McDade v United Kingdom

[1999] FCA 865

FEDERAL COURT OF AUSTRALIA

McDade v United Kingdom [1999] FCA 865

EXTRADITION – appeal against dismissal of application for judicial review of magistrate’s decision as to eligibility for extradition – adjournment – want of legal representation – insufficiency of funds – competing factors – international obligations – limited adjournment granted.

Extradition Act 1998  (Cth) s 21(6)
Criminal Law Act 1977 (UK) s 1, s 15

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

FRENCH, MARSHALL and KENNY JJ
15 NOVEMBER 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, KENNY JJ

DATE OF ORDER:

15 NOVEMBER 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The hearing of the appeal is adjourned to 23 December  1999.

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, KENNY JJ
DATE:	15 NOVEMBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

FRENCH J:

1. This is a motion to adjourn the hearing of an appeal listed for hearing on 15 November 1999 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, a stipendiary magistrate, who is named as second respondent, determined that the appellant, Steven 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).

2. After filing of a Notice of Appeal the matter came on before Nicholson J on 2 October 1999 by way of motion for the grant of bail pursuant to s 21(6) of the Extradition Act. His Honour dismissed the motion but requested the District Registrar to list the appeal from Carr J’s decision as a matter of urgency. The appeal was listed for hearing today on that basis.  In the meantime, the appellant filed a motion seeking an adjournment of the hearing of the appeal and, associated with that, a motion for his release on bail pending the hearing of the appeal.

3. The Court heard from the appellant in relation to the adjournment question and counsel for the first respondent, instructed by the Director of Public Prosecutions, opposed that application.  In making his application, the appellant has relied upon affidavit evidence and also the oral evidence of a real estate agent, Mr Gibson.  In substance, the basis for the application for the adjournment is that the appellant is unrepresented. He has been legally represented up to now in relation to the proceedings prior to the hearing of the appeal and indeed represented to the point at which Nicholson J heard the bail application in October, but his funds have run out and that he has no legal representation at the present time.  He nevertheless says and it is not disputed, that he and his wife are the joint owners of land at 41 Hartington Way, Carine and that in respect of that land he has made an agreement with Samantha Jane Gibson, the daughter of the real estate agent to whom I have already referred, for the sale of a part of that land, designated Lot A, subject, of course, to subdivision of the block into Lot A and the remainder being approved.

4. It is not necessary to canvass the details, which we heard in evidence, of the approval process suffice it to say that on a reasonably optimistic view, the approval process could be expected to take between eight to ten weeks in the ordinary course.  The contract with Ms Gibson is expressed to be subject to finance and provides for finance to be confirmed within seven days of new titles being issued.  The amount of the finance being sought is $90,000 on a total consideration of $100,000.

5. The contention advanced by Mr McDade is that without legal representation on the hearing of the appeal, the hearing of the appeal itself is something of a charade as he could  have no intelligible input into it, the grounds of appeal relating to the sufficiency of the statement backing the request for extradition in terms of the requirements of subs 19(3)(c)(ii) and that he ought to have an opportunity, through the sale of the property, to acquire funds and instruct counsel accordingly.  Now, if an adjournment were to be granted on that basis, in effect, it would mean that the hearing of the appeal will be put off until the end of February or sometime in early March, or whenever the Perth sittings are set down.  It did emerge in the course of evidence, that Mr McDade had had an increase in his finances, by way of loan finance from the National Australia Bank in August 1999, of some $10,000 and it appears from what he has told us from the bar table in that respect, that the $10,000 has been applied to instruct solicitors in relation to a challenge to an immigration decision which is likely to be listed for hearing sometime in December.  Indeed, there was produced to the Court from Registry and shown to Mr McDade, a letter from his solicitors in relation to the immigration matter dealing with the availability of counsel who has been instructed in relation to that matter for a hearing in December.

6. For myself, I must say that I find this a difficult question to resolve.  There is no doubt that in a case of this kind, which is a matter of considerable seriousness in terms of its impact on the appellant, it is difficult to see how he could, notwithstanding his obvious fluency, make a substantial contribution to the argument of the grounds of appeal which have been formulated, evidently with legal advice, and that to maximise his prospect of his case properly being put to this Court, it is reasonably obvious legal representation is both desirable and necessary.

7. On the other hand, these proceedings have, for various reasons which we need not go into in detail at this stage, been delayed quite considerably in terms of the time since the initiation of the extradition process and the time by which the matter has got to this Court. Apart from the effects on the appellant himself and the impact of uncertainty and the possible further loss of liberty that extradition itself involves, there is also the question of Australia’s obligations to other States under its extradition treaties and the requirements of the Extradition Act.

8. When one looks at the basis upon which Mr McDade has proposed that he would have funding available for legal representation if only the hearing of the appeal were delayed until sometime next year, it must be said that it is subject to considerable uncertainty and contingency and, again speaking for myself, I could not say that it is more than an even bet that he will have the funding available to instruct solicitors within the time-frame of which we are talking.

9. However, there are other options which may not have been fully explored.  One of those options, as I put to him in the course of his submissions, was the possibility of providing security for the cost of his solicitors by way of some form of charge over the property that he and his wife jointly own in Carine.  Another option obviously involves the application of the $10,000 which has apparently been paid into the trust account of solicitors who are acting for him in the migration matter which is to be heard, it would appear, before a single judge sometime in December.  The urgency and importance of the extradition proceeding and its impact on him, I would have thought, was considerably greater than that in relation to the migration matter and it may be that at the appropriate time an application could be made for relisting the migration matter.

10. In my view, the appropriate course for us to take is to grant an adjournment but for a limited time in order to enable these other alternatives to be explored.  I am not satisfied that an adjournment for a period of three or four months is justified on the basis of the contingencies and possibilities associated with the sale of the land.  I would, however, be prepared to adjourn the hearing until 23 December, when each of the Judges of this Court is available to deal with it and would probably be available to hear it together in Perth, a good deal more satisfactory at the moment than the present arrangements.  For those reasons, I would grant the adjournment to 23 December 1999.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             

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, KENNY JJ

DATE OF ORDER:

15 NOVEMBER 1999

WHERE MADE:

PERTH

REASONS FOR JUDGMENT

MARSHALL J:

1. I agree with the reasons of French J and the order he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             

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, KENNY JJ
DATE:	15 NOVEMBER 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

KENNY J:

1. For the reasons given by French J, I agree that the matter should be adjourned to 23 December 1999 and that orders should be made accordingly.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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:	15 November 1999
Date of Judgment:	15 November 1999