Ratledge v Commissioner of Police for South Australia - [2004] SASC 368

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
RATLEDGE v COMMISSIONER OF POLICE FOR SOUTH AUSTRALIA
Judgment of The Honourable Justice White
19 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - ISSUE AND VALIDITY
EXTRADITION - SERVICE AND EXECUTION OF PROCESS ACT
Warrant issued in New South Wales Local Court, for arrest of applicant - Applicant arrested and brought before a Magistrate in South Australia - Magistrate ordered extradition of applicant to New South Wales - Discontinuity between particulars alleged on warrant and offence for which applicant was charged - Invalidity for purpose of s 83(1) of Service and Execution of Process Act 1992 (Cth) to be determined by reference to law of State in which warrant issued - Discussion of requirement of geographical nexus for offence against New South Wales law - Not possible to say that New South Wales Courts definitely lack jurisdiction to determine the charge - Warrant valid - Order of Magistrate confirmed.
Criminal Procedure Act 1986 (NSW) s 15, s 16, s 47, s 50, s 54, s 236, Part 4; Service and Execution of Process Act 1992 (Cth) s 82, s 83, s 86; Service and Execution of Process Act 1901 (Cth) s 18; Magistrates Court Act 1991 (SA) s 42; Drug Misuse and Trafficking Act 1985 (NSW) s 3, s 25, s 26; Judiciary Act 1901 (Cth) s 79; Crimes Act 1900 (NSW) Part 1A, referred to.
Loveridge v Commissioner of Police for South Australia (2004) 89 SASR 72; Ryder v Morley (1986) 12 FCR 438, considered.

RATLEDGE v COMMISSIONER OF POLICE FOR SOUTH AUSTRALIA
[2004] SASC 368
Introduction

WHITE J: On 20 May 2004 a Magistrate in the Local Court of New South Wales at Wellington issued, pursuant to the Criminal Procedure Act 1986 (NSW), a warrant for the arrest of the applicant.
The warrant was addressed to “All Police Constables in the State of New South Wales”. It commanded those police constables to apprehend the applicant whose address was shown on the warrant as 36 Kilmington Street, Davoren Park, South Australia 5113, and to bring him before a Local Court to answer the offence.
On 18 October 2004 the applicant was arrested in South Australia and brought before the Magistrates Court at Elizabeth. An arrest pursuant to a warrant issued in another State is authorised by ss 82(1) and 82(3)(a) of the Service and Execution of Process Act 1992 (Cth).
On 19 October 2004, a Magistrate made an order, pursuant to s 83 of the Service and Execution of Process Act, that the applicant be taken, in the custody of Detective Sparks of the New South Wales Police, to the Local Court at Sydney, New South Wales, so as to appear at 10.00 am on 20 October 2004.
This decision concerns an application for review of the Magistrate’s decision.
Section 86: Review of an Extradition Order
Section 86 of the Service and Execution of Process Act permits a person who has been apprehended pursuant to a warrant to which the Act applies to apply to the Supreme Court in the State in which the order was made for review of the order: s 86(1). The review is to be by way of rehearing: s 86(7). The Supreme Court may confirm, vary or revoke the Magistrate’s order: s 86(8). It was submitted, and I accept the submission for the purposes of determination of this application, that the grounds upon which the review proceeds in this Court are no more extensive than those which were available to the Magistrate.
The document instituting proceedings in this Court takes the form of a notice of appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), from a decision of a Magistrate, but both parties agreed that it should be treated by me as an application for review under s 86 of the Service and Execution of Process Act.
The Decision of the Magistrate
Section 83 of the Service and Execution of Process Act requires an apprehended person to be taken, as soon as practicable, before a Magistrate. If the warrant, or a copy of the warrant, is produced to the Magistrate, then, subject to some qualifications which are not presently material, the Magistrate must make an order (which for convenience I will call an “extradition order”) unless the Magistrate is satisfied that the warrant is invalid. If the Magistrate is satisfied that the warrant is invalid, the Magistrate must order that the person be released: s 83(10). The Magistrate before whom an apprehended person is taken therefore has a limited discretion. Where the warrant is produced to the Magistrate, it is only upon satisfaction of the invalidity of the warrant that the Magistrate is authorised (and required) to order the person’s release. Unless the Magistrate is satisfied as to the invalidity of the warrant, he or she must make an extradition order.
In this respect, the Service and Execution of Process Act 1992 is quite different from its predecessor, the Service and Execution of Process Act 1901, s 18. The grounds upon which a person could resist extradition under the Service and Execution of Process Act 1901 were much wider than those available under the 1992 Act. In particular, s 18(6) of the 1901 Act permitted a Magistrate to discharge an arrested person if he or she considered the charge to be of a trivial nature, or that there had been a want of good faith, or if for any reason it would be unjust or oppressive for the person to be returned to the State seeking his or her extradition.
In this case the Magistrate was satisfied that the warrant was valid.
In Loveridge v The Commissioner of Police for South Australia (2004) 89 SASR 72, I held that, in addition to the ground of invalidity of the warrant, a Magistrate could decline to make an extradition order if the application seeking that order could properly be regarded as an abuse of the process of the Magistrates Court. I considered that the circumstances in which such an application might be regarded as an abuse of the Magistrates Court would be rare and exceptional.
The Application for Review
It was not suggested that an abuse of the process of the Elizabeth Magistrates Court was involved in the application for the extradition of the applicant. It was, however, submitted that the warrant was invalid.
Two grounds of invalidity were argued. First, it was submitted that the charge filed in the New South Wales Local Court in respect of which the warrant was issued was bad for uncertainty, with a consequential invalidating effect for the warrant. Secondly, it was submitted that the New South Wales courts had no jurisdiction, in any event, to deal with the offence with which the applicant was charged, as it related to an alleged supply of methamphetamine in South Australia.
The Court was requested to hear the application for review at short notice. The document filed in the New South Wales court containing “the charge” was not put in evidence. I was invited to deal with the matter on the basis that the description of the offence in the warrant replicated the description of the offence in the court attendance notice, being the document by which the proceedings were commenced in New South Wales. I will do so, but express my misgivings at being asked to determine the validity of one document by reference to another, when that latter document has not been placed before the Court.
The Warrant
The offence to which the warrant is said to relate is described on the warrant as “Supply Prohibited Drug – Drug Misuse and Trafficking Act 1985, s 25(2)”. The warrant also contained something in the nature of particulars of that offence, namely “That Peter James Hamilton at Gilgandra in the State of New South Wales between 12.01 on 1/1/2003 and 1.00 pm on 19/5/2004 did conspire with David Michael Ratledge and others to supply a prohibited drug, to wit, Methamphetamine in the State of South Australia, being an amount which is greater than the commercial quantity applicable to that prohibited drug”. There is some discontinuity between those particulars and the offence which they purport to particularise.
On the basis upon which the matter was argued, I will assume that the court attendance notice specified the offence with which the applicant was charged as a supply of prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and went on to particularise the offence in the same way as quoted above.
The New South Wales Proceedings
The proceedings in the New South Wales Local Court were commenced by the issue and filing of a “court attendance notice” pursuant to s 47 of the Criminal Procedure Act 1986 (NSW). Section 47 provides:
“Commencement of committal proceedings by court attendance notice
(1)Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.
(2)A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.
(3)A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.
(4)Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.
(5)If an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act.”
The court attendance notice is issued in respect of an “offence”.
Section 50 specifies the requirements for a court attendance notice. It provides:
“(1)A court attendance notice must be in writing and be in the form prescribed by the rules.
(2)     The rules may prescribe one or more forms of court attendance notice.
(3)     A court attendance notice must do the following:
(a)     describe the offence,
(b)     briefly state the particulars of the alleged offence,
(c)     contain the name of the prosecutor,
(d)     require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,
(e)     state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.
(4)The rules may prescribe additional matters to be included in court attendance notices.
(5)A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.”
I note that, amongst other things, the court attendance notice must “describe the offence” and “briefly state the particulars of any alleged offence”.
The Issue of the Warrant
The warrant directed to the applicant was issued by an authorised officer pursuant to s 54 and Part 4 of the Criminal Procedure Act. Section 54(1), (2), and (3), which are presently relevant, provide:
“(1)A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend before a Magistrate for the hearing of committal proceedings, apply for a warrant to arrest the accused person.
(2)An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a Magistrate, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.
(3)If an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.”
The content of a warrant is governed by s 236 of the Criminal Procedure Act. It provides:
“(1)A warrant to arrest a person must be in the form prescribed by the rules.
(2)Without limiting subsection (1), the warrant must be directed to a person permitted by this Division to execute the warrant and must do the following things:
(a)name or describe the person to be arrested,
(b) briefly state the subject-matter of the court attendance notice or reason for the arrest,
(c) order that the person be arrested and brought before the Magistrate or authorised officer to be dealt with according to law or to give evidence or produce documents or things, as appropriate.
(3)A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the court to which the person issuing it is attached.
(4)However, an authorised officer may sign a warrant issued under this Act if a Magistrate has directed in writing that the warrant be issued.”
It will be noted that the warrant must “briefly state the subject of the court attendance notice or reason for the arrest”.
Defects in the Warrant
I was informed that there had been no prescription by rules made under the Criminal Procedure Act of a form of warrant. It was not suggested that the absence of prescription of a form of warrant by itself invalidated the warrant.
Central to the claim of invalidity was the fact that the particulars given related to a possible offence against s 26 of the Drug Misuse and Trafficking Act whereas the actual offence charged was an offence contrary to s 25 of that Act. The argument was put in various ways: that the description made the warrant uncertain or ambiguous; that it meant that the warrant did not comply with s 236(2)(b) of the Criminal Procedure Act, and that there had not been a sufficient statement of the offence and of the particulars of that offence as required by s 50 of the Criminal Procedure Act. Thus there had been, it was said, a statement of an offence with no particulars, or alternatively, a statement of particulars but no allegation of the offence to which those particulars related.
In my opinion, the discrepancy between the statement of the offence and the statement of particulars should not be held to invalidate either the court attendance notice or the warrant. That conclusion gives effect to s 16(2) of the Criminal Procedure Act. That sub-section provides:
“No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or
(b)any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.”
The word “indictment” is defined in s 15(2) of the Criminal Procedure Act to include a court attendance notice.
In my opinion, the discrepancy between the statement of the charge and the statement of particulars is a defect in the substance of the court attendance notice and in the warrant. The defect is that the offence alleged against s 25(2) has not been properly particularised as required by s 50(3) of the Criminal Procedure Act. However, s 16(2) prevents objections being taken to either the court attendance notice or the warrant on that account.
In my opinion, the discrepancy is not such as to make the warrant so ambiguous that it is not possible to know what offence is alleged.[1] It is plain enough that an offence against s 25(2) is alleged.
[1] cf Ryder v Morley (1986) 12 FCR 438 at 442.
I add that I accept that the invalidity to which s 83(10) of the Service and Execution of Process Act refers is to be determined by reference to the law of the State in which the warrant was issued, including by reference to laws of that State which preclude identified defects in the warrant having an invalidating effect. See also s 79 of the Judiciary Act 1903.
According, this ground of attack on the warrant is not made out.
Jurisdiction
Next, it was submitted that the particulars stated in the warrant are relevant in another way. They indicated, so it was submitted, that the “supply” to which the offence against s 25(2), with which the applicant was charged referred was a supply in the State of South Australia. That being so, it was submitted that there could not be an offence contrary to s 25(2) as it should be construed as relating to the supply of illicit drugs in New South Wales only, and the New South Wales courts lack jurisdiction to hear and determine charges in respect of supplies of illicit drugs in South Australia.
I reject this submission. The offence which is alleged is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act. That provides that “a person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.”
The word “supplies” is given an extended meaning by the definition in s 3 of the Drug Misuse and Trafficking Act as follows:
“Supply” includes sell and distribute, and also includes agreeing to supply or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”
The concept of supply for the purposes of the Drug Misuse and Trafficking Act includes not only the actions of selling or distributing, but conduct which is ancillary to, or anticipatory of, such actions. Thus, in this case, even though the ultimate supply, as in the actual sale or distribution of the prohibited drug may occur in South Australia, actions ancillary to, or anticipatory of, that conduct may occur in New South Wales. Those actions are capable of constituting a supply for the purposes of s 25(2). That would provide a sufficient nexus with the State of New South Wales so as to bring the conduct within s 25(2) and to enliven the jurisdiction of the New South Wales Courts: see the geographical nexus provisions contained in Part 1A of the Crimes Act 1900 (NSW). It is not possible on the materials presently available to know what precise conduct is alleged to constitute the relevant act of supply in New South Wales but it cannot be concluded that on any view the New South Wales courts will lack jurisdiction to hear the charge.
Foreshadowed Amendment
I was informed at the hearing that the New South Wales authorities may wish to amend the court attendance notice so as to allege that the applicant had participated in a conspiracy to supply the prohibited drug, contrary to s 26 of the Drug Misuse and Trafficking Act, supported by the particulars which appear presently in the warrant, in place of the offence against s 25(2) which is presently alleged. It was not argued that the execution of a warrant alleging an offence in circumstances where it is intended to allege another offence in lieu thereof once the person has been extradited is invalid. A review under s 86 of the Service and Execution of Process Act is not the appropriate means of challenge to the execution of a warrant. Nor was it submitted that the application for an extradition order in such circumstances was an abuse of the process of the Magistrates Court. These are matters which I have not been asked to consider.
Conclusion

For the reasons given, I confirm the order made by the Magistrate. Pursuant to s 86(12) of the Service and Execution of Process Act, I order that the applicant be taken in the custody of Detective Michael James Sparks of the New South Wales Police to appear in the Local Court at Sydney, New South Wales.