Mansell v Acting Magistrate Luxton and Anor (No.2)
[2010] FMCA 561
•29 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANSELL v ACTING MAGISTRATE LUXTON & ANOR (No.2) | [2010] FMCA 561 |
| ADMINISTRATIVE LAW – Administrative decision judicial review – warrant for arrest – extradition pursuant to that warrant – requirement for issue of warrant – whether such requirements met – whether the issuing magistrate had considered those requirements – relevance of statements not under oath – whether magistrate asked to order extradition had considered separate requirements of Service and Execution of Process Act – whether such determination was judicial or administrative – determination upon facts – order for proceedings to be remitted to original decision-maker for determination in accordance with law. |
| Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 6, 9A, 15A, 16, Schedule 1 (xa) Criminal Procedure Act 2004 (WA), ss.23, 30, 31 Service and Execution of Process Act 1992, s.83(8) Service and Execution of Process Act 1901, s.18 The Criminal Code (WA) Oaths Act (Qld) |
| R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Loveridge v Commissioner of Police for South Australia [2004] SASC 195 Ousley v R (1997) 148 ALR 510 George v Rockett (1990) 170 CLR 104 Coco v R (1994) 179 CLR 427 Lodkowski v Comcare (1998) FCA 158 |
| Applicant: | CAMERON JAMES MANSELL |
| First Respondent: | ACTING MAGISTRATE SCOTT LUXTON |
| Second Respondent: | COMMISSIONER OF QUEENSLAND POLICE SERVICE |
| File Number: | BRG 519 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 1 June 2010 |
| Date of Last Submission: | 6 July 2010 |
| Delivered at: | Townsville |
| Delivered on: | 29 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.W. Honchin |
| Solicitors for the Applicant: | Stevenson & McNamara |
| Solicitors for the First Respondent: | No appearance |
| Counsel for the Second Respondent: | Mr W. Pennell |
| Solicitors for the Second Respondent: | QPS Solicitor’s Office |
ORDERS
UPON THE COURT MAKING A DECLARATION THAT THE ARREST WARRANT ISSUED BY MAGISTRATE ROBERT YOUNG ON 13 MAY 2010 IN WESTERN AUSTRALIA IS INVALID
That the proceedings be remitted to Acting Magistrate Scott Luxton for determination in accordance with law.
That pursuant to section 15A of the Administrative Decisions (Judicial Review) Act 1977, a condition is imposed that the Applicant continue to be held in secure custody in the Watch-house of the Queensland Police Service at the Magistrates Court in Townsville.
That there be liberty to apply within 28 days in relation to any application for costs, with written submissions and, unless otherwise requested, for determination in Chambers.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRG 519 of 2010
| CAMERON JAMES MANSELL |
Applicant
And
| ACTING MAGISTRATE SCOTT LUXTON |
First Respondent
| COMMISSIONER OF QUEENSLAND POLICE SERVICE |
Second Respondent
REASONS FOR JUDGMENT
At the outset of the reasons that I intend to give in relation to this matter, I think it is appropriate that I should make some preliminary comments. Firstly, I should note that it is interesting that the ultimate result sought by each of the parties in relation to these proceedings, the applicant and the Commissioner of the Queensland Police Service, is that the matter of the extradition of the applicant, Cameron James Mansell, to Western Australia should be remitted to the Magistrates Court of Queensland at Townsville.
Both the applicant and the representatives for the Commissioner of Police say that the return should occur to that jurisdiction, but they say so for very different reasons. Both, however, accept that the appropriate place for such a determination is, at least in matters according to law, at the Magistrates Court. It is the appropriate place to deal with matters initially, certainly in respect of criminal issues arising under the legislation of either the Commonwealth, the States or the Territories.
Secondly, and I say this with all sincerity, I recognise and accept totally the good intentions and the very hard work performed within both the Magistrates Court and by the police officers of each of the States and Territories, as well as, of course, of the Commonwealth of Australia.
In respect of the Magistrates Courts in each of the States and the Territories, that Court deals with the vast bulk of the proceedings within the criminal courts, and within their jurisdiction, and the volume on some occasions certainly experienced by the Magistrates of those Courts must be overwhelming.
Similarly, the position of the police officers in each of the States and the Territories, as well as, of course, the Australian Federal Police, deal with all manner of most disturbing inquiries and the most horrendous aspects and outcomes of events within our society. It is understandable, therefore, that with those pressures and the overwhelming volume of matters that on occasions must come before the courts, and that are referred to the police, errors small and large may occur.
Thirdly, notwithstanding such pressures upon either the officers of the Court or the police officers required to investigate matters under the criminal law, each member of our community, from the highest to the lowest in the land, can expect no less than compliance with the law, and of course, the more serious the consequence for the individual, the more important the need to ensure that the law is applied in an even-handed manner and in a proper way in relation to all.
This then leads to the application that is now before me.
On 26 May 2010, an urgent application was filed on behalf of Cameron James Mansell. The orders sought within that application were for preliminary or interlocutory-type orders relating to the waiver of the payment of fees, and the abridgement of time for hearing of proceedings. However, more substantially, the orders sought were for an interlocutory order suspending the operation of the decision previously made by Acting Magistrate Scott Luxton, as well as for interlocutory orders staying any further proceedings within the Magistrates Court of Queensland at Townsville, based upon the warrant sought to be relied upon, and finally, and most significantly, a declaration that the extradition warrant was invalid.
Costs were also sought but have not really been the subject of issues for determination before me at this time. The grounds that were sought to be relied upon in relation to the matter were two-fold. The first ground related to what was said to be a denial of natural justice to the applicant, Cameron James Mansell, in that it was suggested that Acting Magistrate Luxton, in his decision, referred to judicial decisions and other uncited material, that had not been referred to by either party. As a consequence of that the applicant was not able to make submissions to the respondent Acting Magistrate addressing that material.
Secondly, it was contended that the other ground related to errors of law. It was submitted that the grounds in relation to errors of law involved particularly:
a)That the respondent, Acting Magistrate Luxton, erred in finding that the omissions on the face of the warrant did not vitiate the warrant;
b)That the Acting Magistrate Luxton erred in finding that the failure to securely attach the prosecution notice to the warrant, or refer to it within the warrant, (contrary to the Criminal Procedure Act 2004 (WA)), did not vitiate the warrant; and
c)That Acting Magistrate Luxton erred in finding that the warrant was not vitiated by its issue based upon an unsworn affidavit.
The application before me was brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977. On 26 May 2010, following argument, where of course I only heard from the legal representatives for the applicant, orders were made by me. Those orders were in short compass. They were as follows:
(1)That the operation of the decision of Acting Magistrate Luxton made on the evening of 25 May 2010 at the Townsville Magistrates Court be suspended.
(2)That any further proceedings in the Magistrates Court Queensland, based upon this warrant and the decision of Acting Magistrate Luxton be stayed.
Directions were:
(3)That service of the application filed on 26 May 2010 be effected forthwith upon the proper contradictor to the application currently before the court.
I should note at this time that the proper contradictor is acknowledged by all to be the Commissioner of the Queensland Police Service, and that the Commissioner now appears, represented by counsel. Additionally, pursuant to order 4 of the orders of 26 May 2010 it was ordered:
(4)That pursuant to section 15A of the Administrative Decision (Judicial Review) Act, a condition is imposed that notwithstanding a stay of the operation of the orders in this matter, that the applicant, Cameron James Mansell, continue to be held in secure custody in the Watch-house of the Queensland Police Service at the Magistrates Court in Townsville until further consideration of this application.
(5)That the application be adjourned for further consideration to today has occurred.
As is obvious from the orders that were made, they were – what might best be called “holding orders”. They were put into effect until such time as there could be a proper argument, which has now proceeded in relation to the application before the Court. Those orders were, however, necessary, because to not order a stay, or the suspension of the operation in relation to such orders, would be to render any successful application by Cameron James Mansell, nugatory.
In other words, if the challenge to the warrant was not able to be heard prior to the extradition that was sought pursuant to the warrant, then, to use the colloquial, “the horse would have bolted” in relation to these proceedings, in that the applicant would have been within the jurisdiction of Western Australia, and notwithstanding the basis upon his return to Western Australia, it would be, I would think, highly unlikely that there would be an easy transition back to Queensland.
It was appropriate, however, and orders were made prior to those orders, to ensure that Acting Magistrate Luxton be excused from further appearance in relation to these proceedings. It would certainly not have been proper for him to have been required to step into the arena of defending his decision, in relation to this matter. As I say, the proper contradictor is the Commissioner of the Queensland Police Service, and he is now before the Court. I should note also that an Amended Application for the order for review was filed by leave in relation to the proceedings today. There was no real change to the orders contained within the original application, but if you like, an additional head was provided in relation to the application. That related to reliance upon s.6 of the Administrative Decision (Judicial Review) Act.
The additional orders that were sought were in these terms. Alternatively, the first respondent engaged in conduct for the purposes of making a decision that:
(1)There was denial of natural justice in that the Respondent in his decision referred to judicial decisions and other uncited material that had not been referred to by either party, as a consequence of which the Applicant was not able to make submissions to the Respondent addressing that material.
(2)The decision involved errors of law, particularly
(a)the Respondent erred in finding that the omissions on the face of the warrant did not vitiate the warrant;
(b)the Respondent erred in finding that the failure to securely attach the prosecution notice to the warrant, or refer to it within the warrant (contrary to the Criminal Procedure Act 2004 (WA)) did not vitiate the warrant;
(c)that the Respondent erred in finding that the warrant was not vitiated by its issue based upon an unsworn affidavit.
It was important that such an alternative order was sought in relation to this matter because, as is argued on the part of the second respondent, there has been no decision made, and therefore, whether one of an administrative or judicial nature does not give rise, in any way, to a basis upon which there can be a review. The alternative gives rise to the possibility of there being a question as to the conduct of Acting Magistrate Luxton, in relation to giving rise to an administrative decision, or a finding which would be the subject of review.
The determination now before me, therefore, relates to the jurisdiction of this Court, and if found to have jurisdiction, whether there is a basis to find that any decision of Acting Magistrate Luxton was one of an administrative nature. Should both of those particulars be found in the affirmative, then the final step is to determine if any administrative decision was unfounded because, as suggested, there was a breach of the rules of natural justice or error of law.
Sections 5 and 6 of the Administrate Decision (Judicial Review) Act is the starting point in relation to this determination. Section 5, at least insofar as it is relevant to this application, is in the following form.
5(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds;
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision; and
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
Section 6 is, in fact, in similar terms, but as I referred to in relation to the amendment, which was allowed in relation to the application, deals with the issue of conduct. Section 6 is in these terms:
6 (1)Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any or more of the following grounds:
And again, relevant, in relation to the proceedings are sub-sections (a) and (f), which relate to:
(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur in connection with the conduct;
(f) that an error of law has been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision.
In other words, there is obviously consideration of whether there is an administrative decision to be dealt with in relation to the proceedings.
In that regard, I note the contents of para.160-055.30 of the High Court and Federal Court of Australia, Practice and Procedure. It is in these terms under the heading, ‘Construction of s 5 generally’:
The provisions of s 5 are to be construed by reference to the common law, but it is important to appreciate that what is being dealt with is the scope of the relevant power and the legal limitations on its exercise: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45.
The commentary then goes on:
The courts will not allow the section to be used as a back-door approach by appellants wishing to appeal on the merits of the case.
Additionally, it says:
In evaluating applications under s 5 of the Judicial Review Act, the court ought to study the decisions “carefully but sensibly, and not zealously in pursuit of error”: Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554.
And additionally, they say:
The court should not approach the construction of a decision “minutely and finely with an eye keenly attuned to the perception of error”.
But it is noteworthy, that whilst there should not be an application considered, if you like, on the merits of what has been before the Court, a further consideration must also be looked at.
In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40, Mason J expressed a similar view. However, he said that questions of weight may become relevant as a basis for setting aside an administrative decision when it can be shown that a decision is “manifestly unreasonable”.
Similarly, in commenting upon the provisions of s.6 of the Act under the heading, ‘Scope of s.6’, reference is made not only to those earlier matters but also a quote is taken from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 26. There, Mason CJ said:
In its setting in s 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character.
Mason CJ then goes on:
A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice, would amount to “conduct”. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.
I comment, specifically in relation to those two points, because I think that it is important that it be understood that where, in fact, a decision was made by Acting Magistrate Luxton or whether, in fact, it was simply part of the steps or process in relation to the final decision to be made, as it was suggested pursuant to the provisions of section 83(8) of the Service and Execution of Process Act, if it is found that there was, for example, a breach of the rules of natural justice in relation to that decision-making process, or that process generally, then it is something, if it were an administrative decision, which would be the subject of consideration by this Court.
There is therefore a power in the Court to make appropriate orders if there is an administrative decision and the jurisdiction is not limited. In that regard, I note that I have been assisted by the outlines provided by the legal representatives for both parties in relation to this matter. In particular, I was referred by counsel for the Applicant to the decision of White J in Loveridge v Commissioner of Police for South Australia [2004] SASC 195. It notes that White J held:
…that a decision under s83 of the Service and Execution of Process Act was administrative in nature.
His Honour went on to identify that the position with the previous relevant section – s.18 of the Service and Execution of Process Act 1901 – the counter-part of s.83, as it now stands, was that it was also held to be administrative in nature. In other words, there is clear authority to indicate that the steps taken under the Service and Execution of Process Act, including consideration of a warrant as well as consideration of whether extradition, in accordance with that warrant should occur, is not a judicial determination but is an administrative determination. That was, if you like, the thrust of the argument before me in relation to this matter.
Argument flowed over the construction of what should occur in relation to these proceedings and how I should, or should not apply both the provisions of s.9A of the Administrative Decisions (Judicial Review) Act and schedule 1 to the Administrative Decisions (Judicial Review) Act. I should first address the issues that arise in relation to the schedule to the Administrative Decisions (Judicial Review) Act.
Section 3 of the Act relates to a determination of how the Court assesses its position in relation to these proceedings. Section 3, at least insofar as relevant, says:
(1) In this Act, unless the contrary intention appears:
“decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.
In that regard, I am referred particularly by counsel for the Commissioner of the Queensland Police Service to the provisions of Schedule 1, and in particular, part (xa), which relates to decisions to prosecute persons for an offence against a law of the Commonwealth, a State or a Territory. It is in these terms:
(xa) decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory;
Note: An application under this Act in relation to other criminal justice process decisions cannot be heard or determined in certain circumstances: see section 9A.
It was argued strongly on the part of the Commissioner, therefore, that the fact that a decision was made by some person in authority to prosecute is sufficient in relation to this matter.
In that regard, I note that in the affidavit filed by leave today, under the hand of Craig Alexander Stephen, a police officer of Western Australia, that Mr Stephen says at paragraphs 10 and 11 the following:
On the basis of my review of the evidence obtained during the police investigation into Mr Puddy’s murder and upon receiving advice from Mr Fiannaca SC, on 13 May 2010 I decided to prefer a charge of murder under section 279 of the Criminal Code (WA) against Mr Mansell.
He then goes on:
Before Mr Mansell was able to be arrested and charged for Mr Puddy’s murder by the WA police, he left the State of Western Australia.
It is contended, therefore, that the decision taken by the police officer Mr Stephen to prefer a charge of murder under s.279 of the Criminal Code against Mr Mansell, means that pursuant to schedule 1 of the Administrative Decision (Judicial Review) Act, that there is a limitation, or exclusion as to the power of this Court. With respect, I cannot accept that that is the case.
The argument on behalf of the Commissioner is, in my view, somewhat misconstrued. The reference to a decision is to a decision made by, in this instance, a police officer in Western Australia to prosecute and the reference to a preclusion in relation to such a judicial review of such administrative decision relates to, in my assessment at least, the decision of the police officer to prosecute.
It is not, if you like, able to be relied upon in relation to suggesting that there is a causal link between that decision taken by the police officer, and the final determination in relation to whether or not the warrant that was issued is valid. To suggest that a state of mind formed by Mr Stephen, a police officer in Western Australia, precludes or precluded judicial review of an administrative decision of a Magistrate in Queensland relating to the validity of a warrant, stretches the connection beyond breaking.
In my view, sch.1 pt.(xa) is not relevant in relation to the determination of this proceeding.
The question of jurisdiction and whether there is any limitation in relation to same arises pursuant to the provisions of s.9A of the Administrative Decision (Judicial Review) Act. Section 9A is in these terms:
(1) Subject to subsection (2), at any time when:
(a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court, or;
(b) an appeal arising out of such a prosecution is before any court;
no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.
(2) Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth or of a State or Territory.
I should note that at least from the perspective of the applicant in these proceedings, it is contended that at the present time there is no prosecution for an offence against a law of the Commonwealth, or a State or a Territory, but I shall come to that a little later in these reasons. Section 9A then continues:
(3) Where subsection (2) applies, the prosecutor may apply to the court for a permanent stay of proceedings in the hearing and determination of the application and the court may grant such a stay if the court determines that:
(a) the matters that are the subject of the application are more appropriately dealt with in the criminal justice process; and
(b) a stay of proceedings will not substantially prejudice the applicant.
(4) In this section:
“appeal” includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.
“related criminal justice process decision”, in relation to an offence, means:
(a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:
and relevant here -
(iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant.
In that regard, I was again referred by all to the comments that were made by the then Attorney General at the time of the reading in relation to the addition of s.9A to the Administrative Decision (Judicial Review) Act. Section 9A is entitled Limitation of jurisdiction to review related criminal justice process decisions. It was introduced in 2000. As to the introduction of s.9A, the Federal Attorney General at the time, Daryl Williams, in the second reading speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, schedule 2 said the following:
The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.
A little later, the Attorney General said:
Defendants will not at any time be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that Act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.
And so, the question now to be determined is whether a prosecution has commenced because, of course, if it has then quite clearly s.9A precludes the jurisdiction of this Court. It is the real issue for determination in relation to this matter, and it comes back to questions in respect of the construction of the warrant, and the basis upon which the warrant, which is sought to be relied upon, came into existence.
In that respect, I have been provided, understandably, with copies of the Criminal Procedure Act 2004 of Western Australia, and in particular various sections of that Act. Section 23 is in these terms, headed:
23. Prosecution notice, formal requirements of
(1) Schedule 1 has effect in relation to prosecution notices and charges in them.
(2) A prosecution notice must -
And of course, that word “must” continues to arise in relation to much of what is said under the Criminal Procedure Act 2004:
(a) be in writing in a prescribed form;
(b) comply with Schedule 1 Division 2;
(c) contain any information prescribed; and
(d)be signed in accordance with subsection (3) and, if necessary, subsection (4).
Subsection (3) is in these terms:
(3) A prosecution notice must -
(a) if the prosecution is being commenced by an authorised investigator, either –
(i) be signed by the investigator alone; or
(ii) be signed by the investigator in the presence of either a JP or a prescribed court officer.
I do not intend to delve into lengthy commentary in relation to such matters. Suffice it to say that there are mandatory requirements in relation to the prosecution notice, not the least of which is that it must be signed either by the investigator alone, or by the investigator in the presence of either a Justice of the Peace of a prescribed court officer, and that has not occurred. The prosecution notice sought to be relied upon in relation to these proceedings was unsigned.
Section 30, headed Summons Court Hearing Notice or Warrant Issue of, is in these terms:
(1)An authorised investigator must not, under section 28 or 29 personally issue:
(a) a summons unless it complies with section 32(1); or
(b) a court hearing notice unless it complies with section 33(1)
and unless the date stated in the summons or notice as the date when the court will deal with the prosecution notice is a date nominated by a prescribed court officer
(2)A JP or prescribed court office to whom an application is made under section 28 or 29 must not issue:
(a) a summons unless it complies with section 32(1); or
(b) a court hearing notice unless it complies with section 33(1.)
(3)Failure to comply with subsection (1) or (2) does not invalidate the summons or court hearing notice but may be grounds for adjourning the prosecution.
Though those particular sections, or subsections, are not specifically relevant in relation to this issue it is important to note that sub-s.(3) relates to the fact that a failure to comply with the requirements does not invalidate the summons or court hearing notice, but may be grounds for adjourning the prosecution because, as I read the legislation, no such “get-out-of-jail clause” is available in relation to the issues which relate to an arrest warrant. Section 30(4) is in these terms:
A magistrate to whom an application is made under section 28 for an arrest warrant for an accused for a charge of an indictable offence must not issue the warrant unless satisfied -
(a) that the prosecution notice containing the charge complies with section 23, and
(b) that there are reasonable grounds to suspect the accused committed the offence, and
(c) that:
(i) there are reasonable grounds to suspect that, if a summons were issued in relation to the prosecution notice, the accused would avoid service of the summons or would not obey the summons, or
(ii) the issue of the warrant is justified under subsection 5.
Section 30(4)(a) then goes on:
A magistrate to whom an application is made under section 28 for an arrest warrant for an accused for a charge of a simple offence must not issue the warrant.
Sub-section (5), which is referred to in relation to indictable offences, is in these terms:
The issue of an arrest warrant for an accused is justified if -
(a)There are reasonable grounds to suspect that if the accused were not arrested the accused -
(i) would commit an offence;
(ii)would continue or repeat an offence charged in the prosecution notice;
(iii)would endanger another person’s safety or property; or
(iv)would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to the accused or any other persons;
I should note here that I accept unconditionally the position that was taken by the Western Australian police officers in relation to this matter, and to the very real concerns that they had in respect of the applicant in these proceedings. The fact is that the very actions that appear to have occurred on the face of it, would indicate that the concerns that were expressed, as a reflection of s.30(5) were genuinely held. But, unfortunately, in my assessment, they do not comply with mandatory requirements that are set out and have already been referred to by me, in relation to both s.23 and s.30.
Similarly, a warrant for an accused’s arrest is specifically referred to in s.31 and includes the words “contents, et cetera.” Again, the mandatory requirements arise in relation to the matter:
(1)An arrest warrant for an accused must -
(a) be in a prescribed form;
(b)if issued in the first instance, must form part of or be attached securely to a copy of the prosecution notice to which it relates;
(c)if issued after the accused has been served with a prosecution notice, must identify the prosecution notice or the charge or charges in it or be attached securely to a copy of it;
(d)require the person who arrests the accused to bring the accused before the court as soon as reasonably practicable after doing so,;
(e) contain any information prescribed; and
(f) be signed by the magistrate who issues it.
(2)As soon as practicable after a person arrests an accused under an arrest warrant the person must give the person a copy of the prosecution notice to which the warrant relates.
Quite clearly, their prosecution notice had not previously been served upon the applicant in relation to these proceedings. What was required, therefore, was pursuant to s.31 that the prosecution notice be attached securely to the copy of the arrest warrant and, secondly, and though it was not necessarily pressed in relation to the matter, there must be, one would think, compliance also with s.31(2) of the Criminal Procedure Act 2004, in that there must be evidence that the accused was given a copy of the prosecution notice to which the warrant relates.
I note, in that regard, that the affidavit filed today by Acting Inspector Miles of the Queensland Police Force makes reference to the direction given by him in relation to the arrest and taking into custody of the applicant in these proceedings, but does not make reference to the requirement pursuant to the Western Australian legislation of it being the case that the prosecution notice was given to the applicant.
Accordingly, what I am then required to do is to determine whether the steps taken by Acting Magistrate Luxton in relation to this matter properly, or fully, address what is required in relation to the proceedings.
Firstly, there must be consideration of whether the determination made by Acting Magistrate Luxton was in accordance with the law and met with the requirements that fell upon him. In that regard, I was referred to the comments by McHugh J in Ousley a High Court decision 148 ALR 515. At page 532 McHugh J made the following comments:
Since this court’s decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. In Coco, the court held that the Supreme Court judge, acting as persona designata who had made an order authorising the installation of a listening device, had “misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction”. It is true that the court said that the “error might also be characterised as an error on the face of the record” and that the Crown accepted that the existence of the warrant “did not preclude an attack on its validity in these proceedings in order to determine whether evidence obtained by use of a listening device was admissible against the appellant”. But the important point for present purposes is that this court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue.
Quite clearly there is an obligation in relation to the enforcement of a warrant or further steps to be taken in relation to a warrant, particularly when such issues are directly raised, to consider whether the jurisdictional basis upon which the warrant was issued, that being the warrant issued in Western Australia for the arrest of the applicant, included or contained jurisdictional issues.
I am satisfied that that is the case in relation to this matter and that, therefore, in the exercise of his administrative decision with regard to this matter, Acting Magistrate Luxton was required to consider the steps that were taken in relation to the issue of the warrant.
Additionally, I was addressed particularly in relation to issues with regard to the denial of natural justice. It was contended on the part of the Commissioner for Police that there was no denial of natural justice in relation to this matter; however, it is clear having now had made available to me the reasons, that Acting Magistrate Luxton did make reference both to decisions of the Court and to unidentified articles, or papers, upon which he relied for the purposes of his decision, in relation to the validity of the warrant.
In that regard, I am mindful of the decision of Goldberg J of the Federal Court in Lodkowski v Comcare where his Honour held that natural justice could be obtained where an issue the Tribunal intended to rely upon was raised with the parties so that submissions could be made. Such an action may be interpreted as a failure to allow counsel to respond and it is, therefore, submitted on the part of the applicant that the Court, in that case, Acting Magistrate Luxton should have given the parties and, in particular, the legal representatives for the applicant, an opportunity to respond to the matters that Acting Magistrate Luxton had identified as relevant.
To fail to do so is a fundamental failure of the rules of natural justice, particularly when one considers that the consequences which would befall the applicant in relation to these proceedings, if it were found that the warrant was valid, as was found by Acting Magistrate Luxton, would be so significant as to require and effect his extradition to Western Australia.
I do not intend to go at length through the other matters that were raised in relation to this matter, and which were indicated to be matters of concern.
The failure to attach the prosecution notice was a significant matter. As I referred to the provisions of the Criminal Procedure Act 2004 (WA), there are strict requirements and determinations to be made in relation to such matters. They were not clearly attached in relation to the warrant, and one would, again, have considered it appropriate for Acting Magistrate Luxton, in the exercise of his administrative decision, to have considered the basis upon which the warrant was issued.
I am concerned, obviously, that what has occurred in that regard, gives rise, again, to an issue as to whether Acting Magistrate Luxton has properly exercised the requirements in relation to the determination in respect of these proceedings.
Finally, it is in my assessment important that consideration be given to the issue of the affidavit that was relied upon at the time of the warrant being obtained in Western Australia. The fact is, that there is a clear requirement in relation to the exercise of the discretion of the Magistrate, that there must be a proper basis and information upon which the warrant can issue.
The affidavit of the police officer, Mr Stephen, is not signed by that police officer. It is signed by a Justice of the Peace but, apparently, and, it would seem, fundamentally, that is contrary to the Justice of the Peace’s obligations, and certainly contrary to, at least, as I understand them, the provisions of the ‘Oaths Act’. The oath is taken, and the proper questions are asked, the signature of the deponent is witnessed as being signed in the presence of the Justice of the Peace, and only then does the Justice of the Peace sign the affidavit as witness.
It is an important consideration, because if the affidavit is not sworn, then there is no real evidence before the Court. In that regard, I note, and I noted on the last occasion that this matter was before me, a concern with regard to the affidavit. If there was no affidavit and, therefore, sworn evidence, there was no basis upon which the Magistrate, properly exercising his discretion in Western Australia, could have determined that a warrant should issue.
In George v Rockett (1990) 93 ALR 483, the High Court in a unanimous joint judgment concluded that for a Magistrate to be satisfied of the grounds for the issue of a warrant, that satisfaction must be based upon at common law information on oath. Section 30(4) of the Criminal Procedure Act (WA), required the magistrate to:
Not issue the warrant unless satisfied.
In George v Rockett, the Full Court concluded:
In the absence of information in the sworn complaint which might have satisfied the magistrate as to the existence of reasonable grounds for Rockett’s belief, the magistrate had no power to issue the warrant. The warrant is invalid.
In my assessment, unfortunately, it is a situation where exactly the same considerations arise in this matter. Once such issues were raised at the time of the extradition being sought, it was incumbent upon Acting Magistrate Luxton to inquire as to the legitimacy of the warrant sought to be relied upon.
Such matters had then to be dealt with. The mandatory nature of the Criminal Procedure Act 2004 (WA), in respect of form and substance and the basis, upon which a Magistrate, properly exercising his discretion, could issue a warrant, cannot and should not be ignored. Failure to sign the prosecution notice, failure to attach the prosecution notice to the warrant, or to swear the affidavit which provides the evidentiary base upon which the warrant issues, means that the warrant should not ever have issued and, having issued incorrectly, is invalid.
I am satisfied that that is the only proper finding in relation to this matter. I turn, then, to the provisions of s.16 of the Administrative Decisions (Judicial Review) Act, and to the powers of the Court in respect of applications for an order for review. Section 16 is in these terms:
(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d)an order directing any of the parties to do, or to refrain from doing, any act of thing the doing, or the refraining from doing, of which the court considers necessary to do justice between the parties.
What is sought on the part of the applicant in relation to these proceedings is, firstly, a declaration as to the validity of the warrant sought to be relied upon, and which was the subject of the administrative decision by Acting Magistrate Luxton on 25 May 2010. It is proper, in light of the determination that I have made in relation to this matter, to make such a declaration.
I note also, of course, that any orders that might be made in relation to such a matter are able to be, at the discretion of the Court, directed to be continued. I note that on the previous occasion, pursuant to the provisions of s.15 of the Administrative Decision (Judicial Review) Act, a condition was imposed that, notwithstanding the stay of the operation of the orders in this matter, that the applicant Cameron James Mansell continue to be held in secure custody in the Watch-house of the Queensland Police Service at the Magistrates Court in Townsville until further consideration of the application.
I would think, in light of the fact that the matter has been remitted to the Magistrates Court, and that both parties, through their legal representatives, have indicated that a certain course may or may not be taken in relation to the proceedings, that it is appropriate that the applicant Cameron James Mansell should continue to be held in secure custody in the Watch-house of the Queensland Police Service at the Magistrates Court in Townsville, until such proper determination by the appropriate court officer of the position with regard to this warrant, or any further warrant that may have issued or be issued.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 29 July 2010
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