Pauga v Samoa

Case [2022] FCA 1097

FEDERAL COURT OF AUSTRALIA

Pauga v Samoa [2022] FCA 1097

File numbers: SAD 143 of 2021
Judgment of: COLVIN J
Date of judgment: 16 September 2022
Catchwords:

EXTRADITION - application for review under s 21 of the Extradition Act 1988 (Cth) - where applicant submits that the supporting documents produced to the magistrate under s 19(2)(a) were not duly authenticated - where supporting documents consisted of a bundle of documents affixed by a ribbon and seal to a certificate purporting to authenticate the bundle - where the seal of the Supreme Court of Samoa was affixed to the certificate - whether the seal affixed to the ribbon binding the bundle of documents to the certificate corresponds to the seal referred to by the terms of the certificate - whether the seal of the Supreme Court of Samoa is a seal for the purposes of s 19(7)(b)(i) - whether the certificate must specify the dates of the documents it purports to certify - whether the certificate must list the annexures to the affidavits it purports to certify - whether the certificate must by its terms identify copies of documents as copies - whether the certificate must by its terms identify copies of documents as being true and correct copies - whether the motto for the State of Samoa appearing on the seal must be translated into English - whether the respondent can rely on legal arguments not put to the magistrate - nature of the rehearing available under s 21 - further submissions to be received regarding appropriate relief

BAIL - application for bail under s 21 of the Extradition Act 1988 (Cth) - whether the delay in the final hearing of the substantive application is a special circumstance - whether the substantive application has strong prospects of success - application refused
Legislation: Extradition Act 1988 (Cth) ss 19, 21, 21A
Cases cited:

Cabal v United Mexican States (No 3) [2000] FCA 1204

Federal Republic of Germany v Haddad (1990) 21 FCR 496

Haddad v Larcombe (1989) 42 A Crim R 139

Kelly v New Zealand [2022] FCA 158

Matson v Attorney-General (Cth) [2021] FCA 161

Prabowo v Republic of Indonesia (1995) 61 FCR 258

R v Bolton; Ex parte Beane (1987) 162 CLR 514

Rahardja v Republic of Indonesia [2000] FCA 1297

Republic of South Africa v Dutton (1997) 77 FCR 128

The Republic of Finland v Tervonen [2007] FCA 2107

United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165

Zoeller v Federal Republic of Germany (1988) 19 FCR 64

Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Division: General Division
Registry: South Australia
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 61
Date of hearing: 22-23, 27-28 June and 7 July 2022
Counsel for the Applicant Mr G Mancini with Mr GJ Finlayson
Solicitor for the Applicant Diaspora Legal
Counsel for the First Respondent: Mr M McKechnie with Ms G Devereaux
Solicitor for the First Respondent: Commonwealth Attorney-General's Department
Counsel…

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AGLC
Pauga v Samoa [2022] FCA 1097
Case
[2022] FCA 1097
Decision Date

CaseChat Overview and Summary

In the case of Pauga v Samoa, the applicant, Mr Pauga, sought review of a decision to extradite him to Samoa. The key issue before the court was whether the supporting documents submitted for the extradition proceedings were properly authenticated. The applicant argued that the documents were not duly authenticated as required by section 19(2)(a) of the Extradition Act 1988 (Cth). The supporting documents in question consisted of a bundle of documents attached to a certificate purported to authenticate the documents. The certificate included a seal of the Supreme Court of Samoa. The applicant raised several points concerning the authentication process, including whether the seal on the documents corresponded to the seal mentioned in the certificate, and whether the seal was a valid public seal under the Act. The court found that the authentication process was valid despite the discrepancies raised by the applicant. It held that the seal on the documents was indeed the official seal of the Supreme Court of Samoa, and that the certificate correctly described the documents, even if it did not list the annexures to the affidavits. Additionally, the court found that the seal was a valid public seal under the Act. The applicant also sought bail pending the outcome of the substantive review application. The court rejected the bail application, finding that the applicant had not demonstrated a special circumstance warranting bail and that the substantive application did not have strong prospects of success.

The court concluded that the application for review must be dismissed. The court further noted that the matter was heard immediately after related proceedings in which Mr Pauga had sought relief in the form of a writ of habeas corpus. The court proposed to deal with the costs in both applications together. The court ordered that the application be dismissed and that the question of costs be reserved for a later determination. Any party seeking an order for costs must file a minute of proposed orders by 7 October 2022, together with submissions and any supporting affidavit. The Federal Court Rules 2011 govern the entry of orders.

Orders

Orders of the court

1. The application is dismissed.

2. The question of any order as to costs of the proceedings be reserved for determination on a date to be fixed.

3. On or before 7 October 2022 any party seeking an order for costs of the proceedings shall file a minute of proposed orders stating precisely the terms of the cost order sought together with submissions of no more than 5 pages and any affidavit in support.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For reasons I have already given, at the time of hearing the bail application I had heard the whole of the substantive review application. I was in the unusual position for an interlocutory application of having received all the material and having heard all of the contentions advanced on the substantive application. For reasons I have recorded, I was not persuaded as to the merit of the contentions advanced to support the application. For that reason, I determined that the application for bail in these proceedings must be refused.Conclusion and costs For the reasons I have given the application must be dismissed. The present proceedings were heard immediately after related proceedings in which Mr Pauga sought relief in the nature of a writ of habeas corpus and related relief. As I have indicated, I will be delivering these reasons at the same time as the reasons in those related proceedings. I propose to continue to deal with the two applications together and for that reason will adopt the same course in relation to costs as I have proposed in the proceedings concerning the related proceedings.

Ratio Decidendi

Legal Principle Established

After the two certifications, there is the following declaratory statement as to the manner in which the certification was being effected (Declaration). It says:Given under my hand and the official seal of the Supreme Court of Samoa affixed to this certificate and the ribbon binding all of the attached documents. Underneath the Declaration is the seal of the Supreme Court of Samoa and the signature of Ms Simi-Vaai as Registrar. The contentions advanced for Mr Pauga on the final hearing of the statutory review application in this Court all concerned whether the documents in the Bundle had been 'duly authenticated' for the purposes of s 19. Various other points were not pressed. In the result, there were seven contentions advanced. They were as follows:(1)The Declaration refers to a bundle of attached documents to which the official seal of the Supreme Court of Samoa has been affixed to the ribbon binding all of the attached documents. It is the Red Seal and not the official seal of the Supreme Court of Samoa that is affixed to the ribbon. Therefore, the description in the Declaration is not a description of the Bundle. For that reason, it must be some bundle other than the Bundle that is the subject of the Declaration.(2)The seal of the Supreme Court of Samoa is not an official or public seal for the purposes of s 19(7)(b)(i), yet it is that seal which purports to authenticate the Bundle. Therefore, the documents in the Bundle have not been duly authenticated.(3)The description of the documents comprising the Bundle that is set out in the Certificate is insufficient because it does not specify the date of the documents and, in the case of the affidavit of the investigating officer does not list the documents that are annexures to the affidavit (and in the case of annexures that are themselves affidavits does not list the annexures to those annexed affidavits). Such descriptions are required in order for a document to be duly authenticated.(4)The description in the Certificate of annexures B, C, D and E did not identify them as copies. In order for a copy of a document to be duly authenticated it needed to be described as a copy.(5)There was no statement as to documents that were a copy that the copy was true and correct. In order for a copy of a document to be duly authenticated it needed to be certified as being a true and correct copy.(6)The Red Seal included the words of the motto for the State of Samoa beneath the escutcheon shape of the coat of arms. As those words had not been translated, there had been no authentication of the documents.(7)As Samoa had not relied expressly upon the Red Seal before the magistrate, Samoa could not now do so. For the following reasons, each of the above contentions should be rejected.Some general matters concerning due authentication by resort to s 19(7) It may be accepted that compliance with extradition laws is a matter of utmost seriousness. Such laws provide for circumstances in which a person may be deprived of their liberty at the instigation of the governmental authorities of another country. Therefore, it is reasonable to expect that there will be strict compliance with its requirements: Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 271 (Hill J) adapting what was said by Brennan J in R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 523.