Loveridge v Commissioner of Police for South Australia - [2004] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
LOVERIDGE v COMMISSIONER OF POLICE FOR SOUTH AUSTRALIA
Judgment of The Honourable Justice White
7 July 2004
EXTRADITION - SERVICE AND EXECUTION OF PROCESS ACT - EXECUTION OF WARRANTS - ORDER FOR RETURN
REVIEW OF ORDER SOUGHT - DELAY BETWEEN ISSUE OF WARRANT AND ARREST

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS
WARRANTS FOR ARREST AND DETENTION - ISSUE AND VALIDITY - GENERALLY

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
SUPERVISORY JURISDICTION OF SUPREME COURT - ABUSE OF PROCESS
Application for review of order for Extradition to Western Australia - Warrant for arrest of applicant issued 24 years ago - Warrant valid - Applicant offered to cooperate and return to Western Australia eight years after warrant issued - Western Australian police indicated that they would not pursue the applicant - Statutory regime changed since then - Fewer grounds of review - Abuse of process of Magistrates Court.
Justices Act 1902 (WA) s 62; Crimes Act 1914 (Cth) s 10; Service and Execution of Process Act 1992 (Cth) s 82, s 83, s 86; Service and Execution of Process Act 1901 (Cth) s 18; Extradition Act 1988 (Cth) s 19; Administrative Decisions (Judicial Review) Act 1977 (Cth); ct 1903 (Cth) s 39, referred to.
Aston v Irvine (1955) 92 CLR 353; Silbersher v Gerkens (1984) A Crim R 1; Woss v Jacobsen (1984) 56 ALR 254; Wunsch v SA Police (1995) 64 SASR 203; Police v Gray [2003] SASC 15; DPP v Shirvanian (1988) 44 NSWLR 129; DPP v Heagney (1999) NSWSC 303; Walton v Gardiner (1993) 177 CLR 378; R v Mohi (2000) 78 SASR 515; Perry v Lean (1985) 39 SASR 515, applied.
Applebee v The Queen (1995) 79 A Crim R 554; Lavelle v The Queen (1995) 82 A Crim R 187, distinguished.
Lavelle v The Queen (1994) 72 A Crim R 402, discussed.
R v Crossman (1908) 98 LT 760; R v Trainor [1992] 2 Qd R 572; R v Croydon Justices, Ex parte Dean [1993] QB 769; R v Mohi (2000) 78 SASR 55; Lamb v Moss (1983) 49 ALR 533; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528; Pasini v United Mexican States (2002) 209 CLR 246; Nicholas v The Queen (1998) 193 CLR 173; Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485; R v Abbrederis [1981] 1 NSWLR 530; Butler v Commissioner of Police (Unreported, NSWSC 29 November 1997); Carmady v Hinton (1980) 23 SASR 409; Hunt v Chief Constable of the West Midlands Police [1982] AC 529; R v Gummer [1995] 1 Qd R 346; Perry v Director of Public Prosecutions, Fry and Lean (1985) 6 FCR 578; Re Dalton (1995) 120 FLR 408; Rose v Chief Commissioner for Police [2000] VSC 281; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"forthwith"

LOVERIDGE v COMMISSIONER OF POLICE FOR SOUTH AUSTRALIA
[2004] SASC 195
Criminal
Reasons for Decision
WHITE J:
Introduction

This is an application, pursuant to s 86 of the Service and Execution of Process Act 1992 (Cth), for review of an order made by the Chief Magistrate on 30 April 2004. The Chief Magistrate ordered, pursuant to s 83(8) of the Act, that the applicant be remanded on bail to appear before the Fremantle Magistrates Court on Monday 2 August 2004 at 10.00 am.
Both counsel accepted that the Service and Execution of Process Act 1992 was applicable, notwithstanding that the warrant had issued in April 1980.
The review is by way of rehearing (s 86(7)). It was not submitted that the scope of the review extended beyond the matters which could be considered by the Magistrate.
Background Circumstances
The applicant is presently 48 years of age. On 26 December 1978, when she was 22 years old, the applicant was charged, in Western Australia, with the offence of possessing heroin with intent to sell or supply. On 24 January 1979, the applicant failed to appear in the Perth Supreme Court to answer that charge. A Bench Warrant was issued. On 21 January 1980, the applicant was extradited from New South Wales to Western Australia. On 7 March 1980, the applicant was convicted of the offence with which she was charged, and remanded in custody for sentence.
On 4 April 1980, the applicant escaped from the Bandyup prison in Western Australia. On 10 April 1980, a warrant for her arrest was issued.
The applicant says that, at that stage of her life, she was addicted to heroin, and whilst in prison was experiencing what is commonly called “cold turkey”.
On 21 April 2004, a South Australian police officer, acting pursuant to s 82 of the Service and Execution of Process Act 1992, and in reliance upon the warrant issued on 10 April 1980, arrested the applicant at her home at Mundoora, a small town in the mid north of South Australia.
Following that arrest, the applicant was brought, after an adjournment, before the Chief Magistrate who, after a further adjournment, made the order on 30 April which is the subject of this application for review. In these reasons I will refer, for convenience, to the application to the Magistrate as the application for extradition, and to the order made by the Chief Magistrate as the order for extradition.
The Grounds for Review
In the application for review filed on 7 May 2004, the applicant raised one ground only, viz:
“That the granting of an application for extradition amounts to an abuse of the process of the Court and that the application should be dismissed or in the alternative permanently stayed.”
Although from that ground it might have been thought that it was the grant of the application for extradition which was complained of, at the hearing of the application for review, Mr Boucaut, counsel for the applicant, made it plain that what the applicant said constituted the abuse of process was the application to the Magistrate for the order of extradition, rather than the order itself.
In addition, at the hearing, the applicant also argued that the Chief Magistrate’s order should be revoked on a further, or alternative, ground, namely, that the warrant issued on 10 April 1980 was now invalid. No objection was taken by Mr Hinton, counsel for the respondent, to this additional ground being argued.
Additional Background Circumstances
Common to both grounds are additional background circumstances. Following her escape from custody in 1980, the applicant left Western Australia. She lived variously in Victoria and in Alice Springs. The applicant gave birth to a child on 29 January 1982, a second child on 17 October 1988, and a third child in 1996. She moved to South Australia in the early 1990s.
In 1988, whilst living in Alice Springs, and shortly before the birth of her second child, the applicant determined “to finalise the outstanding matter in Western Australia”. She says that she was prepared to return to Western Australia for this purpose.
To this end, the applicant instructed Mr Sean Stewart of the law firm “Stewart & Co” at Alice Springs to make contact with the Western Australian authorities. On 30 August 1988, Mr Stewart wrote to the Crown Solicitor in Western Australia. After identifying the matter in Western Australia concerning the applicant, Mr Stewart said:
“We are instructed that in the event of proceedings being initiated in respect of Miss Loveridge which would require her appearance in Western Australia, we are to accept service on her behalf and will endeavour to ensure her attendance in Western Australia.”
It is unclear whether the applicant knew, as at August 1988, that a warrant had been issued for her arrest.
Shortly after this letter was written, it seems that Mr Stewart, at the applicant’s expense, travelled to Perth and spoke to a Mr Graeme Scott in the Crown Solicitor’s office. The original of Mr Stewart’s letter of 30 August contains a file note apparently made and signed by Mr Scott as follows:
“Mr Stewart is sending a ‘nolle’ submission on this matter for consideration by AG. Note O/S are:
(1)    Bail forfeiture
(2)    Escape charges
(3)    Sentence for the drug offence.”
The file note is undated but the communication it refers to apparently took place between 9 September 1988 and 19 October 1988.
Mr Stewart made the “nolle” submission foreshadowed by a further letter dated 19 October 1988. The submission was in fact a request that “the WA authorities exercise their discretion not to execute the warrant” on compassionate grounds. In support of that request, Mr Stewart referred to the applicant’s overcoming of her heroin addiction, her stable domestic circumstances, her responsibilities as a sole parent in caring for her six year old son (whose education whilst in the custody of his father had apparently been somewhat intermittent), the support she was receiving from members of her own family who were then also resident in Alice Springs, the “antiquity” of the offences and the fact that she had given birth to her second child on 17 October 1988.
In response to that letter, the Crown Solicitor’s office wrote on 31 January 1989 as follows:
“I refer to your letter of 19 October 1988. Please be advised that for the moment the WA Police do not intend to take action to extradite your client. However, there does of course remain a live warrant in this State which could be executed by the Police at any time should circumstances in relation to your client alter.”
I noted that the intention referred to in the first sentence was an intention with respect to extradition, rather than an intention with respect to the outstanding matters recorded in Mr Scott’s file note. The second sentence implies that those matters might be pursued if the applicant returned voluntarily to Western Australia.
A copy of the Crown Solicitor’s letter was provided to the applicant very shortly after its receipt. She describes herself as having been “elated to receive this news”.
Until early 2004, the applicant had believed that she was not required to return to Western Australia to be sentenced on the drug charge for which she was found guilty on 7 March 1980, or to be charged in respect of her escape from custody. As noted above, she has lived in South Australia (under her own name) since the early 1990s. The applicant has owned real estate (in her own name) at Mundoora since 1995. She has had employment intermittently in this period. From time to time since 1988 she has been a recipient of Social Security payments. The applicant has lived openly without any attempt to hide her true identity, or to conceal her whereabouts.
In these circumstances, it is understandable that her recent arrest pursuant to the 1980 warrant has come as a considerable shock to her. Her arrest and detention in custody for the period 21 April 2004 to 30 April 2004 has also had, and may continue to have, significant ramifications for the applicant, her husband and their children.
Is the Warrant Valid?
I will deal first with the submission as to invalidity. If the warrant is now invalid, the Chief Magistrate was bound, pursuant to s 83(10) of the Service and Execution of Process Act 1992, to order the release of the applicant, and I should uphold the application for review whatever be my views about the submissions as to abuse of process.
The applicant argued one matter only as invalidating the warrant. That argument was founded in the command in the warrant to the police officers to whom it was directed to execute the warrant “forthwith”. The command was in the following terms:
“These are therefore to command you in Her Majesty’s name, forthwith to apprehend the said Helen Jane Loveridge and to bring him (sic) before some one or more of Her Majesty’s Justices of the Peace to answer to the said complaint, and to be further dealt with according to law.”
The applicant submitted that in not seeking the execution of the warrant in 1988 in circumstances where not only were her whereabouts known, but where an intimation of willingness to return to Western Australia had been given, there had not been compliance with the command to apprehend her “forthwith”. That non-compliance, it was said, had the effect that the warrant had been allowed to lapse, so that it ought to be regarded as no longer valid for the purposes of extradition proceedings.
Section 83(10) of the Service and Execution Process Act 1992 provides:
“The Magistrate must order that the person be released if the Magistrate is satisfied that the warrant is invalid.”
The applicant argued, in effect, that the word “invalid” in s 83(10) should be given an expansive meaning. A warrant may be invalid, it was said, not only because of a defect in form, or procedure in its making, or some other defect existing as at the time it was issued. An otherwise valid warrant may become invalid, in the sense of inoperative, so it was argued, by events occurring after it was issued. In particular the elapse of time may invalidate a warrant, even though the warrant does not specify a term during which it is to remain in force.
In my opinion, the applicant’s submission as to invalidity should not be accepted. In the first place, the submission is inconsistent with the express provision contained in s 62 of the Justices Act 1902 (WA) which provides that “a warrant need not be returnable at any particular time, but may remain in force until executed, and may be executed by apprehending the defendant at any place within the State” (emphasis added). It is, I suppose, possible that the words emphasized may be construed as permitting the Justice issuing the warrant to specify such term for the operation of the warrant as he or she sees fit, extending, if thought appropriate, until the time of execution of the warrant. However, I do not think that is the better view. I consider that s 62 is to be construed as indicating that a warrant “does” or “will” remain in force until executed unless the warrant itself includes a statement that it is returnable at a particular time. I acknowledge that there is no express provision in the Justices Act 1902 for revocation, cancellation or expiry of a warrant. However, a power to cancel a warrant can be probably be inferred: cf R v Crossman (1908) 98 LT 760.
The only authority relied upon by the applicant in support of the submission as to invalidity was Applebee (1995) 79 A Crim R 554. In that case, it was held that a search warrant issued pursuant to s 10 of the Crimes Act 1914 (Cth) of 6 July 1993 had “ceased to authorise” the entry into the accused’s premises which occurred on 5 August 1993 by reason of not having been executed in a reasonable time. However, the provisions of the Crimes Act 1914 in force in July 1993 did not contain any stipulation with respect to the duration of a search warrant. In particular, there was no equivalent to s 62 of the Justices Act 1902 (WA). Hence, the implication of a reasonable time for the execution of a warrant could be inferred. I do not consider that Applebee supports the appellant’s submission.
Under s 83 of the Service and Execution of Process Act 1992, where the warrant is produced to the Magistrate, it is only upon satisfaction of the invalidity of the warrant that the Magistrate is authorised (and required) to order the release. Satisfaction as to the invalidity of some other aspect of the process (which does not affect the validity of the warrant) is insufficient. I mention this because in some ways the applicant’s complaint, based on the staleness of the warrant, was as to the validity of the arrest pursuant to the warrant. It is not necessary for me to consider the validity of the arrest, and, in particular, whether an arrest which was not made “forthwith” in compliance with the warrant’s command was valid, and, or in the alternative, not authorised by the warrant.
My conclusion is that whilst a long time has elapsed since the warrant was issued on 10 April 1980 and since 31 January 1989, it is not, on that account, invalid.
Abuse of Process
The applicant argued, in the alternative, that even if the warrant was valid, the application to the Magistrate seeking her extradition to Western Australia was an abuse of process of the Magistrate’s Court. The applicant relied on the long period which had elapsed together with, in particular, what was said to be the unexplained shift by the West Australian authorities from the position communicated in the letter of 31 January 1989.
Relying by analogy on cases in which courts have precluded prosecuting authorities from resiling from a prior arrangement or understanding (eg R v Trainor [1992] 2 Qd R 572; R v Croydon Justices; ex parte Dean [1993] QB 769; R v Mohi (2000) 78 SASR 55), upon the long period which had elapsed since receiving the favourable intimation in the letter of 31 January 1989, and upon the disruption to her life and that of her family which extradition would involve, the applicant submitted that the action of the Western Australian authorities was so oppressive that the application for extradition should be regarded as an abuse of the process of the South Australian Magistrates Court.
In addition, the applicant submitted that had the application for extradition been pursued in the period between 1980 and 1992 under the Service and Execution of Process Act 1901, the grounds upon which she may have resisted the extradition would have been greater than they are under the 1992 Act. In this respect, the applicant referred to s 18(6) of the 1901 Act which permitted the Magistrate, amongst other things, to discharge the arrested person if satisfied:
“(a) the charge is of a trivial nature;
(b)the application for the return of the person has not been made in good faith in the interests of justice; or
(c)for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period.”
In contrast, under s 83 of the 1992 Act, apart from the possibility of a refusal of the order for extradition on the ground of abuse of process or on the ground that the warrant itself is invalid, the Magistrate is required to make the order for extradition. In this circumstance, the applicant submitted that her position had been materially prejudiced by the inaction of the Western Australian authorities in not seeking the execution of the warrant until 2004.
In these circumstances, the present application for extradition was, it was submitted, so oppressive as to constitute an abuse of the South Australian Magistrates Court.
Mr Boucaut, for the applicant, argued that it was the application to, rather than the order made by, the Chief Magistrate which constituted the abuse of process of the Magistrate’s Court. He thereby sought to distinguish the decision in Lavelle v The Queen (1995) 82 A Crim R 187 upon which the respondent relies.
The orders sought in the written application to the Magistrate’s Court were as follows:
“Details of the orders sought: To be delivered into the custody of Western Australian police no later than 4.00 pm on Friday 30^th April 2004, for extradition back to Western Australia to answer the charge mentioned in the warrant produced.
And whereas it is alleged that the defendant is the person named in the abovementioned warrant, an order is sought to authorise the return of the defendant (in such custody or otherwise as the Court may determine) to such sitting place in the State or Territory from which the warrant issued as the Court may specify.”
The respondent argued four matters in answer to the alleged abuse of process:
(a)the function performed by the Magistrate pursuant to s 83 of the Service and Execution of Process Act is administrative in nature, and therefore that the remedies of a stay or a dismissal were not available;
(b)that abuse of process, at least in so far as it was said to arise from oppression and unfairness to the applicant, was not a ground open to the Magistrate, or to the Supreme Court on review of the Magistrate’s decision, as a ground for refusing to make an extradition order;
(c )that even if the first two points be resolved in favour of the applicant, there was not, in all the circumstances of this case, an abuse of the Magistrate’s Court which required the refusal of the order sought by the West Australian authorities;
(d)that any recourse to relief which the applicant may have in respect of the Magistrate’s decision lay not in an application for review pursuant to s 86 of the 1992 Act, but by other means. In particular, the respondent suggested that declaratory or other relief pursuant to the Court’s jurisdiction granted by s 39 of the Judiciary Act 1903, or alternatively in the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 may be available. The respondent did not submit such relief was in fact available in the present circumstances.

I will consider these in turn.
The Magistrate’s Function: Administrative or Judicial?
The function exercised by a Magistrate under s 18 of the Service and Execution of Process Act 1901 (the counterpart of s 86 in the 1992 Act) was accepted as being administrative in character: Aston v Irvine (1955) 92 CLR 353 at 365; Silbersher v Gerkens (1984) 13 A Crim R 1 at 5; Woss v Jacobsen (1984) 56 ALR 254 at 260; and see also Lamb v Moss (1983) 49 ALR 533 at 558 – 559. A similar view has been taken of the analogous function exercised by a Magistrate under s 19 of the Extradition Act 1988 (Cth): Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 per Brennan CJ, Dawson and McHugh JJ; at 540 per Toohey J; at 543 per Gummow J; Pasini v United Mexican States (2002) 209 CLR 246 at 254 – 255 per Gleeson CJ, Gaudron, McHugh and Gummow JJ.
On the other hand, in exercising the right of review pursuant to s 19 of the 1901 Act (and correspondingly pursuant to s 86 of the 1992 Act), the Supreme Court is exercising judicial power: Aston v Irvine at 366.
In my opinion, the function exercised by a Magistrate under s 83 of the 1992 Act is not materially different in character from that previously exercised by a Magistrate under s 18 of the 1901 Act. I accept therefore that the Magistrate’s decision in the present case was administrative in nature.
However, it does not follow from that characterisation that the Magistrate lacked the power to dismiss the application for extradition, or otherwise to decline to make the order sought, if satisfied that the application constituted an abuse of the Court’s process. An administrative decision-maker is not bound to make the decision sought by an applicant who, for example, seeks the exercise of the power for an improper purpose or in bad faith. Furthermore, the characterisation of the function of the Magistrate as administrative or judicial does not affect the power of the Supreme Court to confirm, revoke or vary the order made by the Magistrate in the exercise of the statutory jurisdiction to review that decision.
Abuse of Power as a Ground for Refusing the Extradition Order
As noted above under the 1901 Act, a Magistrate could decline to make an extradition order if satisfied that the charge was of a trivial nature (s 18(6)(a)), or that the application for the return of the person had not been made in good faith in the interests of justice (s 18(6)(b)), or if for any reason it would be unjust or oppressive to return the person either at all, or until the expiration of a certain period (s 18(6)(c)). In contrast, under the 1992 Act, (subject to some qualifications which are not presently material) the Magistrate must order “the extradition” of the person unless satisfied that the warrant is invalid: see s 83(8) and s 83(10). Those legislative provisions, coupled with the change from the position which applied under the 1901 Act, led the respondent to submit that a Magistrate does not have power to refuse to order extradition on the grounds of abuse of process. The sole ground for refusal to make an order available to the Magistrate, so it was submitted, is the invalidity of the warrant. Once satisfied of the validity of the warrant, a Magistrate should proceed to make one or other of the two orders for extradition contemplated by s 83(8).
It is said that this submission obtains support from the consideration that the Australian Parliament, in enacting the 1992 Act, which, in the main, gave effect to recommendations contained in Report No 40 of the Australian Law Reform Commission “Service and Execution of Process”, did not adopt the recommendation of the ALRC that an extradition should be able to be resisted on grounds of injustice, or oppression, or abuse of process (Report [404]).
However, in my opinion, neither of these two considerations is inconsistent with the exercise by the Magistrate, in an appropriate case, of the Magistrates Court’s inherent power to dismiss an application for extradition on the ground of abuse of process. Whilst it is true that the functions and powers bestowed by s 83 are quite circumscribed, it is to be remembered that those functions and powers are vested in a court which has an inherent (or at least an implied) power to protect itself from abuse of its own process: Wunsch v SA Police (1995) 64 SASR 203 at 210; Police v Gray [2003] SASC 15 at [14] – [18]; DPP v Shirvanian (1998) 44 NSWLR 129 at 132 – 133; DPP v Heagney [1999] NSWSC 303 at [31] – [37]
The matters to which the respondent refers indicate that the Magistrate does not have a statutory power to release the arrested person because of hardship or oppression or want of good faith, but they do not indicate, in my opinion, that the inherent power of the Magistrates Court has also been excluded.
Indeed, if s 86 of the Service and Execution of Process Act was to be construed as excluding the exercise, in an appropriate case, of the inherent power to dismiss or stay proceedings for abuse of process, a question of its validity may arise. The ability of the Commonwealth Parliament to enact legislation which would require a court to act in a way which is inconsistent with its essential character as a court has been doubted. In particular, with reference to abuse of process, in Nicholas v The Queen (1997) 193 CLR 173 McHugh J said, at 226;
“So far as Ch III is concerned, however, the power of the Parliament of the Commonwealth to determine whether or not the public interest requires certain conduct to be characterised as an abuse of a federal court's process is limited by the Constitution's separation of judicial from legislative power. Consistently with maintaining the independence of the federal judiciary which Ch III of the Constitution guarantees to the nation, the federal courts cannot transfer to the Parliament of the Commonwealth the power or responsibility for defining what is an abuse of their process. Parliament, for example, cannot prevent a litigant from invoking the jurisdiction of this Court by declaring conduct to be an abuse of process when it is not. Similarly, Parliament cannot prevent this Court from protecting its process by declaring conduct not to be an abuse of process when it is an abuse of process. It is a necessary corollary of the last proposition that Parliament cannot hamper this Court or other federal courts in determining whether conduct is an abuse of process or has a tendency to undermine public confidence in their administration of justice.”
Although McHugh J dissented in Nicholas, Gaudron J, who was in the majority, said (at 208 - 9):
“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute”.
The principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 may indicate that similar limitations apply to legislation affecting a State court.
However, this point was not argued before me and I propose to say no more about it.
The respondent also relied upon the decision of the Full Court of the Supreme Court of Western Australia in Lavelle v The Queen (1995) A Crim R 187, a decision with which Hedigan J in Rose v Chief Commissioner of Police [2000] VSC 281 expressed agreement. In Lavelle, a Western Australian Magistrate had ordered, pursuant to s 86(8), the extradition of the applicant to Victoria. The applicant had resisted that order on the grounds that the return would be oppressive. An application for review, pursuant to s 86 of the 1992 Act, was lodged in the Supreme Court. At the hearing before Murray J, the applicant did not pursue the application for review, accepting that the warrant was valid and that the Court of Petty Sessions did not have a general discretion to refrain from making the order. However, at first instance, Murray J held that the Supreme Court had, in addition to the jurisdiction granted pursuant to s 86 of the 1992 Act, an inherent jurisdiction to set aside the order for extradition upon the ground that it would operate in a way which would make it an abuse of the Court of Petty Sessions, and that in the circumstances of that case, that jurisdiction should be exercised in the applicant’s favour (Lavelle v The Queen (1994) 72 A Crim R 402 at 407 – 409). It will be observed that what was being invoked was the inherent supervisory jurisdiction of the Supreme Court and that what was thought to be the abuse was the order made by the Magistrate.
An appeal from the decision of Murray J was allowed (Lavelle v The Queen (1995) 82 A Crim R 187). It was held by Rowland J, writing the principal judgment of the Court, that the inherent supervisory jurisdiction to which Murray J referred did not permit the Court to override the exercise of power by a Magistrate exercising powers lawfully and in accordance with the express provisions of a valid Commonwealth law (p 189).
Rowland J said at 189:
“It seems to have been overlooked in this case that the Court of Petty Sessions was in fact exercising power under Commonwealth legislation pursuant to which it was directed, relevantly in the circumstances which are not disputed, to make an order for extradition if the warrant issued by a court of competent jurisdiction in another State or Territory was not invoked. In exercising power under the Commonwealth legislation, the Court of Petty Sessions is bound to give effect to a valid warrant issued by a court of competent jurisdiction of another State or Territory. If the issue of that warrant can be challenged on the basis that it is an abuse of process of the court of issue, then that is a matter for that court, or, if it lacks power, to a court of that State or Territory which exercises supervisory jurisdiction over that court. It cannot be an abuse of process of the Court of Petty Sessions of Western Australia to exercise a power it is bound to, and, in the circumstances of this case, obliged to, exercise in accordance with an Act of the Commonwealth. This Court does not exercise supervisory jurisdiction over courts (sic) of another State or Territory, valid on their face, issued by those courts. It is apparent from reading the Second Reading Speech when the Act was introduced into the Commonwealth Parliament that the exclusion of the criteria which would enable a Magistrate to refuse to make an order of extradition, based on matters such as delay and oppression and lack of justice, were deliberately excluded [sic] as a result of discussion amongst the various Attorneys-General of the Commonwealth and States.”
There are a number of points to be noted about that passage. First, the existence of an inherent jurisdiction in the Court of Petty Sessions of Western Australia to dismiss or stay proceedings on the grounds of abuse of process was not discussed at all. In particular, the interrelationship between s 83 of the 1992 Act on the one hand, and such an inherent jurisdiction on the other, was not discussed. Secondly, the principal question in the case was the application of the inherent supervisory jurisdiction of the Western Australian Supreme Court in respect of functions bestowed on Western Australian Magistrates by the Commonwealth Act. Thirdly, the step in the process said to be the abuse was the order made by the Court of Petty Sessions and not the application for that order. Rowland J did say “it cannot be an abuse of process of the Court of Petty Sessions of Western Australia to exercise the power it is bound to, and, in the circumstances of this case, obliged to, exercise in accordance with an Act of the Commonwealth”. That is quite a different matter from holding that the application for extradition may not be an abuse.
In my opinion, Lavelle does not address the point which I am asked to decide. If it did, I would regard myself as bound to follow it having regard to the principle that a single member of one State Supreme Court should not depart from an interpretation placed on Commonwealth legislation by the intermediate Appellate Court of another State unless satisfied that it is clearly wrong: Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485; R v Abbrederis [1981] 1 NSWLR 530; Butler v Commissioner of Police (Unreported, NSWSC 29 November 1997: BC 97 06189).
However, my conclusion is that a South Australian Magistrate may, in an appropriate case, stay or dismiss an application for extradition on the ground of abuse of process pursuant to the inherent power of the Magistrates Court. Of course, the circumstances in which the inherent jurisdiction may be exercised are likely to be rare and exceptional.
Was the Application and Abuse of Process?
At a general level, an abuse of process occurs when “the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness”: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. Later, in the same judgment, it was said:
“… the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.” (395 – 396)
In R v Mohi (2000) 78 SASR 55 at 61, Martin J said:
“The critical question is whether the interests of justice demand that the power to stay the prosecution be exercised. The fairness of a trial is only one factor of many which bear upon those interests. The onus of satisfying a court that an abuse exists lies upon the party alleging it. That onus is a heavy one. ‘The power to grant a permanent stay is one to be exercised only in most exceptional circumstances.’”
In this case, it is the application for extradition which is to be considered. It is not the decision to pursue the prosecution of the applicant for her conduct. That decision does however provide the background by which the issue of abuse in the making of the application for extradition is to be considered.
Further, adopting what was said by Jacobs J in Perry v Lean (1985) 39 SASR 515 at 519, the question of abuse based on oppression is not to be answered by deciding whether it is oppressive for the applicant now to be prosecuted in Western Australia. Instead the question is whether it is so oppressive to apply for the removal of the applicant to Western Australia as to constitute an abuse of the Magistrates Court. In answering that question, it is to be remembered that there is “no talismanic virtue in a State boundary line”: (Carmady v Hinton (1980) 23 SASR 409 at 411)
Bearing these principles in mind, my opinion is that exceptional circumstances do exist in the present case. The execution of the warrant 24 years after it was issued is remarkable enough. It is all the more remarkable in view of the intimation given in the letter of 31 January 1989. A conscious decision was then made not to seek the extradition of the applicant. No explanation for the change of view by the Western Australian authorities was provided to the Magistrate or to this Court. In 1988 the applicant was prepared to return to Western Australia to face the consequences of her earlier conduct. She was not required to do so. In effect, she was encouraged to continue with the ordering of her life and the rehabilitation of herself as a citizen. Her expression of willingness to return to Western Australia at that time appears to be evidence of her rehabilitation to that time. The appellant has continued to build a life for herself and her family in the belief that she would not be required to return to Western Australia. She has lived openly in South Australia for many years under her own name. With the exception of one court appearance (which appears to be of little consequence in the present context) the applicant has lived a law abiding life for many years. The arrest and the subsequent court appearances have been a serious intrusion into, and disruption of, her life. The absence of any explanation for the change of attitude by the Western Australian authorities heightens the sense of oppression. The applicant’s whereabouts, known in 1988, must have been easily ascertainable since she moved to South Australia. A warrant is not to be treated as an authority which can be executed at any time, as though at the whim of the prosecuting and police authorities.
In my opinion, in this combination of circumstances, and in the words of Lord Diplock in Hunt v Chief Constable of the West Midlands Police [1982] AC 529 at 536, the application for the extradition of the applicant brings “the administration of justice into disrepute among right-thinking people”. The making of the application was therefore, in my opinion, an abuse of the process of the Magistrates Court which entitled the Chief Magistrate to refuse to make the order for extradition.
Alternative Remedies
In the light of the conclusion just expressed it is unnecessary for me to say anything about alternatives for relief which may be available to the applicant. I record however, in case it be of assistance, the submission of the respondent that the jurisdiction of this Court pursuant to s 39 of the Judiciary Act 1903 (Cth) may be invoked in an appropriate case. See in this respect the judgment of Pincus JA in Gummer [1995] 1 Qd 346 at 351 – 352. Mr Hinton also submitted that relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) may be available in an appropriate case: as to which see Silbersher v Gerkens (1984) 13 A Crim R 1; Woss v Jacobsen (1984) 56 ALR 254; Perry v Director of Public Prosecutions, Fry and Lean (1985) 6 FCR 578. On the other hand, in Victoria, it has been held that s 86 constitutes a code for curial challenge to a Magistrate’s order under s 83 and that other procedures cannot be invoked: Re Dalton (1995) 120 FLR 408 per Batt J at 411; Rose v Chief Commissioner for Police [2000] VSC 281 at [6] per Hedigan J. Neither Batt J nor Hedigan J referred to the Federal Court decisions as to the Administrative Decisions (Judicial Review) Act 1977 and it is unclear whether they were intending to indicate a view that recourse to the Administrative Decisions (Judicial Review) Act is not available.
Conclusion
For the reasons given above, I do not regard the warrant issued on 10 April 1980, although very old, to be invalid. I do however consider that the making of the application to the Chief Magistrate for the extradition of the applicant to Western Australia to constitute an abuse of the process of the Magistrates Court. The Chief Magistrate was therefore entitled to refuse the application on that ground. I therefore revoke the order made by the Chief Magistrate on 30 April 2004.
I will hear the parties as to further orders.