed to await surrender. But the issue on the review is not limited to the question whether Ms Kainhofer should be committed for surrender only in respect of the four counts found to constitute double criminality. The word ‘review’ is not a word of limitation; it is a word of great width. The word may have different meanings depending on its context: cf Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 and 509-510. In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate.”

Ratio Decidendi

Legal Principle Established

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