Nguyen v Critchlow

[2000] NSWSC 1145

CITATION:	Nguyen v Critchlow & Anor [2000] NSWSC 1145
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11489/2000
HEARING DATE(S):	30/10/2000
JUDGMENT DATE:	8 December 2000
PARTIES :	Thi Kim Loan NGUYEN v Robert Anthony CRITCHLOW & M. RANDALL
JUDGMENT OF:	Ireland AJ at 1

COUNSEL :	Mr P. Faris QC with Mr G. Jones for the Plaintiff Mr D. Fagan SC with Mr N. Williams for the First Defendant
SOLICITORS:	Ellinghaus & Lindner, Victoria for the Plaintiff Andrew Adams, National Crime Authority for the First Defendant
CATCHWORDS:	Plaintiff arrested and charged in Victoria on conspiracy to traffic in large commercial quantity of prohibited drugs. Conspiracy per taped telephone conversation. - Whether later First Instance Warrant for arrest issued in N.S.W. constitutes abuse of process.
LEGISLATION CITED:	Drugs, Poisons & Controlled Substances Act 1981 Crimes Act 1914 (Cth) Justices Act 1902 New Zealand Justices of the Peace Act 1927 Extradition Act 1988 (Cth)
CASES CITED:	R v Garcia 85 A CrimR 151 Pearce v The Queen (1998) 194 CLR 610 at 614 R v Peters & Heffernan 83 A CrimR 142 at 149 Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 Lego Australia Pty Ltd & Ors v Paraggio & Ors (1994) 53 FCR 542 Garrard v Email Furniture (1993) 32 NSWLR 662 Puglisi v Australian Fisheries Management Authority & Ors (1997) 148 ALR 393 at 400 McArthur v Williams (1936) 55 CLR 324 Love v Attorney-General NSW (1990) 169 CLR 307 Ousley v The Queen (1997) 192 CLR 69 Kenneally v New Zealand 166 ALR 625 Whitlam v Sanke (1976) 2 NSWLR 570 The Queen v Adamson (1875) 1 QB 201 Johanson v Dixon & Anor (1979) 25 ALR 65 Kioa v West (1985) 159 CLR 550 Grech & Anor v Minister for Immigration
DECISION:	Summons (as amended) dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: IRELAND AJ
DATE: FRIDAY, 8 DECEMBER, 2000

11489/2000 Thi Kim Loan NGUYEN - v Robert Anthony CRITCHLOW & M. RANDALL
JUDGMENT

1 HIS HONOUR: By amended Summons filed 30 June, 2000 the plaintiff, Thi Kim Loan Nguyen seeks orders and a declaration against Robert Anthony Critchlow, the first defendant who was the informant in the issue of a First Instance Warrant to apprehend the plaintiff issued on 28 July, 1999 by M. Randall JP who is the second defendant.

2 By notice of appearance filed 29 June, 2000 the second defendant appears and submits to the order of the Court, save as to costs.

3 The relief sought by the plaintiff is the following:

1. (a) The warrant was obtained without admissible
evidence.

Alternatively

(b) the warrant was obtained contrary to law.

Alternatively

(c) in obtaining the warrant the informant failed to

disclose material facts to the issuing Justice.

Alternatively

(d) insufficient information was laid before the issuing

Justice.


Alternatively

(e) the warrant was obtained contrary to the provisions
of s 23 of the Justices Act 1902.

2. A declaration that the said warrant be declared invalid.

3. Liberty to apply on 48 hours notice.

4. Costs.

5. Such other orders as the Court sees fit.

4 The plaintiff relies upon the affidavit of Rainer Michael Ellinghaus sworn 30 June, 2000. Mr Ellinghaus is a barrister and solicitor of the Supreme Court of Victoria who is, for present purposes, the solicitor acting for the plaintiff. There is no objection taken to this evidence.

5 Mr Ellinghaus deposes on information and belief, that on 8 February 1999 the plaintiff was arrested by John Francis Cafferkey ("the Informant") at Keysborough in the State of Victoria. She was taken to premises at 1 Luke Court, Keysborough where a search warrant was executed with regard to the suspected presence of drugs. No drugs, poisons or controlled substances were found on those premises.

6 The plaintiff was conveyed to the National Crime Authority office situated at 340 Albert Street, East Melbourne where a taped record of interview took place. The plaintiff received advice from Mr Ellinghaus to answer all questions "no comment on legal advice".

7 Certain allegations were put to the plaintiff in accordance with what is said to be a permissible procedure by investigating police officers in Victoria notwithstanding the plaintiff's indication that she did not wish to answer questions. The matters put to the plaintiff related to taped conversations which had been obtained by way of telephone intercepts of conversations by her with her de facto, one Duncan LAM Sak Cheung ("LAM"), whilst the plaintiff was in Melbourne and LAM was in Sydney.

8 Following completion of the taped record of interview the plaintiff was charged that at Melbourne on 29 January, 1999 whilst not being authorised or licensed under the Drugs, Poisons and Controlled Substances Act 1981, she did conspire with Duncan LAM Sak Cheung and diverse persons unknown, to traffic in a drug of dependence, namely diacetyl morphine (heroin). A commercial quantity. The plaintiff was also charged that at Melbourne on 7 February, 1999 whilst not being authorised or licensed under the Drugs, Poisons and Controlled Substances Act 1981, she did conspire with Duncan LAM Sak Cheung and diverse persons unknown, to traffic in a drug of dependence, namely diacetyl morphine (heroin). Commercial quantity.
9 The plaintiff was granted bail to appear at the Melbourne Magistrates' Court on 1 March 1999. Before the plaintiff's bail was fixed, the Informant, John Francis Cafferkey told Mr Ellinghaus that the plaintiff would be charged with the same offences in the State of New South Wales with other defendants.
10 Since receiving bail the plaintiff has reported daily to police in Victoria except for a period of some six weeks during which she gave birth to her youngest child by Caesarian section together with a period of convalescence during which the reporting conditions were suspended. The plaintiff is the mother of three small children aged three years, two years and one year. The youngest child being the issue of her relationship with her de facto Lam. Thereafter an application by the plaintiff to have her reporting conditions varied was opposed by the National Crime Authority.
11 Mr Ellinghaus deposes in his affidavit to his belief that the only evidence concerning the plaintiff's involvement in the charges laid is that to be found in the taped telephone intercepts relating to conversations between the plaintiff and her de facto Lam between 26 and 29 January 1999 and a further conversation on 7 February 1999.
12 On 9 February 1999 a First Instance Warrant for the apprehension of the plaintiff was issued on the application of Detective Senior Constable Birley by M. Knock JP at Sydney Central Court in the State of New South Wales.

13 On 1 March, 1999 Mr Ellinghaus attended the Melbourne Magistrates' Court with the plaintiff to find that the hearing of her charges was not listed. Neither the Informant, John Francis Cafferkey nor any other representative of the N.C.A. or the Victorian Office of Public Prosecutions was in attendance. Mr Ellinghaus made enquiries with representatives of the Commonwealth Office of Public Prosecutions and with the Victorian Office of Public Prosecutions at the Court. These persons had no knowledge of the Victorian charges pending against the plaintiff. Arrangements were made for the creation of a Court file regarding the plaintiff and the further hearing of the Victorian charges were adjourned to 29 March 1999, the plaintiff's bail being extended.

14 Between 13 March and 25 March 1999 Mr Ellinghaus had a number of discussions with Mr Michael Birley of the N.C.A. during which, on 25 March 1999 he was informed of the existence of the First Instant Warrant which had been issued by M. Knock JP on 9 February 1999.

15 Mr Ellinghaus deposed in paragraph 14 of his affidavit:

" I in essence indicated to him that if the plaintiff had no choice other than to comply with that warrant that I would advise her to agree to be remanded to Sydney to a proposed date of 6 April, 1999, subject to her bail continuing and further subject to her not being physically required to appear in Sydney on that date. I also informed him that I had no instructions about the matter from the plaintiff at that stage".

16 On 29 March 1999 at a further status hearing of the plaintiff's Victorian charges in the Melbourne Magistrates' Court, the first instance warrant issued by M. Knock JP on 9 February 1999 was served on the plaintiff. The plaintiff's bail in respect of her Victorian charges was extended and she was remanded to appear on 6 April 1999 at Central Local Court, Sydney on the First Instance Warrant No. 27/99 issued on 9 February 1999.

17 The presiding Magistrate imposed a special condition that "defendant not required to answer bail in Sydney subject to production of medical certificate re pregnancy by arrangement."

18 Mr Ellinghaus deposed (para 16) that:

"On the 29th day of March 1999 when I appeared on behalf of the plaintiff I informed Her Worship and Mr Siracusa from the Victorian Office of Public Prosecutions who appeared on behalf of the N.C.A. on that day, that the plaintiff proposed to give consideration to whether or not the withdrawal of charges brought against her in Victoria could be opposed and Mr Siracusa indicated to Her Worship that a withdrawal of the Victorian charges was intended at some time in the future and would most likely occur at the next Committal Mention, which was adjourned by Her Worship to 3 May 1999…"

19 Mr Ellinghaus notes in this paragraph that in his affidavit sworn 30 June 2000 (and re-sworn 3 July 2000) Detective Sergeant Peter Glen Baker, upon whom the first defendant relies, makes no mention of the events deposed to in paragraphs 15 and 16 of Mr Ellinghaus' affidavit and goes on to state "…which incorrectly asserts that the matter of the plaintiff's extradition to New South Wales was not opposed".

20 Mr Ellinghaus deposes (in para 17) that on 6 April 1999 he appeared on behalf of the plaintiff in Sydney Central Local Court. The presiding Magistrate found that in respect of the warrant issued on 9 February 1999 by M. Knock JP, that there being nothing before the Court in respect of the plaintiff, nothing could be done by the Court regarding that warrant and accordingly no orders could be made regarding the plaintiff. In response to a letter from Peter Glen Baker of the National Crime Authority dated 15 November 1999 directed to Ms Anne O'Connell, Clerk of the Local Court and Chamber Magistrate, the matter was listed for Thursday, 9 December 1999 when, so it is said, an application to "resurrect that warrant, was dismissed by the Local Court on 9 December 1999".

21 Mr Elllinghaus further deposes (in para 18):

"On the thirtieth day of April 1999 I spoke to Senior Investigator Peter Baker of the N.C.A. who told me that the plaintiff's Victorian charges were going to remain for the moment because the plaintiff was not charged anywhere else."

22 On 3 May 1999 the proceedings against the plaintiff at the Melbourne Magistrates' Court of her Victorian charges was further adjourned to 29 June 1999 and her reporting conditions were suspended between the period commencing 14 May and 25 June 1999. Mr Ellinghaus deposes that on that occasion he once again indicated to the presiding Magistrate that the plaintiff "might not consent to withdrawal of charges in Victoria and the bringing of charges in New South Wales."

23 Mr Ellinghaus further deposes (in para 20) as follows:-

"On the 26th day of May 1999 I spoke to Mike Birley of the N.C.A. who told me that the intention was always to withdraw the Melbourne charges once the plaintiff had been charged in Sydney. He told me that it was proposed to withdraw the Victorian charges against the plaintiff on the 25th day of June 1999 with an undertaking that the plaintiff would appear in New South Wales. He also told me that otherwise he would go through the process of getting another warrant and that this time the plaintiff would be taken into custody and brought to New South Wales."

24 On 29 July 1999 Mr Ellinghaus appeared with the plaintiff at the Melbourne Magistrates' Court and was informed by Ms Lucy Palgin of the Victorian Office of Public Prosecutions of a further first instance warrant numbered 172/99 issued by the second defendant in these proceedings, Mr M. Randall JP at Redfern in the State of New South Wales on 28 July 1999 and in which the first defendant, Robert Anthony Critchlow was Informant. Ms Palgin further informed Mr Ellinghaus that it was intended to arrest the plaintiff and to take her into custody. The plaintiff's Victorian charges were then adjourned for further mention on 6 October 1999 and the First Instance Warrant issued on 28 July 1999 by the second defendant was adjourned for a defended expedition proceeding on 6, 7 and 8 October 1999.

25 On 5 October 1991 Mr Ellinghaus spoke to the second defendant who informed him that the only document on the Court file in respect of the first instance warrant issued by him on 28 July 1999 was the "information" and that although a brief of evidence was probably provided that the usual procedure was to return it to the police applicant. No record had been kept of the information relied upon in support of the application for the issue of the warrant.

26 Mr Ellinghaus deposed (in para 30) that on 8 December 1999 he spoke to Ms Helen Davey of the N.C.A. who informed him that the only reason for the continuation of the plaintiff's charges in Victoria was that if the Victorian charges were dropped, the N.C.A. would have nothing to hold the plaintiff on.

27 The contested extradition proceedings and the first instance warrant issued on 28 July 1999 were variously adjourned by consent with the exception of the application for adjournment by Mr Faris QC of 14 June 2000 on behalf of the plaintiff.

28 On 14 June 2000 Mr Coglan, Queens' Counsel for the first defendant indicated to Mr Faris the intention to argue an ultra vires question regarding consideration by the Magistrates' Court in Victoria of the issue by the second defendant of the first instance warrant of 28 July 1999. The decision was then taken by the plaintiff to bring these proceedings.

29 The first defendant relies upon the affidavit of Peter Glen Baker sworn 3 July 2000. Mr Baker is a detective sergeant on secondment to the National Crime Authority and is the officer-in-charge of the investigation involving the plaintiff.

30 Detective Sergeant Baker formed the view on 9 February 1999 that the plaintiff had committed an offence against New South Wales legislation and that it was appropriate she be charged in New South Wales. He requested Detective Senior Constable Birley, police officer on secondment to the National Crime Authority to apply for a First Instance Warrant of apprehension in New South Wales and this warrant was issued on 9 February 1999 by M. Knock (the 9 February 1999 warrant).

31 In paragraph 7 Detective Sergeant Baker deposes:-

" On 29 March 1999 FIW No. 27/99 was executed in Melbourne and the plaintiff was brought before the Melbourne Magistrates' Court. An application was made to the Melbourne Magistrates' Court for the plaintiff's extradition to New South Wales to face the charges contained in FIW No. 27/99. That application was not opposed by the plaintiff and she was bailed to appear at the Central Local Court in Sydney (CLC) on 6 April 1999. The Magistrate ordered that in view of her advanced stage of pregnancy, the Plaintiff's personal attendance at CLC on 6 April 1999, was not necessary if a medical certificate outlining reasons why she could not attend was delivered to the CLC on 6 April 1999. The Magistrate adjourned the Victorian charges against the plaintiff to 3 May 1999".

32 In his affidavit Detective Sergeant Baker refers to the proceedings of 6 April 1999 at the Central Local Court, Sydney in which Mr Ellinghaus presented a medical certificate explaining the plaintiff's absence and the position adopted by the presiding Magistrate that there was nothing which he could do in the absence of the plaintiff. (Paragraph 9).

33 In paragraph 10 Detective Sergeant Baker deposes:-

"Enquiries established the papers originating from the Melbourne Magistrates' Court relating to the first extradition order made on 29 March 1999, were not forwarded to the CLC and, in fact, have not been located anywhere".

34 Detective Sergeant Baker in consultation with other N.C.A. staff members concluded that the extradition proceedings initiated by first instance warrant No. 27/99 had failed. He decided to seek the issue of a further first instance warrant of Apprehension for the plaintiff. On 28 July 1999 he requested the first defendant to institute these proceedings which resulted in the issue of first instance warrant No. 172/99 (which is part of Exhibit "B"). On 29 July 1999 this First Instant Warrant was executed in Melbourne and the plaintiff was brought before the Melbourne Magistrates' Court. An application was made to the Court for the plaintiff's extradition to New South Wales to face the charges contained in the warrant. The application was opposed and the matter set down for a three day hearing in the Melbourne Magistrates' Court commencing on 6 October 1999.

35 On 10 August 1999 the chairperson of the N.C.A. was served with a Witness Summons, issued at the request of the plaintiff to produce documents. This summons was returnable in the Melbourne Magistrates' Court on 2 September 1999 and related to the contested extradition application hearing due to commence on 6 October 1999.

36 On 2 September 1999 the Witness Summons was set aside on the basis that its terms were too wide and oppressive.

37 In paragraph 18 Detective Sergeant Baker deposes:-

"Due to the unavailability of a witness, it was not possible to proceed with the hearing of the extradition Application in the Melbourne Magistrates' Court on 6 October 1999".

38 Following discussions with N.C.A. staff and the Victorian Office of Public Prosecutions Detective Sergeant Baker decided to endeavour to resurrect the first extradition proceedings initiated by First Instance Warrant No. 27/99. These were listed at the Sydney Central Local Court on 9 December 1999.

39 Further adjournments of both extradition proceedings took place both in Melbourne and Sydney and on 14 June 2000 the Summons in the present proceedings was received at the National Crime Authority's Sydney office. On 15 June 2000 at the Melbourne Magistrates' Court the second extradition proceedings were adjourned to 6 July 2000 pending the outcome of the proceedings which are presently before this Court.

40 In paragraph 28 Detective Sergeant Baker deposes:-

"It was originally the Crown's intention to have the plaintiff stand trial in Sydney with her alleged co-accused. Because of the complications encountered in the attempts to have the plaintiff extradited from Victoria to New South Wales, this has not been possible. Dependent upon the result of the Crown's appeal to the C.C.A. (relating to a decision of Holt DCJ which effectively separated the trial of one of the co-accused) and the application for the plaintiff's extradition to New South Wales, it may still be possible for all four co-accused to be tried together."

41 The plaintiff's complaint relied upon as grounding her claim for the relief sought in the amended Summons is that the procedure adopted constituted an abuse of the process of the Court.

42 As submitted by Mr Faris:

"Instead of doing the first thing first, getting the New South Wales warrant and executing it in Victoria and arresting her, what they did, they arrested her in Victoria on Victorian charges. So they had her. So they have got her. She's arrested on a Victorian charge. So, at any time, at their convenience, they can serve her with the New South Wales warrant."

43 Hence, so the argument runs, they (the N.C.A.) never intended to proceed with the Victorian charges. They being holding charges to enable execution of the New South Wales warrant(s) "at their leisure", the plaintiff being, per force of her reporting conditions "a sitting duck".

44 The submission is made, with regard to the second warrant issued in Sydney, that full disclosure was not made to the issuing Magistrate in that the issuing of the first warrant was not disclosed and had there been disclosure the Magistrate "may have exercised his discretion not to issue" the second warrant, being the warrant under challenge.

45 Reliance is placed by the plaintiff on paragraph 20 of the affidavit of Mr Ellinghaus in which he deposes that Detective Senior Constable Birley had said that upon the plaintiff undertaking to appear in New South Wales then the Victorian charges would be withdrawn.

46 Mr Fagan, Senior Counsel for the first defendant informed the Court that the trial of Lam has taken place. The jury failed to agree and he is to be retried in February 2001 together with the co-accused So. A third co-accused Ngai Ting Man has pleaded guilty. Hence the element of urgency no longer prevails.

47 The Justices Act 1902 relevantly provides as follows:-

"21. When information may be laid
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or any other indictable offence:
(a) In New South Wales,
(b) on the high seas, or in any creek, harbour, or other place in which the Admiralty of England have or claimed to have jurisdiction,
(c) on land beyond the seas when for such offence an indictment may legally be preferred in New South Wales
22. How information to be laid
A. Any such information may be by parol and without any oath unless it is intended that a warrant in the first instance shall be issued as hereinafter provided, in which case the information shall be laid in writing, and the matter thereof substantiated by the oath of the informant or of a witness.
22A…
23. Issue of warrant in first instance
Whenever any such information is laid before a Justice against any person and the matter thereof substantiated by the oath of the informant or a witness, such Justice may, if such person is not then in custody, issue his or her warrant in the first instance for the apprehension of such person."

48 The parties by direction furnished written submissions and supported them with oral argument.

49 In argument 1 the plaintiff contends that at the time of laying the second information on 28 July 1999, the first extradition proceedings were still on foot and that no person can be validly charged twice for the same offence, citing R. v Garcia 85 A CrimR 151; Pearce v The Queen (1998) 194 CLR 610 at 614 and see also R. v Peters & Heffernan 83 A CrimR 142 per Simpson J at 149.

50 For the first defendant Mr Fagan submits that the proceedings on the first information having been stalled, there can be no question of the second information being invalid in the sense of being void ab initio.

51 The proposition put on behalf of the plaintiff is, in my view, too broadly stated. As pointed out by counsel for the first defendant the mechanisms recognised by the criminal law of Autrefois acquit/convict and intervention by permanent stay following concluded proceedings on the same facts, as made plain in Pearce v The Queen (supra) would be otios if the issue of a subsequent information operated so as to render void ab initio a subsequent information and the proceedings upon it. The plaintiff's argument in this regard is rejected.

52 The second argument advanced by the plaintiff alleges a failure to disclose material facts.

53 The essence of this ground is to allege a failure on the part of Detective Sergeant Baker as officer-in-charge of the investigation, and at whose request the information was laid, to disclose to the Justice issuing the second First Instance Warrant on 28 July 1999, the facts relating to a number of events which had occurred regarding the plaintiff in Victoria in relation to charges laid in that State rather than in New South Wales, and in addition not to disclose the issue of the prior First Instance Warrant of 9 February 1999. Those matters together with the alleged failure of Detective Sergeant Baker to disclose, inter alia, the allegedly "holding" nature of the Victorian proceedings are said to demonstrate lack of good faith on the part of Detective Sergeant Baker so as to vitiate the First Instance Warrant of 28 July 1999.

54 Reliance is placed, by the plaintiff, upon Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, citing the judgment of the Court (Sheppard, Foster and Hill JJ) at 480-481. In that case the Court was considering the duty which devolved upon an informant seeking the issue of a search warrant and stood as authority for the proposition that a search warrant issued pursuant to s. 10 of the Crimes Act 1914 (Cth) might be set aside in the presence of breach by the informant of "….(a) a strict duty of full disclosure of material facts by the informant."

55 In Lego Australia Pty Limited & Ors v Paraggio & Ors (1994) 53 FCR 542, the Full Court of the Federal Court in considering the validity of a search warrant granted under s. 10(1) of the Crimes Act held that:

(1) The validity of a search warrant granted under s.10(1) of the Crimes Act is a question of statutory construction and of public and administrative law;

(2) There is no general duty of disclosure in making an application for the grant of a search warrant.

(3) The grant of a search warrant can be set aside on the basis of fraud or misrepresentation by the informant.

56 In their joint judgment Beaumont and Whitlam JJ at 555F said this:

"It follows, in our view, that there is no general, in the sense of abstract, 'duty' of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see e.g. R.v Kylsant (1932) 1 KB 442) would be treated in this, as in other contexts, as a misrepresentation."

57 Their Honours expressly distinguished Garrard v Email Furniture (1993) 32 NSWLR 662, an authority upon which the plaintiff relies, and declined to follow Karina Fisheries.

58 Hill J who was the third member of the Full Court in Lego and who had participated in the judgment of the Court in Karina Fisheries took the opportunity in Puglisi v Australian Fisheries Management Authority & Ors. (1997) 148 ALR 393 at 400, to make plain that he had no intention to differ from the principles expressed by the other members of the Court in Lego. Relevantly, for present purposes, Hill J in Puglisi at 400 said:

"Following Lego it is now clear that failure to disclose a particular fact would not invalidate a warrant unless the failure was such as to warrant a conclusion that the decision to grant the warrant was induced by fraud."

59 On behalf of the first defendant it is submitted that the issue of a First Instance Warrant for apprehension under s. 23 of the Justices Act 1902 is an administrative Act: McArthur v Williams (1936) 55 CLR 324 at 334.5-335.2, 365.9-386.4; Love v Attorney-General NSW (1990) 169 CLR 307 at 319-332; Ousley v The Queen (1997) 192 CLR 69. The submission is further made that these authorities concerning administrative review of decisions made under Commonwealth law (s. 10 and later s. 3E Crimes Act 1914) are general in their statements that the applicant seeking review must prove fraud and that mere non-disclosure is insufficient. The principle, so it is submitted is equally applicable to review of a decision made by an issuing Justice under the Justices Act, there being nothing in that Act which would give rise to a duty of disclosure.

60 Hence it is argued on behalf of the first defendant that when the correct question is posed that is, whether there has been fraud or misrepresentation upon the issuing Justice by the informant - it is clear that the plaintiff's evidence does not approach satisfaction of such a test and there has been no attempt to adduce such evidence. There is to my mind persuasive force in these arguments.

61 In oral argument Mr Faris on behalf of the plaintiff contented for the opposite interpretation of McArthur v Williams than that contended for on behalf of the first defendant.

62 As I understand the argument it is contended by Mr Faris that the procedure adopted of placing before the Magistrate the information in question accompanied by an oath in general terms substantiating the matter in the information is an inadequate compliance with the statutory provision. He takes no issue that the information as presently presented was laid in writing but submits that what is thereafter required in order to comply with Ss. 22 and 23 is the provision of some detailed information about the circumstances of the offence which must be on oath either from the informant or from a witness.

63 The submission is made that there is a significant difference between s. 136 of the New Zealand Justices of the Peace Act (1927) which was being considered by the High Court in McArthur v Williams, (supra) that section simply requiring that the information be sworn and s. 22 of the New South Wales Justices Act. Mr Faris further submits that the course he contends for requires the presentation of those detailed matters to be on oath to enable the Justice to exercise what in his contention is a discretionary matter as to whether the First Instant Warrant should issue and in this regard the same constraints should be exercised as are necessary to comply with the statutory provisions relating to the issue of a search warrant.

64 On the above reasoning it is contended that McArthur v Williams is to be distinguished.

65 In my view the submission made by Mr Faris, with respect, is untenable. The provisions of the Search Warrants Act 1985 make plain the steps which are to be taken and the records which are to be kept. They differ in substance significantly from the relevant provisions of the Justices Act 1902 and to draw such a parallel is not open. This argument does not find favour.

66 Argument 3 Abuse of Process - Abuse of process in the plaintiff's submissions is postulated on the basis that there was no good faith on the part of the informant and in this regard the plaintiff repeats and relies upon the arguments put forward in support of argument 2.

67 The importation of the notion of absence of good faith on the part of the informant appears to have its genesis in what was said by Hall J in Lego (supra) for the reasons above given this argument is rejected.

68 Argument 4 - No sworn statement of facts. In support of this argument the plaintiff submits that the information in question "does not appear to have been sworn by the informant Critchlow". Further reliance is placed upon what was said in paragraph 36 of Detective Sergeant Baker's affidavit which does not make specific mention of the administration of an oath. Both the information and the First Instance Warrant state on the face of each document that the Justice received the information on oath.

69 The evidence of Detective Sergeant Baker was admitted without challenge and no cross-examination was undertaken of him. Sections 21, 22 and 23 of the Justices Act do not require the provision of a statement of facts, or any similar document, to the issuing Justice as a prerequisite to the issue of the warrant. Since the statement of facts was not a necessary element in the issuing process, it is not to the point that this document was not verified on oath. This argument is rejected.

70 Argument 5 - Insufficient information laid before the issuing Justice. The thrust of the plaintiff's argument in support of this contention is a claim that upon a proper consideration of the whole of the material contained in the taped telephone conversations, a prima facie case is not made out.

71 The submission is made that the use of the words in s. 23 "…substantiated by the oath of the informant, or a witness…" imposes a duty on the issuing Justice to examine the facts upon which the informant's suspicion and belief were founded and to "exercise his own judgment thereon."

72 I am unable to accept this proposition. What is required is that the issuing Justice have placed before him or her an information in writing and that "the matter thereof" be substantiated on oath.

73 In McArthur v Williams (supra) at 365-6, Dixon, Evatt and McTiernan JJ said this:

"Since 11 & 12 Vict. c.42 and 11 & 12 Vict. c.43 an information or complaint substantiated on oath has been the necessary foundation of a magistrate's authority to issue a warrant. But it has never been considered that the validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity. It is easy to understand that the existence of a written information sworn to or supported on oath might be conditions precedent to an authority to issue a warrant of apprehension but when these conditions are satisfied, the magistrate has materials upon which he must form his judgment. In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend (cf. Cooper v Booth (1785) 3 Esp. 135, at p. 144; 170 E.R. 564, at pp. 567, 568.)"

74 In oral argument Mr Jones, Junior Counsel for the plaintiff took the Court to the decision in Kenneally v New Zealand 166 ALR 625. The Full Court of the Federal Court was there considering the provisions of the Extradition Act 1988 (Cth.) in particular s. 34. In paragraph 10 of the judgment of the Court, the following is said:

"(10) Section 34(2) of the Act is of critical importance. It provides as follows:
(2) If the Magistrate is satisfied by the person that, because:
(a) the offence in relation to which any endorsed New Zealand warrant in relation to the person was issued is of a trivial nature;
(b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or
(c) a lengthy period has elapsed since that offence was committed or allegedly committed;
or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the Magistrate should order that the person be released."

75 The use, in the subsection of the words "if the Magistrate is satisfied…" clearly call upon him or her to examine the facts alleged against the person accused and to exercise judgment and reach conclusions as to the matters raised in the various sub-paragraphs as conditions precedent.

76 The contrast between the provisions of the Extradition Act 1988 (Cth.) and Ss. 21, 22 and 23 of the Justices Act are stark. Kenneally is readily distinguishable on this point and is not of assistance to the plaintiff, quite the contrary. This argument also must be rejected.

77 Argument 6 - Additional considerations. The essence of the plaintiff's case in this regard relates to the failure of the issuing Justice to keep a "proper" record of the application made by the informant Detective Senior Constable Critchlow.

78 It is recognised both in written submissions on behalf of the plaintiff and in oral argument by Mr Jones, the difficulty which the plaintiff faces in presenting this aspect of the case due to the fact that no record of what was placed before the issuing Justice was kept. Acknowledgment is made by counsel for the plaintiff that in contrast to the statutory provisions relating to the issue of search warrants where the keeping of records of material placed before issuing Justices is mandatory, no such provisions relate to the issue of First Instance Warrants for apprehension.

79 The submission is nevertheless made on behalf of the plaintiff that procedural fairness requires that records be kept and that in this regard the absence of a record of what was placed before the issuing Justice is sufficient to vitiate the issue of the First Instance Warrant. A number of authorities were cited on behalf of the plaintiff including Whitlam v Sanke (1976) 2 NSWLR 570; The Queen v Adamson (1875) 1 QB 201; Ex parte Reid; Re Lynch, Ex parte Burgess; Re Lynch (1943) 43 NSWSR 207; Ex parte Abraham Malouf; Re Gee, Ex parte Waddiy Malouf (1943) 43 NSWSR 207 and Johanson v Dixon & Anor (1979) 25 ALR 65.

80 These authorities, as pointed out by counsel for the first defendant relate to failure to keep proper records of proceedings in determinations by Courts exercising judicial functions.

81 It is conceded by Mr Fagan on behalf of the first defendant that the requirement to keep a proper record is an aspect of entitlement to natural justice. He cites Kioa v West (1985) 159 CLR 550 where at 584 Mason J, (as he then was) said this:-

"The law has now developed to appoint where it may be accepted that there is a Common Law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

82 Counsel for the first defendant submits that Ss. 21, 22 and 23 of the Justices Act manifest such a clear contrary intention. This is illustrated by the simple proposition which needs only to be stated in order to be accepted that the Parliamentary intention could never be that the warrant for the apprehension of a suspected person should not be issued until that suspect has been accorded natural justice or procedural fairness. See Grech & Anor v Minister for Immigration 105 ALR 107 per Heerey J where it was held that the decision to make an arrest did not attract the rules of natural justice. I am persuaded by the first defendant's arguments in this regard and this argument also fails.

83 Finally, there remains the contention on behalf of the plaintiff that the N.C.A., in causing to be instituted the proceedings in Victoria did so, never intending to prosecute those proceedings.

84 There can be little doubt that to institute proceedings involving the arrest of an individual without the intention to proceed to prosecution can amount to an abuse of process and may properly found remedial action. However, in the circumstances of this case any such abuse is not an abuse of process of this Court and the remedy, if it lies at all, lies elsewhere.

85 In saying this I do not mean to imply that the unchallenged assertions in the evidence before this Court are determinative of the question of intent on the part of those responsible for the institution of the Victorian proceedings. Such a determination is unnecessary for present purposes and is not made.

86 In the result, the Summons, as amended, is dismissed with costs.

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Last Modified: 12/08/2000