Pauga v Chief Executive of Queensland Corrective Services
[2023] FCAFC 58
•13 April 2023
FEDERAL COURT OF AUSTRALIA
Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58
Appeal from: Pauga v Chief Executive of Queensland Corrective Services (No 6) [2022] FCA 1096 File number: SAD 151 of 2022 Judgment of: WIGNEY, BROMWICH AND ABRAHAM JJ Date of judgment: 13 April 2023 Catchwords: EXTRADITION – unsuccessful application for a writ of habeas corpus – whether the primary judge erred in finding that 'brought as soon as practicable before' under s 15(1) of the Extradition Act 1988 (Cth) requires physical attendance of person arrested – whether the primary judge erred in finding that 'for such period or periods as may be necessary for proceedings … to be conducted' under s 15(2) contemplates a remand from time to time rather than a single remand – whether the primary judge erred in finding that the principles of res judicata, issue estoppel and abuse of process prevented the appellant advancing his argument under s 15(1) – whether the primary judge erred in finding that the proceedings were conducted by a magistrate acting personum designata as required by s 45B(1) – whether the primary judge erred in finding that the s 19(2) hearing did not need to be conducted separately from the s 19(2) hearing – held: appeal dismissed – where the cross-appeal advanced that the primary judge erred in finding procedural unfairness in the conduct of the s 19 hearing in the course of otherwise dismissing an application for a writ of habeas corpus – held: cross-appeal allowed.
BAIL – reasons for dismissing an application for bail made at the conclusion of the appeal hearing – bail provisions under the Extradition Act apply.
Legislation: Extradition Act 1988 (Cth) ss 3(a), 7, 7(1)(c), 12, 15, 15(1), 15A, 15A(4)(a), 16, 17(2A), 18, 18(2)(a)(i), 19, 19(1), 19(1)(a), 19(1)(d), 19(2), 19(2)(d), 19(5), 19(9), 19(9)(a)(i), 21, 21(2)(b), 21(2A)(a), 21(6)(f)(iv), 21(6)(g), 21A, 22, 22(5)(a), 45B(1)
Extradition (Foreign States) Act 1966 (Cth) ss 15(1)(b), 17(1), 17(2)
Federal Court of Australia Act 1976 (Cth) s 23
Migration Act 1958 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW) s 196
Justices Act 1886 (Qld) s 178C
Fugitive Offenders Act 1881 (UK) s 5
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Bessell v Wilson (1853) 1 El & Bl 489; 118 ER 518
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811
Cabal v United Mexican States (No 2) [2000] FCA 445; 172 ALR 743
Censori v Adult Parole Board of Victoria [2015] VSCA 254; 254 A Crim R 455
Chan v Commonwealth, High Court of Australia, Stephen J, unreported, 12 December 1980
Chan v Minister for Justice and Customs [2001] FCA 170; 108 FCR 65
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
Coco v The Queen [1994] HCA 15; 179 CLR 427
Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43
Commonwealth of Australia v MZZHL [2021] FCAFC 191; 289 FCR 135
Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; 185 CLR 528
Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352
Ex parte Dunn (1904) 4 SR 486
Ex parte Hughes; Re Moulden (1946) 47 SR (NSW) 91
Federal Republic of Germany v Parker (1998) 84 FCR 323
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Ireland v Dunne [2021] FCA 245; 389 ALR 672
Liem v Republic of Indonesia [2018] FCAFC 135; 265 FCR 251
Marku v Republic of Albania [2013] FCAFC 51; 212 FCR 50
Martin v White [1910] 1 KB 665
Matson (Roger) v Keenan [2016] FCA 1549
Matson v Attorney-General [2022] FCA 790
McKellar v Director of Public Prosecutions [2014] NSWSC 459; 240 A Crim R 285
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398
Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684
Pauga v Samoa [2022] FCA 1097
Pell v The Queen [2019] VSCA 186
Peniche v Hannan [1999] FCA 915
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; 222 FCR 13
R v JS [2007] NSWCCA 272; 230 FLR 276
R v Spilsbury [1898] 2 QB 615
R v Thompson [1909] 2 KB 614
Rahardja v Republic of Indonesia [2000] FCA 1297
Republic of South Africa v Dutton [1997] FCA 708; 77 FCR 128
Snedden v Minister for Justice [2014] FCAFC 156; 230 FCR 82
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Timar v Republic of Hungary [1999] FCA 1518
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507
Tsvetnenko v United States of America [2019] FCAFC 74; 269 FCR 225
United Mexican States v Cabal [2001] HCA 60; 209 CLR 165
Vasiljkovic v Commonwealth of Australia [2006] HCA 40; 227 CLR 614
Vasiljkovic v O’Connor (No 2) [2011] FCAFC 125
Vasiljkovic v O’Connor [2010] FCA 1246; 276 ALR 326
Williams v The Queen [1986] HCA 88; 161 CLR 278
Winkler v Director of Public Prosecutions (1990) 25 FCR 79
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 227 Date of last submission/s: 9 March 2023 Date of hearing: 7, 8 and 9 February 2023 Counsel for the Appellant and Cross-Respondent: Mr G Finlayson Solicitor for the Appellant and Cross-Respondent: Diaspora Legal Counsel for the First Respondent: Ms L Reece and Ms K Boomer Solicitor for the First Respondent: Crown Law Counsel for the Third, Fourth, Fifth, Sixth, Seventh and Tenth Respondents: The Third to Seventh and Tenth Respondents did not appear Solicitor for the Third, Fourth, Fifth, Sixth, Seventh and Tenth Respondents: Crown Law Counsel for the Eighth and Ninth Respondents and First and Second Cross-Appellants: Ms R Webb KC, Mr M McKechnie and Ms G Devereaux Solicitor for the Eighth and Ninth Respondents and First and Second Cross-Appellants: Commonwealth Attorney-General’s Department ORDERS
SAD 151 of 2022 BETWEEN: TALALELEI PAUGA
Appellant
AND: CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
First Respondent
TINA PREVITERA
Third Respondent
PAUL BYRNE (and others named in the Schedule)
Fourth Respondent
AND BETWEEN: ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
First Cross-Appellant
AND: TALALELEI PAUGA
Cross-Respondent
ORDER MADE BY:
WIGNEY, BROMWICH AND ABRAHAM JJ
DATE OF ORDER:
13 APRIL 2023
THE COURT ORDERS THAT:
1.The cross-appeal is allowed.
2.The appeal is dismissed.
3.The warrant of committal of the appellant dated 9 July 2021, issued by Magistrate Previtera pursuant to s 19(9) of the Extradition Act1988 (Cth), is restored.
4.The appellant is remanded in custody.
5.The appellant pay the costs of the first, eighth and ninth respondents below and before the Full Court as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
These reasons concern an appeal and cross-appeal (and notices of contention) with respect to a decision of the primary judge in a case where the applicant, Mr Pauga, had been found to be eligible for surrender to the country of Samoa, after proceedings conducted by the primary magistrate under the Extradition Act 1988 (Cth). The proceedings before the primary judge commenced in July 2021, when Mr Pauga sought, inter alia, an order that he be released from custody or that a writ of habeas corpus issue “to show cause as to the lawfulness of [his] custody”. Those proceedings ultimately involved many separate claims by Mr Pauga about the conduct of each aspect of the extradition process asserting, as a result of each, that his detention was unlawful.
The primary judge allowed the application on the sole basis that Mr Pauga was not afforded procedural fairness at the hearing conducted by the primary magistrate pursuant to s 19 of the Extradition Act on 8 and 9 July 2021 (the s 19 hearing). His Honour set aside the warrant of committal of Mr Pauga dated 9 July 2021 (Warrant of Committal) and the matter was remitted for determination according to law.
Mr Pauga challenges that remittal, and the refusal by the primary judge of his challenges to other aspects of the extradition process. The eighth and ninth respondents, Samoa and the Commonwealth Attorney-General (referred to collectively as Samoa), challenge by cross-appeal the primary judge’s finding of procedural unfairness.
For the reasons below:
(a)the cross-appeal is allowed;
(b)Mr Pauga’s appeal is dismissed;
(c)the Warrant of Committal issued by the primary magistrate pursuant to s 19(9) of the Extradition Act is restored;
(d)Mr Pauga is remanded in custody.
Statutory scheme
In these reasons, all provisions referred to are those in the Extradition Act, unless expressly stated to the contrary.
Given the grounds of appeal, it is appropriate at the outset to outline the extradition process. It is described as involving four stages: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389 per Beaumont, Einfeld and Foster JJ; Liem v Republic of Indonesia [2018] FCAFC 135; 265 FCR 251 at [21] per Mortimer, Wigney and Lee JJ. First, the commencement of the extradition process: ss 12 and 16; second, the arrest of a person and remand in custody or on bail: s 15; third, the determination of whether a person is eligible for surrender, and a limited right of merits review by way of rehearing in this Court (which may also be appealed): ss 19 and 21 respectively; and fourth, the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered: s 22. Each stage involves a binary decision by which the process either ends, or progresses to the next stage or to the final surrender decision: Snedden v Minister for Justice [2014] FCAFC 156; 230 FCR 82 at [100].
Other than a review under s 21, the powers conferred are administrative: Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; 185 CLR 528 at 538 per Brennan CJ, Dawson and McHugh JJ.
First stage: commencement
As to the first stage, s 12 provides as follows:
12 Extradition arrest warrants
(1) Where:
(a)an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and
(b)the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.
(2)The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.
(3) Where:
(a)the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;
(b) the person has not been arrested under the warrant; and
(c) either:
(i)the Attorney-General decides not to give a notice under subsection 16(1) in relation to the person; or
(ii)the Attorney-General considers for any other reason that the warrant should be cancelled;
the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant.
(4) A notice given under subsection (3) is not a legislative instrument.
In Matson (Roger) v Keenan [2016] FCA 1549 at [31], Rangiah J accurately described s 12 as follows:
Section 12 of the Act requires that the Magistrate be satisfied “on the basis of information given by affidavit” that the person is an extraditable person. If the Magistrate is so satisfied he or she “shall issue a warrant”. The Magistrate has no residual discretion to refuse to issue an arrest warrant. Therefore, the applicant’s ill health and allegations of dilatoriness in the prosecution were irrelevant to the Magistrate’s decision.
Section 16 provides as follows:
16 Notice by Attorney-General
(1)Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.
Person must be extraditable person in relation to extradition country
(2)The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.
(3)As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:
(a) a copy of the notice; and
(b)copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
(4) A notice given under subsection (1) is not a legislative instrument.
There is no challenge on the appeal to any aspect of the stage one process.
Second stage: arrest and remand
The second stage of the process is what occurs after arrest, which is governed by s 15:
15 Remand
(1)A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested.
(2)The person shall be remanded by a magistrate or eligible Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.
(3)If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.
(4)At any time before proceedings under section 15A, 18 or 19 commence in relation to a person (in this section called the transferee) who is on remand under subsection (2), the Attorney‑General may, by warrant in the statutory form:
(a)where the transferee is in custody—direct a magistrate or eligible Judge to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory; or
(b)where the transferee has been granted bail—direct a magistrate or eligible Judge to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory.
(5)The transferee shall be remanded by a magistrate or eligible Judge in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.
(6)A magistrate or eligible Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.
The construction of s 15 is in issue on this appeal and will be addressed in more detail when considering the relevant grounds.
Third stage: eligibility for surrender including review by way of rehearing
Stage three of the process is the determination under s 19, which is in the following terms:
19 Determination of eligibility for surrender
(1) Where:
(a) a person is on remand under section 15;
(b)the Attorney‑General has given a notice under subsection 16(1) in relation to the person;
(c)an application is made to a magistrate or eligible Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d)the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2)For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a)the supporting documents in relation to the offence have been produced to the magistrate or Judge;
(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents—those documents have been produced to the magistrate or Judge;
(c)the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d)the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3)In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a)if the offence is an offence of which the person is accused—a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b)if the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii)the sentence imposed or the intention to impose a sentence; and
(iii)the extent to which a sentence imposed has not been carried out; and
(c) in any case:
(i)a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii)a duly authenticated statement in writing setting out the conduct constituting the offence.
(4) Where, in the proceedings:
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b)the magistrate or Judge considers the deficiency or deficiencies to be of a minor nature;
the magistrate or Judge shall adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the deficiency or deficiencies to be remedied.
(4A) If:
(a)the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person; and
(b)during proceedings conducted in relation to the person under this section, the Attorney‑General gives an amended notice under subsection 16A(2) in relation to the person; and
(c)the amended notice specifies one or more extradition offences that were not specified in the original notice; and
(d)the magistrate or Judge considers it necessary to give the person and the extradition country time to prepare for the conduct of proceedings under this section in relation to any of those extradition offences;
the magistrate or Judge may adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the person and the extradition country to prepare for the conduct of those proceedings.
(5)In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate or Judge is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
(6)Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7)A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a)it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b)it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i)in any case—of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii)where the extradition country is a colony, territory or protectorate—of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(7A)Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).
(8)Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.
(9)Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:
(a)order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:
(i)surrender under a surrender warrant or temporary surrender warrant; or
(ii)release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5);
(b)inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 21(1); and
(c)record in writing the extradition offence or extradition offences in relation to which the magistrate or Judge has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney‑General.
(9A)A magistrate or eligible Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.
(9B)An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.
(10)Where, in the proceedings, the magistrate or Judge determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate or Judge shall:
(a) order that the person be released; and
(b)advise the Attorney‑General in writing of the order and of the magistrate’s or Judge’s reasons for determining that the person is not eligible for surrender.
The meaning of “extradition objection” referred to in s 19(2)(d) is set out in s 7 as follows:
7 Meaning of extradition objection
For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
(a)the extradition offence is a political offence in relation to the extradition country; or
(b)the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or
(c)on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or
(d)assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or
(e)the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
In determining eligibility for surrender, a state or territory magistrate or eligible judge of Division 2 of the Federal Circuit and Family Court of Australia, is confined to considering the matters specified in ss 19(1) and (2) and cannot have regard to other matters falling outside the ambit of those sections: Kainhofer at 538-539. This case only involved magistrates, such that further reference to eligible judges is unnecessary. In Kainhofer, the s 19 stage was described as follows at 537 (omitting footnotes):
A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b). The character of “the conduct of the person constituting the offence ... or equivalent conduct” must be ascertained under sub-s (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d). The term “extradition objection” is defined by s 7.
It is not the function of a magistrate hearing an application pursuant to s 19 to determine whether the requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 at [82] per Weinberg J; citing Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-413. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538. Rather, the magistrate must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539.
The extradition process in Australia involves no consideration or determination of whether the person whose extradition is requested by a foreign country is guilty or innocent of the extradition offence: Vasiljkovic v Commonwealth of Australia [2006] HCA 40; 227 CLR 614 at [33]-[34], per Gleeson CJ, and see ss 3(a) and 19(5).
Section 19(2)(d) requires a magistrate to be satisfied that there are not substantial grounds for believing that there is an extradition objection. This threshold is “evaluative in character” and requires that a real or substantial risk be demonstrated: Cabal v United Mexican States (No 2) [2000] FCA 445; 172 ALR 743 (Cabal (No 2)) at [15]; cited with approval by the Full Federal Court in Rahardja v Republic of Indonesia [2000] FCA 1297 at [38]-[39] and [47]. The onus is on the person resisting extradition to establish that there are substantial grounds for believing that there is an extradition objection, and while it does not require proof on the balance of probabilities, it “is not easily discharged”: Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [220].
The application of s 19 is also in issue in this appeal, and will be considered in further detail below.
Section 21 permits a statutorily limited merits review of the magistrate’s decision by way of rehearing, rather than judicial review limited to correcting error: Republic of South Africa v Dutton[1997] FCA 708; 77 FCR 128 at 136C. A s 21 review is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender: Dutton at 136. Section 21A, enacted in 2012, expressly provides that if a party to the s 19 proceedings was prevented from adducing evidence, and the court considers that they should have been permitted to adduce it, the court may receive that evidence as well as further evidence or submissions that directly relate to it. A s 21 review application was brought by Mr Pauga, and dismissed by the primary judge, a decision that is not challenged on appeal.
Fourth stage: Attorney-General’s surrender
As explained above, the final stage of the process, is that if s 19 is satisfied, a discretionary decision reposes with the Attorney-General as to whether a person, found to be eligible, should be surrendered: s 22.
Chronology
For factual context, it is convenient to reproduce, in its entirety, the chronology of events filed by Samoa (absent the Court Book references). That chronology accurately records the key events.
Mr Pauga did not challenge the chronology of events set out by Samoa, although his case was premised on focusing on certain events and/or characterising them differently (largely by way of granular detail that goes beyond the description of summarising key events). To the extent that additional detail is relevant, it is reflected in the reasons addressing the arguments advanced.
The chronology filed by Samoa was as follows:
Date
Event
2 June 2020
Australia receives a request from Samoa for the extradition of the Appellant (under cover of Third Person Note dated 6 April 2020).
The Appellant’s extradition is requested to face prosecution in Samoa for one offence of conspiracy to murder.
2 July 2020
The Attorney-General of the Commonwealth issues a notice under s 16 of the Extradition Act 1988 (the Act)
14 July 2020
An extradition arrest warrant is issued by a magistrate of the Australian Capital Territory for the Appellant’s arrest under s 12 of the Act
20 August 2020
The Appellant is arrested in Queensland and remanded into custody. The extradition proceeding involving the Appellant is allocated matter number MAG0 0152606/20(6).
3 September 2020
Mention in MAG00152606/20(6) before his Honour Magistrate Gilbert. The proceeding is adjourned to 11 September 2020.
11 September 2020
Mention in MAG00152606/20(6) before his Honour Magistrate Gett. The extradition proceeding is adjourned to 18 September 2020.
18 September 2020
Mention in MAG00152606/20(6) before his Honour Magistrate Gett. His Honour grants leave to the Appellant to file an application seeking release from custody and lists it for hearing.
21 and 22 September 2020
Hearing of the Appellant’s application seeking release from custody in MAG00152606/20(6)
21 September 2020
The Appellant files an originating application in the Magistrates’ Court of Queensland against Queensland Corrective Services (QCS) and the State of Queensland seeking a declaration under the Human Rights Act 2019 (Qld) that his detention is unlawful and an order for release from custody. The proceeding is allocated matter number MAG2439/20.
25 September 2020
The Appellant’s application seeking for release from custody in MAG00152606/20(6) is refused.
Samoa makes an oral application for the conduct of proceedings under s 19 of the Act.
30 September 2020
Australia receives supplementary material provided in support of the extradition request.
6 October 2020
The Appellant files an originating application in the Supreme Court of Queensland for leave to amend the application before the Magistrates’ Court of Queensland (MAG2439/20), and to transfer the matter to the Supreme Court of Queensland. This proceeding is given the number SC Matter 10635/20.
7 October 2020
SC Matter 10635/20 is listed before her Honour Justice Bowskill. The application is adjourned on a date to be fixed.
16 October 2020
Samoa files and serves submissions and material relied upon in relation to the Appellant’s eligibility for surrender under s 19 of the Act.
30 October 2020
Directions hearing in MAG00152606/20(6) before the Primary Magistrate.
Direction made for Appellant to file and serve submissions and material in response to Samoa’s submissions and material by 4.00 pm on 10 December 2020.
6 November 2020
Hearing before his Honour Justice Martin in SC Matter 10635/20. The Appellant is granted leave to file an amended originating application seeking the issue of a writ of habeas corpus.
11 December 2020
Appellant files submissions (including referenced material) in relation to eligibility for surrender under s 19 of the Act. Submissions state that reasonable time to prepare is ‘24 to 36 months.’
11 December 2020
Directions hearing in MAG00152606/20(6).
The Primary Magistrate makes directions for the Appellant to file and serve by 5 February 2021 a written plan as to the evidence, reports or witnesses to be relied upon and a timetable as to when they will be available.
16 and 17 December 2020
Final hearing before his Honour Justice Crow in SC Matter 10635/20.
18 December 2020
His Honour Justice Crow delivers ex tempore judgment dismissing the Appellant’s application for a writ of habeas corpus in SC Matter 10635/20.
5 January 2021
The Appellant files an application dated 4 January 2021 seeking to recall and re-open the decision dated 18 December 2020 in SC Matter 10635/20.
12 February 2021
The Appellant serves a document entitled ‘Respondents’ Roadmap’
12 February 2021
Directions hearing in MAG00152606/20(6) before the Primary Magistrate.
The Primary Magistrate expresses the view that the document entitled ‘Roadmap’ does not comply with her directions.
The Primary Magistrate makes directions for the Appellant to file and serve, by 26 February 2021:
an affidavit setting out all steps taken in furtherance of the directions made in December 2020;
a written plan, in affidavit form, as to the evidence, reports or witnesses that the Appellant sought to rely upon in relation to eligible for surrender, along with a timetable as to when statement and reports would be available; and
any material in support of an application for her recusal.
The Primary Magistrate adjourns the matter to 12 March 2021 on the understanding that any application for recusal will be heard on that day.
15 February 2021
The Appellant sends an email to the Registry seeking that the matter be brought on as soon as possible to apply for a stay of the orders of the Primary Magistrate ‘for the filing of any affidavits.’
19 February 2021
Hearing of the application to recall and re-open the decision of his Honour Justice Crow dated 18 December 2020 in SC Matter 10635/20. Application dismissed with costs.
23 February 2021
Directions hearing in MAG00152606/20(6) before the Primary Magistrate.
The Appellant’s counsel advises the Primary Magistrate that he is ‘instructed to take separate judicial review proceedings’ to challenge the magistrate’s jurisdictional power to make previous and existing timetabling orders, including for the filing of affidavits. Counsel further informs the Primary Magistrate that the application will be filed before the next listing on 12 March 2022.
As no application had as yet been filed, the Primary Magistrate dismisses the application to stay her directions, including for the filing of affidavits. The Primary Magistrate amends the previous direction for liberty to apply and notes that all directions previously made stand.
11 March 2021
The legal representative for Samoa sends an email to the Appellant’s legal representative in advance of the directions hearing on 12 March 2021.
The email states that, in the absence of any information since December 2020 as to preparation of the Appellant’s case, Samoa intends to seek a hearing date. However, it was open to the Appellant to provide further information for Samoa’s consideration.
11 March 2021
The Appellant’s legal representative responds to Samoa’s email, advising that he seeks 10 weeks to provide further information.
12 March 2021
Directions hearing held before Primary Magistrate in MAG00152606/20(6).
The Appellant’s counsel advises that his client still intends to proceed with the foreshadowed recusal application, but is ‘not ready’ and will not be proceeding today.
The Primary Magistrate indicates that, in circumstances where the foreshadowed recusal application has not been made, she intends to list the matter for hearing. Various objections and issues are raised by the Appellant’s counsel, including that the Primary Magistrate continues to sit as a court and fails to recognise she is ‘the functionary’ and only ‘Tina’ when conducting these proceedings.
The Primary Magistrate makes an order to list the section 19 hearing on 8 and 9 July 2021. Directions are made as follows:
Samoa is to file any material on which it relies by 4pm on 10 June 2021;
The Appellant is file any material on which it relies for the hearing by 4pm on 24 June 2021;
Parties have liberty to apply to make applications (with supporting material) on the basis of 7 days’ notice.
10 June 2021
Samoa files submissions in reply in MAG00152606/20(6).
29 June 2021
The legal representative for Samoa sends an email to the Appellant’s legal representative to propose an online hearing (due to COVID-19 travel and other restrictions).
30 June 2021
The Appellant’s legal representative sends an email to the legal representative for Samoa setting out reasons why the section 19 hearing ‘should be vacated.’
30 June 2021
Samoa’s legal representative sends a further email to the Appellant’s legal representative to advise that an urgent directions hearing will be requested and that the matters set out in his email may be raised at that time.
30 June 2021
Samoa’s legal representative sends an email to the Registry requesting an urgent directions hearing.
5 July 2021
Urgent directions hearing held before Primary Magistrate in MAG00152606/20(6).
Samoa raises the correspondence received from the Appellant’s legal representative indicating that the hearing should be vacated. The Appellant’s legal representatives advise the Primary Magistrate that no application is made now to vacate the hearing and they will be in attendance in person at the hearing.
The Primary Magistrates notes that the Appellant’s counsel has ‘made it clear’ that there is ‘no application to vacate the hearing.’
5 July 2021
The Appellant’s legal representative and Counsel execute an originating application and supporting affidavit for filing in the Federal Court (which becomes SAD 135/2021).
7 July 2021
Urgent listing before his Honour Justice Colvin in SAD 135/2021.
The Appellant’s Counsel states that they ‘anticipate’ that the hearing in MAG00152606/20(6) would be ‘vacated and adjourned’ in view of the pending the Federal Court matter. If not, they request liberty to call the matter on urgently for interlocutory relief.
His Honour Justice Colvin declines liberty to apply on an urgent basis and lists the matter for case management in the ordinary course.
8 and 9 July 2021
Section 19 hearing before the Primary Magistrate.
The Appellant is found eligible for surrender to Samoa. An order is made under s 19(9) of the Act committing the Appellant to prison.
Additional events referred to by Mr Pauga are that: on 24 August 2020, he was received into custody at the Arthur Gorrie Correctional Centre; and on that occasion, as well as on each subsequent date the matter was before a magistrate, Queensland Corrective Services was provided with a document entitled “Verdict and Judgment Record” (Form 44).
Aspects of these events are addressed in more detail below.
Primary judgment
It is sufficient at this stage to set out an overview of the reasons of the primary judge, with further detail included below where relevant to consideration of the grounds of appeal.
The case advanced by Mr Pauga before the primary judge raised many separate contentions as to why his detention was unlawful: see PJ [13]. His Honour noted that he had set out the history of the proceedings relating to the circumstances in which appeal grounds were identified in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. That judgment provided reasons for his Honour’s order that the summary of grounds filed by Mr Pauga on 6 June 2021 be removed from the Court file including, inter alia, that it was fundamentally defective. A further statement of grounds was filed shortly before the final hearing before the primary judge, which are not recited in the primary judgment: see PJ [13]. In that context, his Honour categorised Mr Pauga’s contentions into 12 propositions: see PJ [14].
On each of those propositions, his Honour concluded as follows:
(a)The first proposition was that, contrary to the terms of s 15(1), Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest (with the consequence that he had never been lawfully detained). The primary judge found that proposition to directly contradict the conclusion reached by Crow J in a separate application for a writ of habeas corpus, meaning Mr Pauga was prevented from advancing it: see PJ [243]-[251] and see below at [64]-[65] and [137].
(b)The second proposition was that, in making orders to remand Mr Pauga and directions and orders as to the conduct of the s 19 hearing, magistrates involved in the matter (including the primary magistrate) purported to exercise judicial power and thereby acted without any lawful authority. The primary judge found that this proposition depended on whether any of the magistrates approached the matter on the basis that they were exercising judicial power, in a way that impugned their actions. His Honour found that the primary magistrate had not done so, and any defect in the orders made by the magistrates who dealt with earlier remands would not entitle Mr Pauga to an order releasing him from custody: see PJ [252]-[264].
(c)The third proposition was that certain of the instruments purporting to authorise Mr Pauga’s continuing detention in the period from his arrest to the s 19 hearing were not valid because of their contents, and because they were prepared and issued by persons other than the magistrates involved in the matter. The primary judge rejected that proposition, finding that, inter alia, the contents and nature of the charge sheet and Form 44s did not support it: see PJ [265]-[275].
(d)The fourth proposition was that there was no remand ordered by the primary magistrate at the hearing on 30 October 2020, with the consequence that thereafter Mr Pauga had not been lawfully detained. Given the documents before the Court referring to the fact that Mr Pauga was remanded on 30 October 2020, the primary judge found that the alleged factual basis for this proposition was not established: see PJ [276].
(e)The fifth proposition was that there was no jurisdiction to conduct the s 19 hearing unless Mr Pauga had been lawfully remanded. The primary judge explained that, on a proper construction of s 19(1)(a), the jurisdictional fact that must be established is that a decision to remand under s 15 has in fact been made (rather than it being necessary to establish that the remand was valid and lawful). Given that, on the evidence, by the time of the s 19 hearing Mr Pauga had been remanded as a matter of fact, the proposition was not established: see PJ [277]-[279].
(f)The sixth proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because no application had been made for proceedings to be conducted pursuant to the provision in relation to Mr Pauga. The primary judge rejected the proposition, as well as the particulars said to sustain it: see PJ [280]-[286].
(g)The seventh proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because, before proceeding with it, her Honour did not form the view that Mr Pauga had been allowed reasonable time in which to prepare. The effect of this proposition was that the s 19 hearing should have been conducted in two stages, with the primary magistrate to consider the preconditions set out in s 19(1) in the first stage. The primary judge did not accept the proposition, concluding that the availability of proceeding in the manner suggested by Mr Pauga did not mean it was required in order for there to be a valid decision: see PJ [287]-[294].
(h)In alternative to the seventh proposition, the eighth proposition was that the primary magistrate’s consideration of whether Mr Pauga had been allowed a reasonable time in which to prepare for the s 19 hearing was undertaken without affording him procedural fairness. The primary judge did not accept the proposition, finding that her Honour had expressly considered that Mr Pauga had a reasonable opportunity to prepare, and concluding that s 19(1)(d) was met: see PJ [294]-[360].
(i)In alternative to the seventh and eighth propositions, the ninth proposition was that the primary magistrate’s view that s 19(1)(d) had been met was formed in a manner that was arbitrary and capricious. However, bearing in mind the significance of the provision’s character as a jurisdictional fact, the primary judge found that: the state of mind required to exist by s 19(1)(d) could not be formed arbitrarily or capriciously; and it could not be said that the opinion had not been formed genuinely and in a manner that was reasonably open: see PJ [361]-[368].
(j)The tenth proposition was that the s 19 hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence, with the consequence that the primary magistrate did not consider whether there were any extradition objections. The primary judge found that Mr Pauga was refused an opportunity to adduce evidence, without being afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections (despite his failure to conform to directions that had been made). Accordingly, his Honour concluded that there had been procedural unfairness in this aspect of the conduct of the s 19 hearing and accepted this proposition: see PJ [369]-[384] and see below at [39].
(k)The eleventh proposition was that the Warrant of Committal was invalid by reason of the form in which it was issued. The primary judge did not accept this proposition: see PJ [385]-[393].
(l)The twelfth proposition was that s 15 does not authorise the remand of a person in prison. The primary judge did not accept this proposition: see PJ [394]-[398].
The application was considered by reference to those propositions rather than the grounds in the habeas corpus application directly. The application before the primary judge was therefore allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the s 19 hearing. That conclusion was based on his Honour’s finding that there had been a pre-emptory refusal of Mr Pauga’s application to adduce oral evidence. In circumstances where Mr Pauga had demonstrated jurisdictional error, but not that the primary magistrate lacked jurisdiction, the primary judge set aside the Warrant of Committal and remitted the matter for determination according to law: see PJ [10] and PJ [399]-[424].
The primary judge also gave reasons for refusing Mr Pauga’s application for bail: at PJ [426]-[440].
As adverted to above, on the same day the primary judgment was published, the primary judge also dismissed Mr Pauga’s s 21 review application, which had been heard at the same time as this proceeding: Pauga v Samoa [2022] FCA 1097. That judgment is not the subject of appeal: see the discussion at [64]-[65] below.
Grounds of appeal
The second amended supplementary notice of appeal is somewhat convoluted. Mr Pauga did not address his submissions to the grounds advanced in it. The essence of the grounds advanced can be summarised as contending that:
(m)the primary judge erred by failing to order Mr Pauga’s immediate release upon quashing the decision of primary magistrate (ground 1);
(n)the primary judge erred by finding at PJ [243]-[251] that the principles of res judicata, issue estoppel and abuse of process prevented Mr Pauga from arguing that he had not been brought before a magistrate as soon as practicable (ground 2);
(o)Mr Pauga had not been on remand authorised under the Extradition Act (ground 3);
(p)the relevant hearings before the magistrates were not as persona designata, but as a Court or members of the Court, or not detached from the Court (grounds 4, 5 and 10);
(q)the primary judge erred by holding that the primary magistrate had jurisdiction to determine the application made to Magistrate Merrin, the seventh respondent (grounds 6 and 12);
(r)the primary judge erred by holding at PJ [267] that a formal statement by a magistrate that the person shall be remanded would suffice to meet the requirements of s 15(2) (ground 7);
(s)the primary judge erred by holding at PJ [273] that Mr Pauga bore the evidentiary burden of showing invalidity of the Forms 44 (ground 8);
(t)the primary judge erred by ordering the remittal of the proceedings to a magistrate who had accepted the function and power to conduct proceedings pursuant to s 19 (ground 9);
(u)the primary judge erred by finding at PJ [57] and PJ [277] that s 19(1)(a) requires only a remand in fact, as opposed to an “identified chain of identified remands” and Mr Pauga being on lawful remand (ground 11);
(v)the proceedings pursuant to s 19 could not be conducted until all of the prerequisites set out in s 19(1) were established (ground 13);
(w)the primary judge erred by finding that consideration of the matters set out in s 19(2) did not require a further hearing (ground 14); and
(x)the primary judged erred at PJ [356] by holding that Mr Pauga did not attempt to persuade the primary magistrate that the parties had insufficient time to prepare and at PJ [359] by concluding that s 19(1)(d) was met (ground 15).
The grounds in the notices of contention are better reproduced than summarised:
(a)the first notice of contention asserted:
The Federal Court should have upheld the Eighth and Ninth Respondent’s contention that there is a single remand for Section 19 Extradition Act 1988 (Cth) proceedings, and that the remand can be of unspecified duration (being until the relevant proceedings are completed), consistent with the decision of Ireland v Dunne [2021] FCA 245 at [65]-[67]. The Federal Court was wrong to hold otherwise at [36].
(b)the second notice of contention asserts:
The Federal Court should have upheld the Eighth and Ninth Respondent’s contention that the requirement in section 15(1) of the Extradition Act 1988 (Cth) that a person arrested pursuant to an extradition warrant be ‘brought before’ a magistrate or eligible Judge does not require a person to be physically brought in person. The Federal Court was wrong to hold otherwise at [32].
The notice of cross-appeal can be summarised as contending that the primary judge erred by:
(a)finding at PJ [383] that there was procedural unfairness in the conduct of the hearing by the primary magistrate on 8 and 9 July 2021: by refusing to allow Mr Pauga to adduce evidence concerning extradition objections (see PJ [37] and PJ [381]); and without any indication from the primary magistrate as to the seriousness of the subject matter and the significance of that refusal (see PJ [381]) (ground 1);
(b)failing to consider and properly take into account the factual context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, for example, by characterising the decision of the primary magistrate as a refusal of the opportunity to lead evidence when Mr Pauga’s counsel had in fact sought an adjournment to prepare evidence (see PJ [371] and PJ [381]) (ground 2);
(c)failing to consider and properly take into account the legal and statutory context surrounding any extradition objections that were to be raised at the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, including by failing to consider the objective seriousness of a party alleging the existence of extradition objections (ground 3);
(d)failing to take into account the eighth respondent’s submissions regarding Mr Pauga’s conduct during the s 19 hearing, including submissions that his decision not to call evidence prior to his request for an adjournment was a deliberate forensic decision (ground 4);
(e)failing to consider the eighth respondent’s submission in relation to [82] of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (ground 5);
(f)finding that Mr Pauga’s application for an adjournment was for the purpose of obtaining evidence to support an extradition objection, where that finding was not supported by the evidence (ground 6); and
(g)not finding, in all the circumstances, that the primary magistrate afforded Mr Pauga procedural fairness at the s 19 hearing (ground 7).
The various grounds of appeal, cross-appeal and contention may be divided into the following categories by reference to the stages in the extradition process:
(a)the second stage of the extradition process, involving being brought before a magistrate as required by s 15(1) and remand as required by s 15(2), and related issues, as raised by appeal grounds 1, 2, 3, 7, 9 and 11 and the two notices of contention (Section 19 hearing) (Being brought before a magistrate and remand);
(b)the second and third stages of the extradition process and compliance with the executive jurisdiction bestowed on the primary magistrate personum designata and related issues, as raised by appeal grounds 4, 5, 6, 8, 10 and 12 (Personum designata); and
(c)the third stage of the extradition process under s 19 conducted before the primary magistrate on 8 and 9 July 2021, as raised by the cross-appeal and appeal grounds 13, 14 and 15 (The hearing conducted pursuant to s 19).
Although out of order in relation to the different stages of the extradition process, it is convenient to first address the cross-appeal and the appeal grounds addressing the s 19 hearing that took place before the primary magistrate. That is because, if the cross-appeal is successful, the appeal must be dismissed unless Mr Pauga establishes one of his grounds of appeal. It also follows that if the cross-appeal is successful, ground 1 of the appeal does not arise for consideration because there would be no remittal, and therefore nothing to challenge in relation to it.
The hearing conducted pursuant to s 19
Cross-appeal
As explained above, the cross-appeal challenges the primary judge’s finding that there was procedural unfairness in the conduct of the s 19 hearing: see PJ [383]. It is helpful at this stage to recite that paragraph in its context:
[379]… At no point was [counsel for the appellant] afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections despite the failure to conform to the directions that had been made.
[380]The course taken by the Primary Magistrate was supported expressly by [counsel] for Samoa.
[381]Therefore, Mr Pauga was refused an opportunity to adduce evidence without hearing from [counsel for the appellant] and without any indication in the reasons or other statements from the Primary Magistrate as to the seriousness of the subject matter and the significance of that refusal for the likely outcome.
[382]This important point, though buried deeply under the weight of many unmeritorious ones and barely exposed during the course of the hearing, did not lose its significance as a result. As was observed recently, in Nathanson v Minister for Home Affairs [2022] HCA 26 by Kiefel CJ, Keane and Gleeson JJ at [33]: 'There will generally be a realistic possibility that a decision‑making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration': see also [47] (Gageler J). The other members of the court expressed an even firmer position when it came to the consequence of a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision-making process: see [76]‑[77] (Gordon J), [121]‑[127] (Edelman J).
[383]In my opinion, there was procedural unfairness in this aspect of the conduct of the July Hearing. Further, the error was of a kind that gave rise to a realistic possibility of a different outcome because the submissions may have led to evidence being led on the important question of extradition objections.
In summary, Samoa alleges that the primary judge: erroneously concluded that Mr Pauga (the respondent to the cross-appeal) had been refused the opportunity “to adduce evidence concerning extradition objections”, when the evidence was in fact directed towards why more time was needed to prepare for the hearing; and failed to consider and properly take into account the factual and statutory context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances (and, as a result, erred in applying Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, a factually distinguishable case).
Samoa argues that, when those matters are properly considered, no error is established in the conduct of the primary magistrate and rather, her Honour’s refusal to receive the evidence was entirely reasonable. Samoa also submits that once the factual error as to the nature of the evidence is recognised, the primary judge’s conclusion that there was procedural unfairness is inconsistent with his Honour’s earlier conclusions at PJ [359] and PJ [367] (namely, that there was no procedural unfairness in the primary magistrate’s conclusion that Mr Pauga had reasonable time to prepare for the conduct of the proceedings under s 19): s 19(1)(d).
Given the nature of this cross-appeal, it is first necessary to consider in some detail the factual and statutory context in which the s 19 hearing occurred.
The chronology of events filed by Samoa is reproduced above at [25]. In that context, it is necessary to make some additional observations about the events that bear on the cross-appeal and grounds in relation to the s 19 hearing.
First, the evidence sought to be led by Mr Pauga before the primary magistrate was directed to why he needed more time to prepare for the s 19 hearing, rather than being evidence of extradition objections to be adduced at that hearing. This is readily apparent from, for example, the affidavit of Mr Finlayson before the primary judge, as he stated:
[104]Had I been permitted to give evidence at the hearing on 8 and 9 July 2021, I was prepared to give evidence as to the “roadmap” document supplied to the court in February 2021 and the reasons why the Applicant had not had reasonable time to investigate the matters therein and to prepare for a s 19 EA hearing and to evidence and mount his extradition objections.
During the appeal, Mr Pauga conceded that was so. It follows that the evidence sought to be led can properly be characterised as directed towards obtaining an adjournment of the s 19 hearing on the basis that he had not had reasonable time to prepare for the hearing. Significantly, it also follows that the factual basis underpinning the primary judge’s conclusion as to the denial of procedural fairness, is incorrect. Given the lack of assistance given by counsel for Mr Pauga to the primary judge and the manner of and lack of clarity in his submissions before the primary magistrate, the error is understandable.
Second, and in that context, we accept Samoa’s submission that Mr Pauga had at least ten opportunities during the course of the extradition proceedings to produce evidence in respect to all relevant matters, including how long he needed to prepare for the s 19 hearing, and he did not take any of those opportunities. These opportunities occurred in the context where Samoa had, on 16 October 2020, filed and served its submissions and the material on which it relied in relation to the s 19 hearing.
The opportunities arose at least:
(a)at the hearing on 11 December 2020, and by the directions made that day (which counsel for Mr Pauga confirmed suited his purposes, but did not comply with);
(b)at the hearing on 12 February 2021 (during which counsel for Mr Pauga refused to confine his submissions to his failure to comply with directions and responding to Samoa’s submissions) and by directions made that day, which were again not complied with by Mr Pauga (including the direction to file and serve a written plan in affidavit form of the evidence, reports and witnesses that he intended to call);
(c)at the hearing on 23 February 2021, which represented another opportunity for Mr Pauga to provide evidence or explain why he needed more time;
(d)at the hearing on 12 March 2021 (during which Mr Pauga stated he was not ready to make the application for recusal of the primary magistrate despite the hearing being listed to hear that application) and by directions made that day (which were not complied with by him). It is noted that the s 19 hearing was listed on this occasion on dates almost four months later, after an exchange in which Mr Pauga’s counsel stated that he did not understand what “the extradition hearing” was, almost five months after Samoa filed their submissions and material;
(e)at the hearing on 5 July 2021 (which was brought on at the request of Samoa after an email from Mr Pauga’s legal representatives on 30 June 2021 suggested vacating the s 19 hearing), noting that at this time Mr Pauga had not complied with the previous directions (a circumstance raised during the hearing by counsel for Samoa); and
(f)at the first day of the s 19 hearing on 8 July 2021, during which counsel for Mr Pauga argued for an adjournment but did not indicate that he needed time to prepare evidence.
During the appeal hearing, Mr Pauga did not challenge Samoa’s submissions as to the number and nature of the opportunities provided to him. On none of those occasions did he either raise or provide evidence of the time he needed to prepare, the basis for the time required, the reason why directions as to the filing of evidence had not been complied with, or that he would seek to lead oral evidence at the s 19 hearing. Rather, at the various hearings he informed the primary magistrate (without prior notice or evidence), that he was making, or would be making, various applications. Mr Pauga informed the primary magistrate on 23 February 2021 that he intended to challenge various aspects of her Honour’s conduct of the hearings to date by filing a review in this Court (including her Honour’s ability to make directions as to the filing of affidavits for the s 19 hearing), and would do so by 12 March 2021. Tellingly, he failed to do so until 5 July 2021, only 3 days before the scheduled s 19 hearing.
We note that in Mr Pauga’s written submissions filed on 11 December 2020, he asserted without any supporting evidence that he required 24 to 36 months to prepare for the s 19 hearing. It was at that time the primary magistrate directed that he file, by 5 February 2021, a written plan as to the evidence, reports or witnesses to be relied on and a timetable as to when those would be available. That direction was made with his concurrence. The document he handed up to the primary magistrate at the hearing on 12 February 2021 (referred to as the “roadmap” and recited in full at PJ [154]) did not comply with the direction, as concluded by the primary magistrate at that hearing. As the primary judge observed at PJ [155], “[n]o lawyer acting reasonably could conceive of such a document as being a document of the kind that might comply with the direction made by the Primary Magistrate on 11 December 2020 (and acceded to by Mr Mancini, Mr Pauga’s counsel at the time)”. The reference to the roadmap document in Mr Finlayson’s affidavit, recited above at [44], which was to be the basis of his evidence at the s 19 hearing, is to this document, which did not comply with the primary magistrate’s directions.
We also note that during the s 19 hearing, on 9 July 2021, Mr Pauga submitted that he did not have the opportunity to address the roadmap when it was provided to the primary magistrate. That submission is entirely disingenuous. The transcript of the hearing on 12 February 2021 reflects that his counsel did address that document. Moreover, further opportunity was given to do so by the directions made on 12 February 2021 (set out in the chronology above), which he chose not to comply with.
In those circumstances, it is clear that: no further material was put before the primary magistrate at any stage of the proceeding that addressed the issues that were first raised in December 2020; and directions directed to those issues were not complied with.
Third, by a summary of the proceedings before the primary magistrate, it is difficult to fully capture the manner in which Mr Pauga conducted the proceedings before the primary magistrate without unduly lengthening these reasons. The primary judge summarised the various mentions before the primary magistrate at PJ [131]-[199], and the s 19 proceedings at PJ [200]-[242], reciting various aspects of the transcript. Mr Pauga makes no challenge to the accuracy of that summary (although Samoa questioned the completeness of the recitation of the correspondence in PJ [191], which is addressed below at [67]).
The approach of Mr Pauga’s counsel in the proceedings before the primary magistrate was described by the primary judge when considering his submissions as to bias, inter alia, at PJ [334] as follows:
… There was good reason [for the primary magistrate] to be frustrated. Mr Mancini persisted in disregarding the directions made without explanation. He made repeated oral applications without supporting materials or notice. He threatened applications to disqualify for bias but did not proceed with them, ultimately only advancing his bias submission on the basis that the Primary Magistrate had taken an active role in appearing through counsel in this Court and was required as a witness in these proceedings. Notably, the claim that there was a reasonable apprehension of bias in respect of the Primary Magistrate by reason of matters that occurred prior to the July Hearing was not pressed at the final hearing in the proceedings in this Court. He was disrespectful. He [was] feigning misunderstanding as to what was happening.
Although that description related to the application for bias, it is apt in relation to the conduct of the proceedings more generally. The primary judge also described Mr Pauga’s counsel at various times as advancing his submissions with “rudeness” and being “unhelpful and supercilious”: see, for example, PJ [72] and [302]. Those descriptions typify the conduct of Mr Pauga’s counsel before the primary magistrate, as reflected by the transcript of the s 19 hearing. In addition, his counsel acted in a bullish manner, refusing to accept the conduct of the proceedings by the primary magistrate if her Honour took an approach contrary to his submissions. In those circumstances, Mr Pauga’s counsel often ignored the primary magistrate’s decisions, attempted to reargue the position and, in doing so, alleged that he had been denied opportunity to make submissions, when such opportunities had been provided.
Fourth, Mr Pauga’s submission on this appeal that the directions made were without jurisdiction and contentious, as if to explain his breaches, is unacceptable. His evidence before the primary judge was that the failure to comply with the primary magistrate’s directions to file evidence was a forensic choice, it is to be assumed made on legal advice. Mr Pauga’s evidence before the primary judge was that he did not want to file material until the question of whether the primary magistrate had jurisdiction had been resolved. That had been resolved, adversely to Mr Pauga, before the matter was listed for the s 19 hearing, and no application for review in this Court was filed until 5 July 2021: see [71] below.
Directions are to be complied with unless or until they are overturned on appeal, varied or stayed. If an applicant is going to challenge such decisions, which are said to impact on the conduct of the proceedings, or to seek to vary them in some way, it is incumbent on them to do so in a timely manner. It was not open to Mr Pauga to conclude unilaterally that the directions were not valid and therefore decide not to comply with them, choosing instead not to initiate any proceedings to challenge the directions made, or even seek to vary them. No such applications were brought, in a timely way, or at all. Rather, Mr Pauga repeatedly chose to breach directions.
That said, on 23 February 2021, Mr Pauga did apply to the primary magistrate for a stay of her Honour’s directions made on 12 February 2021. That application was on the basis he was going to seek judicial review in this Court of various aspects of the conduct of the proceedings, including her Honour’s ability to make directions. That application reflects his understanding that he was required to comply with the directions. It was rejected on the basis there were no grounds to stay the directions, “particularly there being only a stated vague intention to bring judicial review applications with no draft of such application having been provided or any material in support”. As previously referred to, the primary magistrate then made a direction of liberty to apply to bring the matter back before her Honour. The appellant: did not exercise that liberty; did not file the proceedings in the Federal Court until 5 July 2021; and continued to breach directions made.
We note also that there is no ground of appeal challenging the primary judge’s finding made against Mr Pauga on this topic. His Honour concluded the contentions that the directions were made without jurisdiction were plainly misconceived and quite properly not accepted by the primary magistrate: at PJ [344] and see PJ [70]-[73], [261]. See also Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352 at [159]:
It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on “the admissibility of evidence”, on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative.
Also, as a starting point, when case management directions include that the evidence or material to be relied on is to be filed by a specified date in advance of the hearing or to be filed in affidavit form, a failure to comply with the directions ordinarily means the evidence cannot be relied on without leave of the decision-maker. No lawyer acting reasonably could have understood they were entitled to ignore the directions, and simply call oral evidence from witnesses instead. As must have been plainly understood by Mr Pauga and his counsel, compliance with such directions was not optional. Moreover, the primary magistrate, at times, made directions, including for material to be filed explaining the breach of earlier directions.
At the hearing on 5 July 2021, as had been the case on earlier occasions, Samoa’s submissions included that no evidence had been filed by Mr Pauga. Despite that, he did not raise that he intended to call evidence at the s 19 hearing.
Fifth, as referred to above, on 12 March 2021, the s 19 hearing was listed on 8 and 9 July 2021. On that occasion, further directions were made for the preparation for the hearing. The primary magistrate made clear to Mr Pauga that: he was granted liberty to apply to raise the jurisdictional points that he had complained about (which included the validity of any directions given); and if an application was made, a hearing would be set down for that purpose before the s 19 hearing: see PJ [188]. Mr Pauga did not exercise that liberty.
Sixth, in that context, Mr Pauga advanced a submission on this appeal that a s 19 hearing is to be conducted in two stages. Namely, a hearing in respect to s 19(1) is to be conducted, and only when the magistrate is satisfied of those preconditions can timetables be set and directions be made for the conduct of the s 19(2) stage. It follows that Mr Pauga is submitting that there must be a temporal separation between the s 19(1) hearing and the s 19(2) hearing. We will return to address the content of that submission below. However, we note that it is unclear how this submission, which contemplates timetables being set by the magistrate, sits with Mr Pauga’s submission that the primary magistrate lacked jurisdiction to make case management directions.
For present purposes, it is sufficient to note that this position was not advanced before the primary magistrate. In particular, it was not advanced in Mr Pauga’s written submissions filed on 11 December 2020 (in response to Samoa’s submissions filed on 16 October 2020), where instead he made substantive submissions as to both aspects of s 19. Moreover, on 12 March 2021, when the s 19 hearing was set down, it was for two days (to address all matters in s 19). On that occasion, Samoa addressed the content and procedure in respect to both ss 19(1) and (2), and explained that at the s 19 hearing it would address both aspects of the provision. We note that is in accordance with the usual practice of both aspects being heard at the same time. Samoa agreed that two days was sufficient on the basis that Mr Pauga had put forward no material to be relied upon (despite directions to do so). Mr Pauga ultimately acceded to only two days being set aside. Significantly, he conceded on this appeal that from March 2021, he understood that all of the matters in respect of s 19 would be heard on 8 and 9 July 2021.
Seventh, the listing of the s 19 hearing occurred in the context where, on 18 December 2020, Crow J in the Supreme Court of Queensland had dismissed Mr Pauga’s application for a writ of habeas corpus: see [133] below. In doing so, Crow J rejected Mr Pauga’s submission that there had been no valid remands pursuant to s 15(1). In dismissing the application, his Honour observed that Mr Pauga’s submissions were wide ranging, and in so far as complaints were made about the validity of subsequent remand before various magistrates acting persona designata, the avenue to challenge those decisions was by judicial review to the Federal Court (which had not been undertaken). This reflects that, as of December 2020, Mr Pauga was plainly on notice that any such challenges were to be advanced in this Court. The timing of his decision to file the proceeding on 5 July 2021 was also in this context.
Mr Pauga did not appeal Crow J’s decision. That said, he did apply to Crow J to recall the decision and reopen the proceedings, but that application was heard and refused. Crow J did not accept that Mr Pauga had not had an opportunity to be heard on each issue he wished to raise, and observed that if he sought to review his Honour’s decision, he should appeal it. We note the reasons of Crow J reflect, inter alia, criticisms of Mr Pauga’s conduct in failing to comply with the orders of the Supreme Court for the filing of submissions in relation to the earlier application, and the consequent effect on the conduct of the hearing.
Eighth, it is worthwhile focussing closer attention on the hearing of 5 July 2021. The conduct of Mr Pauga’s counsel during that hearing reflects his conduct during the proceedings more generally.
As reflected above at [25] and [47(e)], that hearing occurred as a result of Samoa calling on the matter urgently after receiving an email from Mr Pauga’s legal representatives on 30 June 2021: see the email extracted at PJ [191]. The email was in response to correspondence from Samoa which, inter alia, suggested that the s 19 hearing should be conducted online (given the particular circumstances arising from the COVID-19 pandemic). We note that the primary judge omitted the last line of that email from the extract at PJ [191]. That line stated, “[f]or all these reasons, the hearing next week should be vacated”. Bearing in mind that, by this time, almost nine months had passed since Samoa filed the material on which it relied and almost four months had passed since dates for the s 19 hearing had been set. Samoa expressly raised Mr Pauga’s correspondence indicating that he was going to request the hearing be vacated. Mr Pauga’s counsel disavowed any application to vacate the hearing, and stated that he would be present in person at the s 19 hearing. The primary magistrate understood (and stated her understanding) that there was no application for an adjournment of that hearing and that the representatives of Mr Pauga would appear in person.
In addition, as referred to above, during the hearing on 5 July 2021, Samoa: raised that Mr Pauga had not filed any material for the s 19 application in accordance with the many directions made; and submitted that he was “persistently, and consistently, and unexplainably in default of [the primary magistrate’s] orders” in the context of a matter which “need[ed] to proceed” given that he was in custody and Australia had obligations under international law to give effect to the extradition request. Mr Pauga was asked for any submission on those issues and responded simply by stating that they would be appearing in person and “so we are proceeding on that basis”. The primary magistrate then recited some aspects of the history of the matter, including the failure to comply with directions in relation to the filing of material.
If Mr Pauga was going to make an adjournment application, as he plainly intended to do, at the very least it should have been made during the hearing on 5 July 2021. That is especially so, given: the application had recently been foreshadowed, which had led Samoa to call the matter on; express opportunity was provided to make the application; and the s 19 hearing was listed only three days later. On this appeal, Mr Pauga submits that what counsel said at that hearing was that he was not making any adjournment application “now”, leaving open that he would be making an application at the s 19 hearing. If that was so, it reflects the manner in which Mr Pauga chose to conduct the proceedings before the primary magistrate. It reflects that his counsel chose to be deliberately opaque as to any intention to seek to adjourn the s 19 hearing. No lawyer acting reasonably could have considered that this was sufficient to put Samoa and the primary magistrate on notice that there definitely was to be an application to adjourn on the first day of the s 19 hearing. That is particularly so in circumstances where, as referred to above, the primary magistrate stated during the hearing on 5 July 2021 that Mr Pauga’s counsel had “made it clear there [was] no application for an adjournment of the [s 19] hearing”. It would also have been obvious to his counsel that the primary magistrate understood from what he had said, that there was to be no application. Indeed, as the primary magistrate observed on 9 July 2021, any reasonable person would have taken the statement at face value. Further, and despite that, at no time during the hearing on 5 July 2021 did counsel state he would be making an application on the first day of the s 19 hearing. Nor did he correct what Mr Pauga now claims was a misunderstanding by the primary magistrate. It can be inferred that this conduct was deliberate.
Importantly, on 5 July 2021, Mr Pauga’s counsel also did not raise with the primary magistrate that he had not had sufficient time to prepare for the s 19 hearing, nor did he provide any explanation for breach of the many directions made for the conduct of the s 19 proceedings. He also did not raise that he was going to seek to lead evidence orally at the s 19 hearing, noting that it is clear from the evidence before the primary judge that his intention was to adduce evidence confined to the question of an adjournment.
Ninth, the proceedings the subject of this appeal were filed in the Federal Court on 5 July 2021, but had not been filed at the time of the hearing before the primary magistrate on the same day. At that hearing, despite the fact that Mr Pauga’s obvious intention was to file the Federal Court proceedings imminently, his counsel did not inform either Samoa or the primary magistrate of this. This is also in a context where, as the events that followed reflect, it was his intention to submit to the primary magistrate on 8 July 2019 (without notice) that the filing of the documents in the Federal Court meant the s 19 hearing could not proceed.
The proceeding filed in the Federal Court on 5 July 2021 sought, inter alia, an interlocutory order restraining the primary magistrate from proceeding with the s 19 hearing. An urgent hearing was conducted before the primary judge on 7 July 2021. At that hearing, counsel for Mr Pauga stated that he anticipated the s 19 hearing would be vacated and adjourned in light of the Federal Court proceedings having been filed. Mr Pauga did not press the application for interlocutory orders and no relief was sought to restrain the primary magistrate. Instead, counsel for Mr Pauga flagged to the primary judge that if the s 19 hearing was not vacated, an interlocutory injunction would be sought. The primary judge, in light of the conduct of the proceeding, refused his request to have liberty to bring the matter on urgently for that purpose. As the primary judge observed, if the hearing before the primary magistrate continued to finalisation, “it was a consequence entirely” of Mr Pauga’s making given the delay, without explanation, in filing the Federal Court proceedings. We also note that Mr Pauga was capable of filing affidavits, given he had done so in the Federal Court proceedings by the time of this hearing before the primary judge.
The s 19 hearing
The s 19 hearing commenced on 8 July 2021, in the above context.
By this time, almost four months had elapsed since the hearing dates were set. At the outset of the hearing, counsel for Mr Pauga informed the primary magistrate of the Federal Court proceeding. As the primary magistrate attempted to ascertain the relevance of that proceeding, it became apparent that Mr Pauga was applying for her Honour to vacate the s 19 hearing (despite having stated on 5 July 2021 there was no such application): see the description of the events at PJ [200]-[217]. It became apparent that counsel was making more than one application at which time the primary magistrate said:
Well, I’d like you to indicate all of the grounds, because once you’ve indicated what applications you’re making…
After an interruption by counsel for Mr Pauga, her Honour continued:
… and I need you to at this point to be complete. I need you - and it's the only opportunity I will be offering you, that while you are now on your feet, you let me know what applications you’re making and the basis of those applications. Because at the directions hearing on Monday, l was given to believe that this matter would proceed today. There was no notice to this court on Monday that there were to be proceedings filed in the Federal Magistrates Court or the Federal Court.
We also note that during submissions, Mr Pauga’s counsel, referring to Samoa’s application, stated:
I don't know what application is being made today, but I suspect it's an application by my learned friend to – for your Honour to determine – to conduct proceedings.
That statement was entirely disingenuous, with counsel feigning a lack of knowledge in circumstances where, as conceded on the appeal, he was aware the hearing was for all of the s 19 proceeding to be heard. We also note that a day earlier during the hearing before the primary judge, counsel for Mr Pauga had submitted that he understood the primary magistrate had set down the hearing on 8 and 9 July 2021 to “determine anything and everything” and that “we foreshadow Samoa is seeking a final determination”.
In that context, during the application, which was heard during the morning of 8 July 2021, counsel for Mr Pauga did not advance as a basis for an adjournment that he needed time to prepare for the s 19 hearing, or had not had reasonable time to do so. In dismissing the application for an adjournment on the bases advanced, the primary magistrate detailed the history of the proceedings. This was accurately summarised by the primary judge at PJ [211]-[217], and given Samoa’s grounds of appeal, bears repeating:
[211]The Primary Magistrate then delivered oral reasons refusing the applications. They began with a summary of the history of the proceedings that reflects more briefly the chronology that has been described in these reasons. As to the hearing on 12 February 2021 her Honour said:
A bald application, verbal application, was made to have me recuse myself with no evidence supporting submissions and I refused to recuse myself on that basis. I then directed that Mr Pauga file and serve an affidavit setting out all steps taken prior to the 12th of February in furtherance of the directions made in December 2020, such affidavit to include the reasons why the directions of this Court in December had not been complied with. I also directed that Mr Pauga file and serve an affidavit as to a written plan as to the evidence, reports and witnesses he intended to call and a timetable as to when report, statements, etcetera would be available. And that was, in effect, simply a repetition of previous directions made and not complied with.
I directed that the two affidavits the subject of those directions to Mr Pauga on the 12th of February be filed and served before 4 pm on the 26th of February, and I adjourned the matter back before myself on the 12th of March. I should say that on earlier date I made a direction that any recusal application - that is, any application on behalf of Mr Pauga that I recuse myself - be listed for the 12th of March 2021 and I gave liberty to the parties to apply. On the 23rd of February, an application was made on behalf of Mr Pauga that I stay previous orders and there was a lengthy lot of submissions before l dismissed the application for a stay of my orders.
[212]Then the reasons dealt with the hearing on 12 March 2021 in the following terms:
On the 12th of March it came before the Court and Mr Pauga's legal representatives indicated to the Court that they were not ready to proceed with the application for recusal of myself from the hearing and indicated that they needed transcripts of the proceedings. I indicated to the parties on that date that I proposed listing the section 19 extradition application for hearing. Mr McKechnie said that one day only would be required. As things have turned out and in anticipation of possible further difficulties, the matter was set for two days, being today and tomorrow. I made further directions that Samoa file and serve any material upon which it relies before 4 pm on the 10th of June 2021, and I directed that Mr Pauga file and serve any material upon which he relies before 4 pm on the 24th of June 2021.
[213]Her Honour then dealt with the events of 5 April 2021 and said:
Mr McKechnie is also correct when he said the Mr Pauga is persistently and consistently and unexplainably in default of the Court's orders …
At no time in the directions hearing was there any indication that there would be either an application or applications, as it turns out, as have been made orally by Mr Mancini this morning or, indeed, any application to the Federal Court as was made yesterday.
[214]The Primary Magistrate then referred to the proceedings before Crow J and said:
And so I put the history of the matter on the record to indicate what I consider to be repeated attempts by Mr Pauga to delay these proceedings by any means possible without notice or with inadequate notice to either Samoa or the Court. What the intended outcome might be is a question for them, but what is being achieved is further delays in this matter in relation to which Mr Pauga has had no success at any level in relation to arguments before the Court.
[215]As to the claim of apprehended bias, her Honour said:
The proceedings have previously resulted in a dismissal of an application for stay of orders. The matters of jurisdiction have previously been ventilated and determined. The issue of my recusal is limited in terms of material before this Court to paragraph 73 to 81 of the affidavit of Mr Finlayson filed in the Federal Court yesterday, which is no more than a general dissatisfaction with refusal of orders previously made by me without anything to substantiate the requirements for the Court to be satisfied that there is a reasonable apprehension of bias, except to refer to my manner and demeanour on the 12th of March 2021, which at its highest was expressed as 'patronising behaviour'.
There has also been oral submissions made of my interrupting of Mr Mancini and there is also a reference in one of the transcripts to heated exchanges between myself and Mr Mancini. Now, accepting that that is the behaviour that another Court might determine is the behaviour I have engaged in, it falls far short of what is required for there to be a reasonable apprehension of bias by me towards Mr Pauga. And it will be for another Court to determine when they read all of the transcripts of all of these proceedings, which are attached to Mr Finlayson's affidavit, commencing at page 70 and going all the way through to page 412. I do not think it could be said that Mr Pauga has not had a fair go or a fair hearing.
[216]Then her Honour dealt with the issues raised in relation to the notices under s 78B of the Judiciary Act and said:
Other matters that have been raised relate to the notice under section 78B and Mr McKechnie's submissions, I accept, in relation to that argument that in the section 19 Extradition Act proceedings, my duties are administrative in nature as persona designate, and, in any event, Mr Pauga has not identified the matter arising under the Constitution or involving its interpretation that would give rise to me having a duty not to proceed. The only vague reference is to institutional integrity. There is no explanation of that. There is no evidence of that. And, in any event, I cannot determine constitutional matters, even if one had been identified, when one has not.
[217]After dealing with the then recent hearing in this Court, the Primary Magistrate said:
Mr Mancini promises much in terms of applications and delivers little, except at the door of Court orally, with the consequence that matters are delayed. So I dismiss and refuse the applications for a vacation of the hearing dates today and tomorrow. I dismiss the application for an adjournment of these proceedings. To the extent that it is necessary, given that I have made a previous order not stay proceedings, I further dismiss the further application to stay these proceedings. I also dismiss the application that I recuse myself and I determine, as has been the subject of previous orders, that I have jurisdiction to proceed to hear the section 19 application, the extradition application, and will proceed to do so.
…
The submissions to which the documents relied upon by Samoa … are submissions made on the 16ᵗʰ of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which l will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court.
Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26ᵗʰ of July, which was to include any material upon which he seeks to rely.
So that's my decision in relation to the refusal of the adjournment.
The essence of Mr Pauga’s argument is that a person is entitled to go from court to court seeking habeas corpus on the same facts in respect to the same detention. On that argument, he is not estopped and nor is it otherwise an abuse of process for him to run the same argument rejected by Crow J before the primary judge.
Mr Pauga relies upon decisions in quite different circumstances and legislative regimes, and upon a broader abstract concept of a general right to liberty under the common law of Australia. He pays little heed to the basis for his detention being the terms of the Extradition Act and its application to him. In doing so, he criticises the authority under the Extradition Act relied upon by Samoa, which concerned final judgments in relation to the operation of that Act, rather than habeas corpus applications per se. However, it is cases in that legal framework, or those that can properly be applied to that framework, such as immigration detention under the Migration Act 1958 (Cth), that really matter. The application of habeas corpus principles in quite different circumstances matters less, especially under state or territory law, although useful guidance may still be found. Rights at common law, such as to liberty addressed by habeas corpus, can be changed, replaced, adjusted, or even eliminated by legislation passed within the legislative competence of the Australian Parliament: see Coco v The Queen [1994] HCA 15; 179 CLR 427 at [9]; Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [42]-[43]. To the extent that any common law right conflicts with the Extradition Act, including as to liberty, the latter prevails, or at least qualifies or limits the operation of the common law right.
Mr Pauga does not assert that he was not trying to bring, in substance, the same application as he had before Crow J, but rather that he was entitled to do so. It is not to the point, as relied upon by Mr Pauga, that Samoa did not seek to replicate the evidence that was before Crow J before the primary judge. That submission presupposes that a habeas corpus application brought in the context of detention pursuant to the provisions of the Extradition Act is immune from the ordinary operation of res judicata, issue estoppel and, most relevantly, abuse of process. That reliance assumes the correctness of his argument.
Samoa correctly notes that while the primary judge cites res judicata, issue estoppel and abuse of process as the basis for his finding that Mr Pauga was not entitled to re-litigate the question of whether he was not detained in accordance with s 15, the substance of his Honour’s reasoning was directed more to abuse of process. The relevant abuse was to seek to re-litigate precisely the same question as had been determined adversely by Crow J, namely whether Mr Pauga had been brought before a magistrate as soon as practicable.
The core and substance of Samoa’s submission is that in order for Mr Pauga’s argument as to his entitlement to raise the same question as determined adversely by Crow J to be successful, this Court would need to find that the following authorities were all wrong on this topic: Vasiljkovic v O’Connor [2010] FCA 1246; 276 ALR 326 (Vasiljkovic 1st instance) at [54]-[61], with a focus on abuse of process, and upheld on appeal by Vasiljkovic v O’Connor (No 2) [2011] FCAFC 125 (Vasiljkovic Full Court), especially at [15]-[16], [22] and [28]; Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727 at [23]-[37], in particular referring to both Vasiljkovic cases at [26]-[28]; and Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 at [55]-[56].
In Vasiljkovic 1st instance, Edmunds J at [60], in response to an application for a writ of habeas corpus, found that a prior determination that resolved that detention in the course of extradition proceedings was lawful and precluded the application before his Honour by the operation of the rule of res judicata. His Honour concluded that, as a result, there was no discretion to allow the proceeding to continue, and by the operation of law the applicant was not able to maintain the proceeding because the plea of res judicata, if made out, is a complete bar to the claim (as the cause of action is extinguished by the first judgment). In Vasiljkovic Full Court, in dismissing the appeal, Jessup J, with whom Keane CJ and Dowsett J agreed, expressly held at [22] that this aspect of Edmunds J’s decision was the clearest of cases for the application of the principle of res judicata to a claim of habeas corpus. Once a further claim of habeas corpus can be precluded by res judicata, there is no logical reason why other protections of the judicial process, such as issue estoppel and abuse of process, should not apply.
Mr Pauga maintained his explicit stance that there was no barrier to endless applications for habeas corpus, notwithstanding that Vasiljkovic 1st instance was also approved of by the Victorian Court of Appeal in Censori v Adult Parole Board of Victoria [2015] VSCA 254; 254 A Crim R 455 at [38]-[62]. Those passages in Censori involved analysis of a range of authorities, including those relied upon by Mr Pauga. The Full Court concluded that abuse of process remained applicable to an application for habeas corpus, in the context of a statutory regime for the interstate transfer of prisoners, authorising imprisonment that had been found to be valid much earlier. One of the grounds of appeal in that case was that the primary judge had erred in relying upon Vasiljkovic 1st instance in deciding that it would be an abuse of process for Mr Censori to re-litigate issues concerning habeas corpus that had been conclusively determined in earlier proceedings. The Court of Appeal in Censori observed at [62] (footnotes embedded; emphasis added):
The judge in the present matter held that the application was an abuse of process, in so far as the re-litigation of “the issues of the effect of the exercise by the Governor of Western Australia of the royal prerogative of mercy, and of the [appellant’s] status in Victoria as a person subject to life imprisonment, would involve a clear and direct collateral attack on the decision of Harper J”, contrary to the public interest in the finality of judicial decisions and raising the prospect of inconsistent decisions of the Court: Censori v Gillard (2015) 45 VR 605; 249 A Crim R 486 at [77]. It followed, applying general principles concerning abuse of process, that the decision of Harper J as to those matters was binding in the present proceeding. Apart from cases concerning those general principles, the judge referred to the decision of Edmonds J in Vasiljkovic v O’Connor (2010) 276 ALR 326, in which an application for habeas corpus was dismissed as an abuse of process because it sought to re-litigate matters raised in an earlier proceeding for review. This case shows, although it did not concern a further application for habeas corpus, that the principles of abuse of process apply to proceedings seeking relief by way of habeas corpus.
In light of the above, we adopt the pithy conclusion by Jackson J in Bethell at [36], finding “any proposition that habeas corpus is in some special category which prevents the court from restraining abuses of its process to be incorrect”. Both Jackson J and the primary judge applied Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507 at [24]-[26], as to abuse of process. The attempt by Mr Pauga to re-agitate substantially the same arguments that had failed before Crow J was clearly an abuse of process of the kind identified in Tomlinson. The primary judge was correct not to countenance it. Appeal ground 2, if it arises at all, must fail.
Personum designata
This topic:
(a)directly covers appeal grounds 4, 5, 8 and 10, which are directed to the contention that the s 19 hearing, and the steps taken prior to that hearing were not conducted personum designata; and
(b)collaterally covers appeal grounds 6 and 12, which are directed to the notion that for the jurisdiction under s 19 to be exercised personum designata, s 19(1) requires a specific application to be made to the primary magistrate, not merely made to a prior magistrate and then passed on to the primary magistrate.
The central proposition underpinning all of these appeal grounds, as advanced unsuccessfully before the primary judge, was the contention that both at the initial stages in the Queensland Magistrates Court following Mr Pauga’s arrest on 20 August 2020, and at the s 19 hearing on 8 and 9 July 2021, the proceedings were conducted by a magistrate as a member of a court, not, as required, by a magistrate “acting in a personal capacity”, referring to the executive jurisdiction bestowed personum designata by s 45B(1).
The primary judge succinctly identified the substance of these arguments, presented in a non-differentiated way, as constituting two quite distinct aspects as follows at PJ [68]:
It is appropriate to differentiate between two distinct aspects of the way the claim was put. First, it was said that the proceedings conducted by the magistrates were conducted in circumstances that had the characteristics of judicial proceedings by reason of the place where those proceedings were conducted (a court building), the physical attributes of the court rooms used for the proceedings, the listing and announcement of the proceedings, the way in which the magistrates were addressed in the course of the proceedings and the way in which orders were made and carried into effect. Secondly, it was said that in certain respects what was said and done by particular magistrates indicated that they misunderstood the nature of the power that they were exercising.
The first aspect, which may be regarded in the present circumstances as one of form, devoid of any real substance, was swiftly disposed of by the primary judge by reference to practicality and authority in terms that are plainly correct. These arguments warrant no more than reproduction and emphatic endorsement of his Honour’s reasoning and conclusions, including as to the inherent weakness of this aspect of the argument advanced by Mr Pauga:
[69]It is necessary to place the first of these two aspects in the relevant practical context. The Extradition Act entrusted the relevant statutory authority to persons who had been appointed as magistrates. It required those magistrates to conduct hearings for the purposes of the extradition proceedings of persons who were under arrest and, unless released on bail, were to be held in custody. Therefore, as a matter of practicality the hearings that were required to be conducted for the purposes of the Extradition Act needed to occur at a place where it was possible to deal in an appropriate way with an arrested person who was being held in custody (or was to comply with bail conditions). Court rooms were an obviously suitable place for such hearings. Indeed, one may infer from the nature of the proceedings and the judicial office held by the persons who could exercise the administrative authority conferred by the Extradition Act that the legislation contemplated that those persons would use the court rooms and other facilities available to them as judicial officers in order to conduct the administrative proceedings.
[70]As to the nature of the power of a magistrate or eligible Judge when conducting extradition proceedings under the Extradition Act, in Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352] at [159], Finn and Dowsett JJ said:
It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on 'the admissibility of evidence', on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative.
[71]Further, as was observed by French CJ in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [36], where an eligible judge is appointed by legislation to discharge a substantial non-judicial function, then the hearing of an application before the judge under the legislation ‘will yield a decision which is closely linked to the exercise of jurisdiction conferred on the Supreme Court by the Act. It is very likely to involve the use of the facilities and services of that Court’. Although the point was being made for a different purpose, implicitly such a course is appropriate and indeed is to be expected.
[72]Finally, there is no suggestion that those who were acting for Mr Pauga were under any misapprehension as to the administrative nature of the proceedings. Indeed, as will emerge, they went to rather extraordinary lengths to emphasise that aspect in ways that, at times, were both unhelpful and supercilious. Therefore, it cannot be said that they did not understand the character of what was occurring. Likewise, those acting for Samoa clearly understood the nature of the proceedings.
[73]In those circumstances, there is a distinct air of unreality in the protests made before the magistrates and in the submissions made in these proceedings to the effect that there were aspects of the way things were done that had the character of judicial proceedings. If those participating on behalf of the parties to the proceedings well understood the nature of the proceedings, all those contextual aspects were of no moment.
The primary judge therefore put aside the first aspect as being, in effect, form without substance. His Honour was correct to do so, especially by reliance on authorities that are directly relevant in the area of extradition generally and the Extradition Act in particular, rather than cases dealing with the general topic of personum designata in very different contexts, and indeed different countries such as Canada, which were relied upon by Mr Pauga.
The primary judge considered that the second aspect, that the magistrates who had any aspect of this extradition proceeding before them, but especially the primary magistrate, misconceived the nature of the power or authority being exercised, warranted closer consideration. His Honour concluded again what mattered was the substance of what had taken place: see PJ [74]-[75]. The primary judge observed that on this aspect, Mr Pauga had not differentiated from the first aspect in the way it had been put. None of the grounds of appeal seem to take direct issue with the conclusions his Honour reached on this more substantive aspect, but they persist with the approach of conflating the two aspects by continuing a focus on form rather than substance. As already noted, and repeated below, it is the substance of what took place that is determinative. Although inadequacies of form can undermine and in some cases overwhelm substance, that is not what happened in this case, as his Honour effectively and correctly found.
Each of appeal grounds 4, 5, 8 and 10 must be rejected for the following reasons:
(a)In deciding what the primary judge identified as the second proposition referred to above at [195], his Honour correctly rejected the proposition that it had been demonstrated that any of the magistrates purported to exercise judicial power or misunderstood the power that they were exercising (see PJ [252]-[262]), concluding at PJ [262]:
The evidence of the exchanges between counsel and the Primary Magistrate at the July Hearing and earlier hearings was insufficient to establish that her Honour misunderstood the nature of the power that was being exercised. The use of the Form 44s and other forms simply reflect the adoption of those instruments for convenience. The contents of the documents makes clear that they were prepared in respect of extradition proceedings. For reasons that have been given, the adoption of such procedures is a course that is to be expected. Those matters did not call in question whether the Primary Magistrate (or other Queensland magistrates who dealt with the remand of Mr Pauga) properly understood the nature of the power they were exercising.
(b)Similarly, the primary judge at PJ [265]-[274], rejected the third proposition referred to at [30(c)] and [172] above, which asserted that the court forms that had been adapted for use in the extradition proceeding were invalid, and related arguments. As previously observed, while his Honour was critical of the clumsy and inappropriate adapted use of such documents in the absence of prescribed forms to record court appearances and continued remand (which did in places, at first blush, create the possible impression of the exercise of judicial power), his Honour concluded that the forms used nonetheless recorded what had in fact taken place. That is, an executive process carried out personum designata, not a judicial process or the exercise of judicial power. Except to the extent that the conclusions his Honour reached reflect the view that multiple remands were necessary under s 15(2) (addressed above at [173]-[180]), which has been successfully challenged by Samoa, no error on the part of his Honour has been demonstrated. As noted above at [172], we recommend that bespoke forms be developed to ensure that the forms used, on their face as well as in substance, they reflect the executive process taking place, and the executive powers being exercised.
As to:
(a)collateral appeal ground 6, which in substance contends that there needed to be a separate written application made to the primary judge, not merely an oral application made to a prior magistrate; and
(b)collateral appeal ground 12, which in substance contends that once a s 19 application has been made to one magistrate, because it is a personal function, it cannot be passed on to be heard by another magistrate (here, the primary magistrate),
both formed part of the arguments advanced by Mr Pauga. Both were rejected by the primary judge as part of the consideration of the nature of the proceeding and as part of the determination of the sixth proposition: see PJ [60]-[61] and PJ [281]-[288]. His Honour correctly concluded, for the practical and entirely conventional reasons he gave, that there was no requirement either to make a written application for the purposes of s 19 once the extradition proceeding was on foot or, in this case, to make a separate application to the primary magistrate. The latter was advanced upon the misconceived basis that only this could cause the primary magistrate to be acting personum designata. The primary judge correctly found that an application already made to one magistrate could be passed on to another. In any event, his Honour found that even if a separate application was needed, it had been made. Grounds 6 and 12 must therefore fail.
It follows that all of the grounds directly or indirectly challenging the primary judge’s conclusions on or related to the topic of personum designata must be dismissed.
Bail
At the conclusion of the hearing of submissions on the appeal, cross-appeal and grounds of contention, Mr Pauga applied for bail. For clarity, it is convenient in this section to refer to the eighth respondent, Samoa, alone as the bail respondent, who has at all times opposed the grant of bail. The Attorney-General did not participate in the bail application aspect of the proceeding below or on appeal.
Mr Pauga had originally sought the grant of bail by way of interlocutory relief in his original notice of appeal filed on 3 October 2022, based on s 23 of the Federal Court of Australia Act 1976 (Cth), seeking to have the application heard by a single judge prior to the appeal. That application was maintained in each subsequent iteration of the notice of appeal. On 10 November 2022, Mr Pauga moved for that interlocutory relief before Bromwich J, but after that application had been heard and judgment reserved, he sought (with the concurrence of the bail respondent) that judgment not be delivered and the bail application instead be heard and determined by the Full Court.
After hearing the bail application, the Full Court adjourned briefly before resuming and dismissing that application.
Mr Pauga’s bail application was refused before there had been any determination of the appeal, the cross-appeal or two notices of contention. As each of those processes has now been determined adversely to him, that reinforces the conclusion we made at the time, in the sense that his position for the grant of bail is now weaker than when it was refused, but does not form part of the reasons for refusing bail. For completeness, it should also be noted that given the conclusions reached on the cross-appeal, Mr Pauga’s detention is no longer under s 15(2) because the extradition process has moved past that basis for remand, to remand for the purpose of the fourth stage of extradition proceedings, namely surrender pursuant to the restored Warrant of Committal.
The following are our reasons for refusing bail.
Background
It is appropriate to recall that there were two separate proceedings before the primary judge, with bail applications being made and refused in both:
(a)the s 21 review from the s 19 findings of the primary magistrate, which was dismissed by the same primary judge, with the decision and reasons published the same day as the decision and reasons the subject of this appeal: Pauga v Samoa, see above at [33]; and
(b)Mr Pauga’s original habeas corpus proceeding before the primary judge, giving rise to this appeal proceeding.
Bail was refused by the primary judge as part of the s 21 review proceeding because Mr Pauga was unable to meet the test of special circumstances for the grant of bail as required by s 21(6)(f)(iv): see Pauga v Samoa at [53]-[60]. There has been no appeal from the primary judge’s orders dismissing the s 21 appeal, nor any application for leave to appeal from his Honour’s decision to dismiss the application for bail made in that proceeding.
Although Mr Pauga was partially successful in the habeas corpus proceeding before the primary judge upon a finding of a denial of procedural fairness in the proceedings under s 19, he wholly failed in the substance of his habeas corpus case. His Honour dismissed the bail application despite Mr Pauga’s limited success at that stage, and subsequently gave reasons for that refusal at the end of his reasons: see PJ [426]-[440]. There has been no appeal from the primary judge’s orders refusing bail in this proceeding, nor any application for leave to appeal from his Honour’s decision to refuse bail.
The present bail application is therefore a fresh interlocutory application in this appeal proceeding. Strictly speaking, no regard needs to be had to the primary judge’s reasons for refusing bail given that this is a fresh bail application, rather than an appeal or review. However, his Honour’s reasons remain generally relevant and in any event, that reasoning is partially embraced by Mr Pauga and is opposed by the bail respondent.
In considering, but refusing, the grant of bail in the habeas corpus proceeding, the primary judge characterised the bail application brought by Mr Pauga as seeking to invoke a common law jurisdiction to grant bail, where the Court’s jurisdiction to grant relief in the nature of habeas corpus was invoked: see PJ [427]. His Honour found that there was merit in the argument advanced by Mr Pauga that there is a substantive difference between: a case in which there has been a valid exercise of executive power conferred by the Extradition Act, such that the statutory test for the grant of bail applies; and a case in which that exercise of executive power is invalid, such that a common law supervisory jurisdiction and power to protect the right to liberty from detention without lawful authority applies: see PJ [428]-[430].
That much may be accepted if there has been a finding of invalidity, or indeed if one of the stages of extradition are resolved in favour of the person who is the subject to the proceeding, and that person is still detained despite provisions of the Extradition Act requiring release. In circumstances such as that, a habeas corpus application is a mechanism by which the ordinary operation of the Extradition Act can be enforced. Although that could be achieved just as readily by seeking relief in the nature of mandamus to compel release in accordance with the terms of the Act that apply when a determination has been made that requires or compels release: see, for example, ss 7(1)(c), 17(2A), 19(1)(a), 21(2A)(a) and 22(5)(a).
The primary judge found that the common law basis for bail applied not just when there had been a finding of invalidity, but when a habeas corpus application is made alleging invalidity of the detention of a person the subject of an extradition proceeding, and implicitly at least, such an allegation having some substance and therefore some serious prospect of resulting in release from detention. Upon that basis, his Honour determined that Mr Pauga’s application for bail was to be distinguished from an application for bail under the Extradition Act as addressed by the High Court in Cabal, in which the provisions of the Act had been validly invoked: see PJ [430]. His Honour reasoned that otherwise the invalid invocation of an extradition proceeding would justify subjecting a person to restraints upon their liberty with bail only in special circumstances, a barrier to liberty that would not otherwise arise. This reasoning on its face only properly applies when the detention is found to be invalid, not just alleged to be invalid.
The primary judge then turned to English and Australian case law, as to when a common law habeas corpus basis for the grant of bail applied: see PJ [341]-[437]. However, his Honour was not persuaded that the limited success Mr Pauga had achieved by a finding of a denial of procedural fairness at the s 19 hearing was such that there was any reasonable prospect of him succeeding in his claim to an extent that would result in his release from custody on the basis that his detention had been unlawful. The primary judge, therefore, was not persuaded that it would be appropriate to order his release on bail: see PJ [438]-[439].
A question for determination as part of considering the application for bail made to this Court was whether, in circumstances in which there has been no finding of invalidity (which was the position at the time of this application), and therefore no basis for concluding that the requirements for release under the Extradition Act have not been complied with, there is any basis for applying a test for bail outside the requirements of that Act.
Mr Pauga relied upon written submissions originally furnished to Bromwich J, and despite an opportunity to do so, did not advance any further oral submissions before this Court. He had submitted that there is presently no valid basis for his detention under the Extradition Act or otherwise, relying upon invalidating errors in the extradition process unsuccessfully argued to exist before the primary judge and sought to be maintained on appeal. Those arguments have since failed as detailed above, but relevantly had not been resolved in his favour at the time of the bail application. He also argued that the reasoning of the primary judge at PJ [428]-[437] as to the test for bail was largely correct, save that prospects of success in the extradition proceeding to date or on remittal were not required.
The bail respondent’s case was that Mr Pauga’s application is based on: a misunderstanding of the law that applies to bail, contending error on the part of the primary judge in departing from the bail regime in the Extradition Act; a mistaken understanding of the relevant factors; and reliance on evidence that is mostly more than a year old, although it may be noted that aspects of it are unlikely to have changed. It is therefore submitted by the bail respondent that Mr Pauga has not demonstrated strong prospects of success in his appeal (which has since failed), an absence of any special circumstances attracting the discretion to grant bail, and a failure to demonstrate that he does not pose a real risk of flight.
The test for bail
The effect of the primary judge’s reasoning on bail in this proceeding seems to be that if there are sufficient prospects of establishing invalid detention under the Extradition Act, it may not merely be a reason for the grant of bail under that Act. Instead, it may also be a reason for the grant of bail at common law based on habeas corpus, and thereby applying a common law discretion with special care and caution having regard to international obligations in extradition. No overt test for the grant or refusal of bail was expressly suggested by his Honour in lieu of the statutory test of special circumstances applying at the various stages of the extradition process under the current legislative regime. We do not agree with that conclusion.
One of the cases relied upon by the primary judge was R v Spilsbury [1898] 2 QB 615, a decision on the jurisdiction of the English High Court to grant bail pending extradition proceedings under the Fugitive Offenders Act 1881 (UK), cited and quoted from by the primary judge at PJ [431]-[434]. It should be noted that proceedings under the Fugitive Offenders Act per s 5, were required to be heard by a magistrate in the “same manner, and hav[ing] the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence within his jurisdiction”. In that context, the test for extradition on authenticated evidence was a strong or probable presumption that the fugitive committed the extradition offence. No such regime for extradition or bail has existed in Australia since the 1988 enactment of the Extradition Act. No prima facie case of the commission of an extradition offence is required to be established for extradition under that Act, unlike the regime under the Foreign States Act, and a magistrate determining eligibility for surrender is not conducting any kind of criminal proceeding.
In our opinion, Spilsbury has little real value to the question of bail in extradition proceedings, statutorily grounded as it is in criminal law reasoning, and where a specific provision has been made for bail, and limitations on bail, by the legislature in the Extradition Act. As the High Court observed in Cabal at [72]:
In our opinion, it is an error in a bail application in an extradition matter to take into account that there is “a predisposition against unnecessary or arbitrary detention in custody” [quoting from Holt v Hogan (No 1) (1993) 44 FCR 572 at 579]. The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account “those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime”' [also quoting from Holt v Hogan at 579]. Those circumstances may be taken into account in considering the exercise of discretion after special circumstances have been established. But they can play no part in determining whether the applicant has established special circumstances.
There does not appear to be any reason why similar reasoning does not apply to any presumption of liberty to be found in habeas corpus. It must give way to statute, although it may inform the approach to be taken to the application of the statutory provisions.
So long as an extradition proceeding remains on foot and without any finding of invalidity, and so long as remand as part of that proceeding remains on foot and without any finding of invalidity, the Extradition Act governs whether that remand is in custody or on bail. That is, habeas corpus, if it is needed at all, is necessarily confined to a situation in which detention under such a statutory regime itself is found to be invalid so that the detention is also invalid. This assumes that in such circumstances detention has nonetheless continued contrary to the requirement for release under provisions in the Extradition Act for each stage of the extradition process.
We therefore conclude that the bail provisions of the Extradition Act continue to apply to any application for bail by a person detained under that Act, and there is no proper basis for the determination of bail outside that regime so long as that detention has not been found to be invalid. A compelling argument that the detention is itself invalid under the Extradition Act, which is likely to be a very rare event, may contribute to a view that this constitutes special circumstances for the grant of bail pending the determination of the case in which that invalidity is asserted. However, that would remain a determination under the Extradition Act, and the application of the test for bail under that Act, not some departure from that test.
Unless and until there has been a finding that the extradition proceeding has itself been found to be invalid, the statutory remand and bail regime prevails. Remand on bail beyond that regime is not possible, and if the extradition proceeding is found to be invalid, the power of remand no longer exists such that there is no need for the equivalent of bail, except when release does not take place as required: as occurred in Chan v Commonwealth, High Court of Australia, Stephen J, unreported, 12 December 1980; see also Matson v Attorney-General [2022] FCA 790 per Logan J at [49]-[51], citing and quoting Chan v Minister for Justice and Customs [2001] FCA 170; 108 FCR 65 at [20]-[21], and finding that such a power does not exist at the s 22 surrender determination stage of extradition. It may be that common law principles underpinning habeas corpus may be relied upon if release as required by the Extradition Act has not taken place, because in those circumstances the test for bail under that Act would not apply, but that is not the present situation.
Special circumstances
In addressing the special circumstances test for the grant of bail under the Extradition Act, Mr Pauga asserted that:
(a)unlike many extradition cases, he is not a fugitive from justice, a reference to being an Australian citizen formerly residing in Queensland for decades, with a wife and children in Australia and substantial ties to the jurisdiction, rather than someone who has fled to Australia; and
(b)the content of international obligations is capable of constituting special circumstances, asserting by convoluted reasoning that Australia has no international obligation to surrender him because there is no binding extradition treaty, but rather, only a lesser scheme under a Commonwealth countries regime, which he detailed.
The first point takes Mr Pauga nowhere because that is not a distinction of any moment to the operation of the Extradition Act. Being or not being a fugitive is not a materially distinguishing feature for the purposes of that Act, and does not amount to such a difference as to amount to special circumstances.
As to the second point, it is not unusual for extradition to be sought by a country with whom Australia does not have an extradition treaty, for example, the United Kingdom and Croatia. There is nothing in the Extradition Act to suggest that any different test applies to such countries. It follows that this too does not amount to special circumstances.
The remainder of the arguments Mr Pauga advanced related to such things as the duration of his detention, none of which are capable of amounting to special circumstances. We were not satisfied that these, or any of the other features of this case relied upon by Mr Pauga, constituted special circumstances. That included his health, for which the evidence does not rise to the level of special circumstances, especially as there is no current evidence in that regard. Even a serious health condition is generally unlikely to amount to special circumstances, although that cannot be determined in the abstract in any given case.
Flight risk
The balance of Mr Pauga’s submissions addressed the real risk of flight independent of bail conditions, and rely upon an earlier passage in Cabal at [61] which addresses this second test for bail, being the absence of any real risk of flight. It is not necessary to determine this question, because the first hurdle of special circumstances has not been surmounted. It is not desirable to comment on flight risk on a hypothetical basis.
Conclusion
As Mr Pauga did not establish any special circumstances for the grant of bail, his application for bail had to be refused at that threshold. That conclusion is now fortified, post the refusal of bail, by the success of the cross-appeal, which reinstates the Warrant of Committal made by the primary magistrate under s 19(9), to await surrender or release at the fourth stage under s 22, the s 21 appeal having been dismissed. As already noted, the remand and detention is now authorised by the Warrant of Committal, not by the s 15(2) remand which has concluded.
I certify that the preceding two hundred and twenty-seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wigney, Bromwich and Abraham. Associate:
Dated: 13 April 2023
SCHEDULE OF PARTIES
SAD 151 of 2022 Respondents
Fifth Respondent:
ANTHONY GETT
Sixth Respondent:
ROSEMARY GILBERT
Seventh Respondent:
BELINDA MERRIN
Eighth Respondent:
SAMOA
Ninth Respondent:
ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Tenth Respondent:
ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
Cross-Appellants
Second Cross-Appellant:
SAMOA
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