PETER ROBERT SAMSON No. SCGRG-98-886, SCGRG-98-912 Judgment No. S6829

[1998] SASC 6829

FRIDAY, 28 AUGUST 1998

PETER ROBERT SAMSON
[1998] SASC 6829
PRIOR J
1 On 17 June 1998 a magistrate ordered that the applicant be surrendered to New Zealand.  He has applied to this Court for a review of that order.  The review in this Court is by way of rehearing.  The court is empowered to have regard to evidence in addition to or in substitution for the evidence that was before the magistrate .
2 In making the order the magistrate declined to hear a challenge to the prosecution case, saying that she was satisfied that the matters the defendant raised were matters she was prohibited from pursuing by s34(4) of the Extradition Act 1988. Subs(4) provides that a person is not entitled to adduce and the magistrate is not entitled to receive evidence to contradict an allegation that the person then before the court has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued.
3 The second matter dealt with by the magistrate related to an allegation that there were difficulties in locating witnesses.  The magistrate heard evidence from a New Zealand detective.  She accepted his evidence and found that all prosecution witnesses had been located.
4 If sufficiency of evidence is a matter for the magistrate, in my view the material did not establish a proper basis for refusing the order sought .  I refer in particular to the affidavit of Detective Nicholls and the evidence he gave before the magistrate.  I also refer to the material before the magistrate under the name of Detective Sergeant Raffan.
5 The magistrate had power to order that the applicant be released if satisfied that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.  Within s34(2) it is specifically provided that such an order is appropriate if a magistrate finds the offence in relation to which any indorsed New Zealand warrant was issued is of a trivial nature, if accusations of the offence identified in the warrant was not made in good faith or in the interest of justice, or if a lengthy period had elapsed since the offence was committed or allegedly committed .
6 In this review the applicant relies upon the totality of circumstances associated with his arrest and appearance before the magistrate. It is said that this Court should find on the material now before it that it would be unjust, oppressive or too severe a punishment to surrender the applicant to New Zealand. The matters pursued here were the question of whether any warrant was duly indorsed in the manner required by s28, and the bona fides of those involved in the apprehension and detention of the applicant.
7 A South Australian Police Officer, Detective Senior Constable Kahl, says that on 25 March 1998, he received information about an illegal immigrant wanted in New Zealand for armed robbery.  The information was that that person lived at an address in Angaston where he was being supplied with cannabis.  It was also alleged that that person had recently been charged in New South Wales for drug trafficking. 
8 Detective Kahl pursued enquiries of police in New South Wales and New Zealand and at the Department of Immigration.  He went to the Angaston address given him by his informant on 17 April 1998.  A small amount of cannabis was found there then.  The applicant was asked his name.  He gave the name Steven John Roberts.  Later that day the officer said he received further information that a person by the name of Steven Brooks of the same address at Angaston had been arrested at Yass in New South Wales and released on bail in the Goulburn court but two days before, to reappear there on 27 May 1998. 
9 Further information being given, Detective Senior Constable Kahl made further contact with New Zealand police and asked for a comparison of fingerprints obtained from the applicant at Angaston, with those of the person charged in New South Wales.  The officer received information back to confirm that the applicant was known in New Zealand as Peter Robert Samson and that he was wanted in relation to an aggravated robbery charge.  The officer was also informed that Samson was not recorded in New Zealand as having a current New Zealand passport.  The Department of Immigration confirmed that the applicant was not recorded as being within this country, and that he was not an Australian citizen, nor had ever applied to become one. 
10 On 10 June, a warrant to arrest was received by the South Australian police.  That warrant was issued by a New Zealand District Court judge.  The applicant was arrested on that warrant that day.  At that time Detective Kahl said that he told the applicant that he was an illegal immigrant.  In a conversation that evening, the applicant acknowledge that he was an illegal immigrant. 
11 The applicant appeared in the District Court the following morning.  The arresting officer says that someone from the Office of the State Director of Public Prosecutions said that that was the appropriate court for the applicant's appearance.  A District Court judge ruled that he had no jurisdiction in the matter.  That was plainly correct.  The applicant was remanded to the Adelaide Magistrates Court. 
12 On the afternoon of 11 June, a magistrate remanded the applicant in custody until the following day. When the documentation was considered overnight by Mr Klotz, an officer from the office of the Commonwealth Director of Public Prosecutions, it was noted that the New Zealand warrant which had been used to arrest the applicant was not an indorsed warrant, as s28 required.
13 I accept the evidence of both Kahl and Klotz as to how that situation developed.  I reject any suggestion of impropriety or bad faith in either of them, or at any relevant time.  I accept that before Kahl took any steps on the warrant, he made inquiries as to its validity and the appropriate procedures.  Plainly the advice first given to Kahl was incorrect.  I reject the suggestions put with respect to documentation prepared on 11 June, and accept Mr Kahl's explanation as to how and why he had prepared them. 
14 I have been greatly assisted in this matter by clear outlines and forceful submissions from counsel.  It should be plain already that I reject entirely the submission put on behalf of the applicant, that the officers involved in this matter treated him with reckless indifference. 
15 Klotz and Kahl spoke about appropriate procedures by telephone on the morning of 12 June. Arrangements were made to have the warrant indorsed by a magistrate. This occurred in the Adelaide Magistrates Court before noon on Friday, 12 June. Mr Swain SM was given an affidavit, the warrant and a document in the form prescribed by the Extradition Regulations. The form was a printed form, identified within the Regulations as Form 17. It bore reference to s28 of the Act and reg3 of the Regulations. It was headed as the form prescribed is headed: "Indorsement Of New Zealand Warrant Under s28, Authorising Execution Of Warrant In Australia".
16 The warrant and Form 17 were returned to Mr Klotz and Detective Kahl.  The Form 17 was then signed apparently by Mr Swain.  Klotz noticed that there was no indorsement on the warrant itself.  He therefore made a request of the court staff to invite Mr Swain to indorse or sign the warrant itself, "to indicate that he had seen that specific document".
17 Mr Swain came down to the office.  He then signed the warrant as requested and dated it as the Form 17 had been dated.  It seems he also added the word "Indorsed" above his signature and had the court seal placed over both the word "Indorsed" and his signature.  The documents were then returned to Klotz and Kahl. 
18 The applicant appeared before another magistrate that afternoon.  That magistrate was informed of the defects associated with the applicant's arrest on 10 June.  The applicant was released.  He was served with the warrant as signed by Mr Swain in an interview room at the Magistrates Court, in the presence of his then solicitor. 
19 I accept Kahl's evidence about delivering a copy of the warrant as signed by the magistrate, together with a signed Form 17 before the magistrate ordered his release on the warrant that had not been signed or indorsed by any magistrate.  Kahl's evidence was that this occurred at the remand centre at about 1.37 pm.  It should now be obvious, but I indicate again, that I reject entirely all the criticisms levelled at Detective Kahl by the applicant's counsel in the course of cross-examination and submissions. 
20 The applicant appeared before the magistrate on the warrant signed by Mr Swain that afternoon.  He was remanded in custody to reappear on 17 June.  On that day the magistrate heard evidence and made the order sought to be reviewed. 
21 The applicant's submission is that this Court should quash the order of the magistrate and order the applicant's release.  Whilst the warrant was indorsed on 12 June, it is said that that indorsement is tainted by illegality so that it is either unjust, oppressive or unfair, or an abuse of the process of the court to have the applicant surrendered to New Zealand. 
22 It was argued that the warrant was not indorsed as s28 of the Extradition Act requires. It is said that Mr Swain did not "make an indorsement on the warrant in the statutory form, authorising the execution of the warrant in Australia by any police officer". The separate document being the Form 17 as prescribed by the Extradition Regulations, was not indorsed on the warrant. The literary truth of that proposition cannot be disputed.
23 I reject the argument that the regulations are beyond power because of the failure to prescribe a form of indorsement on the warrant, as opposed to a form relating to the warrant. In my view, the final process concluded by Mr Swain, did satisfy the demands of s28. An indorsement was on the warrant in the statutory form, given the linking of the Form 17 to the warrant itself, by Mr Swain's signature on both and the asserted fact of indorsement by the use of that word in his handwriting, above his signature.
24 The material before this Court discloses that the applicant left New Zealand under a false identity soon after the date of the alleged robbery.  Since that time, he has maintained a variety of identities and involved himself in activities attracting the attention of police and a charge. 
25 Detective Kahl sought clarification of information and confirmation of the propriety of his actions, before pursuing an arrest.  Plainly he believed that the warrant he had was sufficient authority on its own to detain the applicant.  There has not been the slightest credible hint of impropriety against the arresting officer.  The procedural defect, once discovered, was properly corrected without apparent objection from the applicant or his then legal adviser. 
26 That apart, the material discloses that when the applicant was detained, his detention was lawful, given the terms of s189(1) of the Migration Act 1958. The South Australian police officer was an officer who knew, or reasonably suspected, that the applicant was not lawfully within Australia. By that provision, the officer was obliged to detain the applicant. Detention was a duty, not dependent upon communication of the discharge of that duty, nor the less valid for the officer's understandable intent to detain the applicant with respect to a warrant he believed to be lawful in every respect. Likewise, Detective Kahl's erroneous belief that he had a mere right to detain, as opposed to an obligation to detain, imposed by the demanding language of s189(1).
27 I reject the submission put that there was, at any time, a failure to process the applicant as soon as was reasonably practical in any of the circumstances as disclosed. Likewise, with respect to the continuing detention of the applicant because of the Migration Act proceedings, I reject the submission put on behalf of the applicant that the Migration Act procedures have not been complied with. A realistic identification of the situation is that the law does not require the procedural demands of the Migration Act to be carried into effect whilst the extradition process itself is so plainly being pursued, and known to be being pursued by both parties, as a primary process. It follows from what I have said, that I do not accept that the processes constituted a failure to have the applicant dealt with according to law, as soon as was reasonably practical.
28 Against this background and the findings made, there is no proper basis on which I could be satisfied that it would be unjust, oppressive, or too severe a punishment, to surrender the applicant to New Zealand. 
29 It should be noted that the applicant refrained from having this Court consider even his affidavit, let alone that he chose to give oral evidence in the review.  This is not a case of prejudice from delay at the suit of a prosecuting authority.  Also, one may say there is no hint of reformation, or an exemplary life over a period of time, nor proven hardship resulting from changes in personal circumstances.  Cases where a review has been successful for such reasons, are very different from this .  I therefore confirm the magistrate's order. 
30 Given the arguments advanced in this review, I add some further observations with respect to the argument that the regulations are not a valid exercise of the regulation making power. I reject the proposition that the Form 17 is not authorised by the Act because it does not prescribe something indorsed on the warrant. Indorsement can occur by relating the indorsement to the warrant. However, if the form be beyond power, s28 would operate by its own terms to have the magistrate's indorsement on the warrant itself a valid indorsement for the purpose of s28, and the subsequent provisions within Part III of the Extradition Act. S28 is not rendered impotent, absent a valid statutory form if a magistrate has made an indorsement on the warrant. Mr Swain ultimately did do that.
31 In my view the statutory form is valid by the linking of the form to the warrant by reference and the circumstances proved before me.  However, if that view be wrong, the literal demands of the applicant's argument would be met by joining the Form 17 to the warrant.  The magistrate's order could be confirmed upon that ground if the documents were so joined.  Out of an abundance of caution, I direct the joinder.  The joinder occurring to the extent that it might be necessary, the magistrate's order would, likewise, have to be confirmed.  I take the documents referred to from the file and direct the joinder.  

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDMENT

1. Extradition Act 1988, s35, especially (6)(d)

1. Narain v Director of Public Prosecutions (1987) 70 ALR 697, particularly at 705 and 706.

1. see s32 par(a), par(b) and par(c)

2. I refer to Perry v Lean (1985) 39 SASR 515 at 530; Lavelle (1994) 72 A Crim R 402; Ventakava (1995) 80 ACR 574.