Marks v Rooke

[1987] TASSC 65

Serial No 62/1987
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              MARKS v ROOKE [1987] TASSC 65; A62/1987

PARTIES:  MARKS
  v
  ROOKE

FILE NO/S:  127/1987
DELIVERED ON:  8 December 1987
DELIVERED AT:  Hobart
JUDGMENT OF:  Wright J

Judgment Number:  A62/1987
Number of paragraphs:  29

Serial No 62/1987
List "A"
File No LCA 127/1987

MARKS v ROOKE

REASONS FOR JUDGMENT  WRIGHT J

8 December 1987

1. The applicant applies pursuant to s19(1) of the Service and Execution of Process Act 1901 to review an order made by a magistrate in Hobart on 20 October 1987. The order provides for the return of the applicant to the State of Victoria in the custody of Detective Sergeant Haywood of the Victorian Police Force to stand trial in the County Court of Victoria on an indictment that he assaulted and occasioned actual bodily harm to Robert Lever on 30 November 1977 at South Melbourne. The application proceeded by way of rehearing upon the material before the learned magistrate, supplemented by brief additional facts agreed by counsel and two additional documentary exhibits which were placed before me by consent.

1. The applicant submitted that it would be unjust or oppressive to order his return to Victoria and that, accordingly, he should be discharged pursuant to s18(6) of the Service and Execution of Process Act 1901. It is plain that the respondent has satisfied the provisions of s18 (1) and (2) of the Act and unless the applicant's submissions are successful he should be returned to Victoria for trial. It is also plain that the onus is on the applicant to satisfy me on the balance of probabilities that it would be unjust or oppressive to return him to Victoria, (White v Cassidy (1979 – 1980) 40 FLR 249 at 251) and that any delay which may prima facie have relevance to the question of injustice or oppressiveness, save in the most exceptional circumstances, cannot be relied upon by the applicant if brought about by his own conduct. (Kakis v Government of the Republic of Cyprus [1978] 2 All ER, 634 per Lord Diplock at 638 (h – i) and White v Cassidy (supra) at 251.

1. By contrast, delay resulting from any other cause may be taken into account and, although Wells J in Carmady v Hinton (1980) 23 SASR 409 at 410 was at pains to point out the limited operation of estoppel in the area of public law, it seems that delay actually occasioned by the law enforcement authorities of the State applying for extradition may well have a decisive effect. (Carmady v Hinton (supra) per Wells J at 410 and per Williams AJ at 415 and Lucas v Lovatt, Cox J (43/83) and [1983] Tas SR 227).

1. In Kakis v Government of the Republic of Cyprus (supra) Lord Diplock said at, 638:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

1. This statement of principle has been accepted in the subsequent Australian authorities which I have already mentioned.

1. It was argued by Mr Hodgman QC on behalf of the applicant that it would be both unjust and oppressive to return his client to Victoria. He pointed out that it is now 10 years since the alleged offence was committed and he submitted that the prosecution case against the applicant is not a strong one. There is an obvious inference that the memories of all participants in the incident and the subsequent investigation are likely to be adversely affected by the passage of time. It is also plain that the applicant denied having assaulted Lever in a signed record of interview which took place on 26 January 1978 (wrongly noted as 1977 on the document itself) and apart from his admission that he was present during the course of the disputed events there is little, if anything, in the record of interview to implicate him in the assault.

1. It was submitted that Mr Eppel who was also present at the time of the alleged assault had not been interviewed by the police following the incident but this submission is, in my view, without sound foundation and should be rejected despite the Director of Public Prosecutions (Victoria) stating to the applicant's solicitors in a letter dated 26 November 1987: "At the present point in time we are not in possession of any statement from Eppel". That Eppel had been spoken to by the police following the incident in question may be clearly inferred from the content of the record of interview.

1. There is also a witness Joan Batch whose precise role is difficult to understand, but again drawing inferences from the record of interview it may be concluded that the applicant is alleged to have made some form of admission to her soon after the alleged assault.

1. Nonetheless there is no material upon which it can be positively asserted that Mr Eppel's or Miss Batch's evidence would significantly assist the prosecution case and thus one is left with the impression that, to a substantial extent, the outcome of any trial will depend upon the jury's view of the credibility of the complainant Lever on the one hand and the applicant Marks on the other.

1. It was also put to me that the unavailability of Dr Williams, who is now resident in Canada, the doctor who examined Lever following the alleged assault, may contribute to an unjust situation if extradition is granted. However it is clear that Dr Williams made records of his examination of Lever and that these are likely to be admitted under the provisions of Victorian legislation similar to ss.40A or 81B of the Evidence Act 1910 (Tas). It is also apparent that other doctors examined Lever soon after his injuries had been sustained and that these doctors would be available as witnesses if necessary. In these circumstances I would not regard Dr Williams' unavailability alone as a reason for anticipating an unjust outcome to the trial.

1. In Perry v Lean and Another (1983) 63 ALR 407 the South Australian Full Court focused attention on two important aspects of the "unjust" test under s18(6)(c). Firstly, as also mentioned by Wells J in Carmady v Hinton (supra), it relates to extradition between federated States in a single Commonwealth and secondly, it is primarily the extradition process itself which must be considered as being just or unjust rather than the potential course of the ensuing trial. In the special circumstances of Perry's case a majority of the Court held that a delay of 23 years was not "unjust". On the other hand the charge there was murder as compared with assault in the present case and the gravity of the charge itself is an important matter to bear in mind.

1. There was no evidence in the present matter suggesting that witnesses relevant either to the prosecution or the defence case, other than Dr Williams are unavailable and, after careful consideration, I am unable to conclude that there is any compelling reason to believe that it would be "unjust" in the circumstances to order the applicant's extradition to Victoria.

1. In considering the applicant's submission that it would be "oppressive" to return him to Victoria it is necessary to examine the history of the matter since his arrest. According to the evidence of Detective Sergeant Haywood the applicant was committed for trial on 22 March 1978. He was bailed to the Melbourne County Court. He failed to appear on 9 April 1979. A warrant was issued for his arrest on 18 April 1979. The applicant, who, also gave sworn evidence at the hearing before the learned magistrate said that in August 1978, he moved to Sydney "and I kept in contact with my lawyers and nothing had come up, we wasn't due to come up. And I think it was something like 17 months later that it came up before the County Court in Melbourne when I was living in Sydney, and I wasn't notified when it did come up". He continued, "I had Mr Galbally contact the authorities in Victoria and he informed me that he'd corresponded with the authorities in Victoria. He was told that there was no extradition warranted." This was apparently in March or April 1981. It was put to me by Crown counsel, Mr Melick, that I should approach the applicant's evidence as to this and other matters with caution, particularly in view of his criminal activities in New South Wales after 1979, but I point out that I have not heard the applicant in the witness box and have no foundation for making findings adverse to his credit based upon his demeanour. Furthermore, insofar as it may be relevant, the learned magistrate who did see and hear the applicant giving evidence orally, made no findings adverse to his credibility. In addition there is no area which has been drawn to my attention or which I have noted wherein he contradicted Sergeant Haywood who was the only other witness to give oral evidence. Consequently I have no basis for rejecting the applicant's evidence on these historical matters except insofar as there may be internal inconsistencies, contradictions, or inherent improbabilities, in what he said. 

1. From what the applicant said in the passages of evidence reproduced above, it appears that whereas the applicant was initially keeping in touch with Mr Galbally as to the proposed date of trial in Melbourne the later contact with him was in relation to whether or not extradition was warranted which suggests to me an attitude of mind by the applicant falling well short of an intent to comply voluntarily with any request or direction to return to Victoria for trial. Indeed, it clearly suggests to me that he was seeking advice to enable him to avoid that eventuality.

1. It is also plain from the applicant's evidence as to a criminal charge of rape brought against him in 1969 that to use his own words, he had been "on the run" attempting to evade going to trial on that charge for a period of 8 years thereafter. During that period he had used aliases including the names Raymond Shane Carmichael and Raymond Ronald Hudson. Whilst this period of his life is not directly relevant to the present proceedings, if taken in conjunction with his movements and name changes after leaving Melbourne in August 1978, it tends to show a pattern of behaviour which, if not deliberately calculated to throw pursuers off his scent, was at least likely to make their task of locating him at any given time, comparatively difficult. The applicant did say in his evidence that in 1979 he had offices in Hawthorn Road, Hawthorn, Victoria for 6 or 7 months but he did not say whether he personally frequented these premises or leased them in his own name. Consequently there is no really convincing evidence that he returned to Victoria for any period, or at least, any substantial period after moving his home to New South Wales in 1978. In cross examination, the applicant also conceded that after leaving Victoria he used further aliases on occasions. These included the names "Ray Blake", "George Ronald Townsend", "Kinane" and "Lance Raymond Hammond", the last of these being the name, or one of the names, by which he has been known since returning to Tasmania on 21 June 1987. He also gave evidence that he used the name of "Gordon Ronald Sinclair" whilst he was in New South Wales having changed his name to "Gordon Ronald Sinclair" by deed poll in February 1979. He obtained a passport in that name in February 1979 and travelled to the United States of America. He did not give evidence as to the duration of his journey overseas. In January or February 1981 he was charged in Sydney in the name of Gordon Ronald Sinclair with being an accessory before the fact in respect of a crime of false pretences and with conspiracy to cheat and defraud. On 24 June 1983, he was convicted of these offences and sentenced to 4 years' imprisonment with a non parole period of 18 months. After serving 12 months of that sentence he was released on parole.

1. He said that upon his arrest and also upon his conviction he "called in all warrants". This, I confess, is a phrase not previously known to me but it was explained by the applicant in the course of his evidence, in these words: "I asked them if there was any outstanding warrants". It was submitted to me that it could be inferred from this that the New South Wales police would have given information to police forces in other States from which they would have been able to recognise the applicant's identity, and if they were so minded, take steps to enforce any outstanding warrants or institute extradition proceedings against him. It was further submitted that in such circumstances the applicant would have been justified in regarding himself as no longer in jeopardy in relation to the assault charge. Had the applicant been charged and tried in New South Wales in the name of Marks and had he made more positive efforts to "call in" outstanding matters there may have been some substance to this argument, but as it is I am by no means surprised that the Victorian police were apparently not alerted to his whereabouts at these times.

1. Following shortly upon his release from prison in June 1984, he changed his name by a second deed poll back to Raymond Courtland George Marks. To what extent, if any, he used the aliases I have mentioned above after this date is not clear from the evidence.

1. On 8 February 1985 in response to enquiries made by Mr. Lever, the victim of the alleged assault in 1977, Sergeant Haywood prepared a report on the matter for the Chief Commissioner of Police in Victoria. In that report he suggested that extradition proceedings be commenced. At that time the applicant had apparently moved to Newcastle in New South Wales and this fact was known to Sergeant Haywood, but whether as a result of his enquiries at that time, or from earlier information received, I am unable to say. At all events, on 26 March 1985 the Director of Public Prosecutions for Victoria gave approval for extradition proceedings to be instituted.

1. When asked what he did thereafter Sergeant Haywood said:

"I didn't have to do anything. All I had to rely on was if any interstate member checked the man, he was known in the Central Australian records to be wanted for failing to appear at the County Court in Melbourne, and all I had to do from then on was wait until somebody was in contact and identified the man and informed us he was able to be possibly arrested, and then, the natural course of events then would be to send the wording for the issue of a provisional warrant, which is the way it ended up being in Tasmania. He was located here, and I sent the wording, and then he was arrested not long after."

1. On 31 May 1985 the applicant was charged in Newcastle with a breathalyser offence and on 26 September 1985 he was charged with a licensing offence and offensive behaviour. However, he was not gaoled on either charge and remained at liberty going about his affairs in an apparently normal and lawful manner. In July or August 1986 he moved to Perth in Western Australia with the approval of the New South Wales Parole Board. In Perth he was involved in a business enterprise of some kind connected with the America's Cup Challenge. After several months in Perth he moved to Marion, in South Australia for about 6 months. He managed the Glenelg Motel for 6 weeks of this period. From South Australia he came to Tasmania on 21 June 1987 where he stayed at the Tudor Inn Holiday Apartments near Berriedale for an unspecified period of time. He then took up residence for 2 weeks at Grosvenor Court at Sandy Bay and for about 3 weeks in a unit in Huon Road, South Hobart. On 14 October 1987 the warrant was executed at that address.

1. As will be seen from the foregoing recitation of events this was not a case such as Carmady v Hinton (supra) or Lucas v Lovatt (supra) where, upon enquiries and representations having been made to the relevant police force, the alleged offender had been given assurances that extradition proceedings would not be taken, and he had thereafter taken steps to change his lifestyle and rehabilitate himself, relying, at least in part, upon the assurances given to him.

1. It may be that some criticism can be levelled at those in the Victorian Police Force who have had carriage of this matter for not pursuing their quarry more diligently but taken at its highest, this criticism can only fairly be made as to the period between March 1985 and the date of the applicant's departure for Perth in 1986. It cannot in any event be said to have created in the applicant a genuine belief or expectation that the charge was to be abandoned. There is nothing which I can discern in the chronology of events or the way in which the applicant has conducted himself since 1979 which persuades me that he has assumed, or has been led to assume, that the assault charge would not proceed if he could be placed within the reach of the Victorian criminal justice network.

1. The applicant gave evidence that since coming to Tasmania he has been involved in the promotion of a rock music concert to be held in Glenorchy in January 1988. The evidence given before the learned magistrate as to this venture was sparse and vague but after enquiries made by Crown counsel during the course of the review before me, it was stated to me as a fact agreed by the parties that:

(a)$54,000 had been spent already by the applicant in making arrangements for the staging of the concert and that "most" of this amount consisted of his own personal funds, and

(b)if the concert cannot proceed because the applicant is in custody, he will lose $100,000 on the venture.

1. I was not told why the applicant's physical presence should be necessary for the concert to proceed but I am prepared to assume that this is so.

1. The above information is, no doubt, of considerable relevance to the question of oppressiveness now before me but I am of the opinion that s18(6) (c) (e) and (f), coupled with s19(5) of the Service and Execution of Process Act 1901 make it quite clear that a wide discretion may be exercised as to the time and the manner in which an apprehended person is returned to the prosecuting authorities. In this way, if any short term problems such as those just mentioned may be readily overcome, it plainly militates against characterising an order for his return as "oppressive". Furthermore, Mr Melick told me, without dissent or opposition by the applicant's counsel, that if the applicant is presented to the Court in Victoria and offers a personal recognizance and surety for his later appearance for trial on this charge, the prosecuting authorities in Melbourne will not oppose bail. Of itself, this undertaking could not remove oppressiveness or unfairness to the applicant and having regard to the observations of Jacobs and Mohr JJ in Perry v Lean and Another (supra), it may not even be directly relevant. Nonetheless it is a source of some reassurance that the applicant's liberty need not be drastically curtailed pending trial.

1. I have considered the facts of this case both from the point of view of possible injustice and oppressiveness. I have also considered the circumstances in relation to possible unfairness in the sense mentioned by Lord Diplock in Kakis v Government of the Republic of Cyprus (supra). I remain unpersuaded that from any of these perspectives it can be said that the applicant's extradition should be refused.

1. I therefore propose to order as follows:

(a)That after a period of 8 weeks expiring at 10.00am on the 2nd day of February 1988, the applicant be returned to the State of Victoria and, for that purpose, he be delivered into the custody of Detective Sergeant Robert Richard Haywood on Tuesday the 2nd day of February 1988 at 10.00am at the Supreme Court, Salamanca Place, Hobart.

(b)That until 10.00am on the 2nd day of February 1988 the applicant be released on bail in the sum of $1,000 in his own recognizance with a surety of a like amount acceptable to the respondent.

1. I propose an order in these terms on the basis that if the applicant voluntarily surrenders himself to Victorian authorities in Melbourne on the 1st February 1988 as suggested by Mr Melick the execution of the above order will become unnecessary and, upon it being mentioned before me at an appropriate time thereafter, it may be vacated.

1. I am also doubtful that I would have power to make an order requiring the applicant to present himself in Victoria at a specified time notwithstanding the broad powers conferred by the Service and Execution of Process Act 1901. In any event this question has not been debated before me and, having regard to the course I have suggested, it would appear to be unnecessary. However I will hear counsel further on this point before formally pronouncing the order I have foreshadowed.