R v Dutton - [2001] NSWSC 135

CITATION: R v Dutton [2001] NSWSC 135

FILE NUMBER(S): SC 071106/01

HEARING DATE(S): 12 February 2001, 21 February 2001

JUDGMENT DATE:
21 February 2001

PARTIES :

R v Edward Isaac Dutton

JUDGMENT OF: Howie J at 1

COUNSEL : P. Neil SC (Respondent)
Applicant in person

SOLICITORS: Commonwealth Director of Public Prosecutions

LEGISLATION CITED: Extradition Act 1988 - ss 15, 16, 19, 21, 22
Extradition (Republic of South Africa) Regulations

CASES CITED: Cabal v United Mexican States [2000] FCA 7; [2000] FCA 1892
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70
Von Arnim v Federal Republic of Germany [1999] FCA 1747
Wu v Attorney General of the Commonwealth & Ors (1997) 79 FCR 303
Bertran v Vanstone & Ors (1999) 94 FCR 404
Holt v Hogan (No. 1) (1993) 44 FCR 572

DECISION: Bail is refused.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

WEDNESDAY 21 FEBRUARY 2001

071106/01 - BAIL APPLICATION OF EDWARD ISAAC DUTTON

JUDGMENT

1 HIS HONOUR: On 18 December 2000 a magistrate, Ms O'Shane, determined under s 19 of the Extradition Act 1988 that Edward Dutton ("the applicant") was eligible for surrender to the Republic of South Africa ("the respondent") in respect of a number of fraud offences with which the applicant had been charged in that country. As a consequence of the making of that determination, the magistrate issued a warrant committing the applicant to prison, as she was required to do by s 19(9)(a).

2 The applicant has sought a review of that determination in this court under s 21(1) of the Act and has made an application for bail. Where an application for review of such an order has been lodged, this Court has power to grant bail to the applicant under s 21(6). Section 21(6)(f) relevantly provides:

"the court to which the applicant or appeal is made may:

(iii) order that the person be kept in such custody as the Court directs; or

(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the Court thinks fit;

until the review has been conducted or the appeal has been heard."

3 The applicant was arrested on 17 January 1990 for offences of fraud allegedly committed by him in South Africa in the period 1986 to 1989. He was released to bail on those offences on 2 February 1990.

4 On 27 January 1992 the trial of the applicant on those charges commenced in the Supreme Court of South Africa. On 7 February 1994, while the trial was still proceeding, the applicant failed to appear at court to answer his bail. On 3 July 1994 the applicant entered Australia using a passport issued to a person named Addison. He departed Australia on 30 September but re-entered this country on 18 October 1994. The applicant used the name of Addison to purchase property and for the purpose of registering a business…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dutton

Details

AGLC: R v Dutton [2001] NSWSC 135
Case: [2001] NSWSC 135
Decision Date: 21 February 2001

CaseChat Overview and Summary

The case of R v Dutton involves the applicant, Edward Isaac Dutton, who sought a review of a magistrate's determination that he was eligible for surrender to the Republic of South Africa for alleged fraud offences. The applicant has been in custody since the magistrate's decision on 18 December 2000. The legal issues before the court were whether "special circumstances" existed to justify granting the applicant bail under the Extradition Act 1988 and whether those special circumstances warranted the exercise of the court's discretion to grant bail.

The court examined the principles established by the Federal Court on the interpretation of "special circumstances" as requiring a presumption against bail, and the necessity to balance the interests of the applicant against the community's perception of the risk of flight. The court noted the applicant's personal circumstances, including his family ties in Australia and health issues, but also considered the seriousness of the charges against him and his history of evading justice. The court held that the applicant's belief that his life would be in jeopardy if returned to South Africa did not engender confidence that he would not abscond. Given the significant step of the magistrate's determination, the court found that the applicant's eligibility for surrender significantly increased the risk of flight.

The court concluded that there were no exceptional circumstances at the time of the hearing justifying the grant of bail. However, the court acknowledged that the length of time the applicant might need to remain in custody pending the review could be a changed circumstance warranting reconsideration of the bail application. The court refused bail but indicated that the matter could be granted expedition.

No final orders were made in this judgment as the matter was to be reviewed by the Supreme Court.

Orders