McDade v United Kingdom

[1999] FCA 1860

FEDERAL COURT OF AUSTRALIA

McDade v United Kingdom [1999] FCA 1860

EXTRADITION – appeal against dismissal of application for judicial review – motion for adjournment of appeal hearing – following earlier limited adjournment – want of legal representation – balancing factors – need for expeditious disposition of appeal – adjournment refused.

Criminal Law Act 1977 (UK) ss 1, 15
Extradition Act 1988 (Cth)

STEPHEN GERARD MCDADE v THE UNITED KINGDOM and PETER MALONE
W103 of 1999

FRENCH, MARSHALL and KENNY JJ
23 DECEMBER 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W103 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

STEPHEN GERARD MCDADE
Appellant

AND:

THE UNITED KINGDOM
First Respondent

PETER MALONE
Second Respondent

JUDGE:

FRENCH, MARSHALL and KENNY JJ

DATE OF ORDER:

23 DECEMBER 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The Notice of Motion filed 20 December 1999 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W103 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

STEPHEN GERARD MCDADE
Appellant

AND:

THE UNITED KINGDOM
First Respondent

PETER MALONE
Second Respondent

JUDGE:	FRENCH, MARSHALL and KENNY JJ
DATE:	23 DECEMBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT
ON MOTION FOR ADJOURNMENT OF APPEAL

THE COURT:

1. The Court has convened today to hear an appeal against an order of Carr J made on 24 September 1999 in which his Honour dismissed an application for review of a decision under the Extradition Act 1998 (Cth).  In that decision, the stipendiary magistrate named as second respondent determined that the appellant, Stephen McDade, was eligible for surrender to the United Kingdom in relation to eighteen offences said to be contrary to ss 1 and 15 of the Criminal Law Act (1977) (UK).  The matter came on for hearing by this Full Court on 15 November 1999 and at that time the Court heard a motion to adjourn the appeal.

2. The history and circumstances surrounding that motion and the arguments marshalled in support of and against it are set out in ex tempore reasons for judgment given on that day.  In those reasons it was said that the appropriate course for the Court was to grant an adjournment but only for a limited time in order to enable alternatives for fund raising for the purposes of legal representation of the appellant to be explored.  The Court was not satisfied that an adjournment for the period of three or four months then sought by the appellant was justified having regard to the contingencies and uncertainties associated with the sale of land upon which he depended for organising legal representation.  We were, however, prepared at that time to adjourn the hearing until today when each of the Judges of this Court was again available to deal with it.

3. The Court had regard at the time both to the seriousness of the matter from the point of view of the appellant and also to the question of Australia’s obligations to other States under its extradition treaties and the requirements of the Extradition Act and the fact that for various reasons these proceedings and the extradition process have been unduly protracted.  In support of his motion for vacation of today’s hearing and relisting to a later sitting of the Full Court, the appellant has said in an affidavit that circumstances have changed since his previous application for an adjournment.  The hearing, he said, of the appeal was originally expedited because he was remanded in custody.  He had applied for bail and although he did not request an expedited hearing, his lawyer at the time of the bail application which led to the expedition order, failed to advise the Court of problems that would ensue if the hearing was expedited.

4. Since 15 November he says he has attempted to raise funds for this hearing by redirecting funds in the trust account of another solicitor.  He discovered then that these had been exhausted and that indeed further funds were being requested.  His wife unsuccessfully approached a number of legal firms in Perth to ascertain if any of their solicitors would represent him at the Full Court on the basis of payment from the eventual proceeds of the sale of land which was the subject of a subdivision application referred to on the previous occasion on 15 November.  In the event, he asked his barrister, who had formerly represented him before Carr J, if he would be prepared to represent him on the appeal on the understanding that he would be paid out of the proceeds of the funds from the sale of the land.  The barrister, he says, has now agreed to this.

5. Attached to his affidavit was a fax dated 17 December 1999 from Mr Aughterson confirming that he would be overseas from 19 December to 11 January and would not be available to represent him at the appeal set down for today but that he would be available on any day in February at which time there are further sittings of the Full Court of the Federal Court.

6. The Court has given this application for a further adjournment, which is opposed by the respondent, anxious consideration.  The respondent has made the point that it has on two occasions been fully prepared to argue the appeal, this being the second such occasion.  In the ordinary course, we would not give great weight to that particular consideration having regard to the importance of the matter from the point of view of the appellant.  However, the position in relation to the hearing of this appeal was made clear last time.  The longer adjournment had been sought at that time.  A shorter adjournment was granted.  It appears from Mr McDade’s answers to questions put to him by the Court that in fact he has known of the asserted availability of Mr Aughterson since 9 December.  This motion was filed on 20 December.

7. At this stage, the Court is of the view that having regard to all the factors that it has to consider, the balance is in favour of proceeding to hear and dispose of the appeal, and has regard in particular to the importance of ultimately expeditious disposition of the proceedings, to Australia’s obligations under its extradition treaties and to the opportunities that have already been provided to the appellant to arrange legal representation.

8. Of some significance in this case, in addition, is the fact that the appeal is, on the face of it, not one of great complexity and the issues are adequately identified in the notice of appeal which was filed on 1 October and which issues are fully canvassed in the judgment of the primary judge. 

9. The Court is of the view that at this stage the appeal should proceed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            

Mr S G McDade appeared in person.
Counsel for the First Respondent:	Mr E M Corboy
Solicitor for the First Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	23 December 1999
Date of Judgment:	23 December 1999