Ronald Warren Woss v Johannes Jacobsen

[1984] FCA 343

Re: RONALD WARREN WOSS
And: JOHANNES JACOBSEN & ANOR.
No. WAG 72 of 1984
Judicial Review - Service and Execution of Process - Courts and Judges -
Administrative Law
56 ALR 254 / 4 FCR 356

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Judicial review - applicant charged with conspiracy to defraud Commonwealth - warrant for apprehension of applicant issued in Queensland - applicant resident in Western Australia - warrant endorsed by Western Australian Magistrate for execution in Western Australia - applicant apprehended in that State - jurisdiction of Western Australian Magistrate to endorse warrant - whether execution of warrant in Western Australia unjust or oppressive - jurisdiction of Supreme Court of Western Australia to determine questions of jurisdiction and unfairness and oppression - exercise of this Court's discretion.

Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5, 9, 10 and 16

Service and Execution of Process Act 1901, ss. 18 and 19

Service and Execution of Process - Whether law of a State - Service and Execution of Process Act 1901 (Cth), s 18.

Courts and Judges - Jurisdiction - Deprivation of jurisdiction of State courts to "review" decisions - Does not extend to review by way of rehearing - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9.

Administrative Law - Judicial Review - Deprivation of jurisdiction of State courts to "review" decisions - Does not extend to review by way of rehearing - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9.

HEADNOTE

Held: (1) The deprivation of jurisdiction of a court of a State to review a decision to which s 9 of the Administrative Decisions (Judicial Review) Act 1977 applies effected by s 9(1) and (2) does not deprive a State court of jurisdiction to conduct a review by way of rehearing.

(2) The Justices Act 1886 (Qld) is a "law of a State" within the meaning of that expression in the Service and Execution of Process Act 1901 (Cth), s 18(1), notwithstanding that it had effect by reason of the Judiciary Act 1903 (Cth), s 68. Observations concerning the meaning of "return" in the Service and Execution of Process Act 1901, ss 18, 19.

HEARING

1984, September 28; October 30. #DATE 30:10:1984

APPLICATION

Application for orders of review of a decision of a magistrate to order the return of the applicant to Queensland pursuant to the Service and Execution of Process Act 1901.

T E F Hughes QC and H McLernon, for the applicant.

A C Chernov QC and R Macnay, for the first respondent.

C L Langrulan, for the second respondent.

Cur adv vult

Solicitors for the applicant: Blakeston & Co.

Solicitors for the first respondent: Australian Government Solicitor.

Solicitors for the second respondent: Crown Solicitor (WA).

GFV

ORDER

The application be dismissed.

The applicant pay the respondents' costs of the application.

Application dismissed with costs

JUDGE1

This is an application to review the decision of the second respondent, who is a magistrate in Western Australia, made on 27 July 1984 whereby he ordered the return of the applicant to the State of Queensland by 26 October 1984 pursuant to the provisions of the Service and Execution of Process Act 1901 (hereinafter called "the Act"). The provisions of the Administrative Decisions (Judicial Review) Act 1977 relied upon are those to be found in paras. (c) and (e) of sub-sec. 5(1) of that Act. The first of these grounds is that the person who purported to make the decision, that is the Magistrate, did not have jurisdiction to make it. The second is that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Para. (e) of sub-sec. 5(1) needs ot be read in the light of the provisions of sub-sec. (5). I shall come to that matter in due course.

The applicant was charged with seven counts of conspiring to defraud the Commonwealth contrary to para. 86(1) (e) of the Crimes Act 1914. Each of the charges involved there being charged, along with the applicant, a number of persons alleged to be co-conspirators. The applicant lives in the State of Western Australia. Many of those alleged to be co-conspirators live in other States of Australia.

Warrants for the apprehension of the applicant on these charges were issued at Brisbane in the State of Queensland pursuant to the provisions of s. 57 of the Justices Act 1886 - 1979 (Queensland). That section provides that when complaint is made before a justice that a person is suspected of having committed an indictable offence within the limits of the jurisdiction of the justice or that a person charged with having committed any such offence elsewhere in Queensland is suspected of being within such limits, the justice may issue his warrant to apprehend such person and to cause him to be brought before justices to answer the complaint and to be further dealt with according to law. The section also provides for the issue of warrants for the apprehension of persons charged with having committed indictable offences on the high seas or in harbours and other places in which the "Admiralty of England" have or claim to have jurisdiction or on land outside the State of Queensland of which offence cognizance may be taken by the courts of the State.

The applicant was not in the State of Queensland when the warrants were issued. As I have said he resides in Western Australia. For that reason the warrants were sent to Perth to be executed there pursuant to the provisions of the Act. To this end each was endorsed with an endorsement which was in the following terms:-

"SERVICE AND EXECUTION OF PROCESS ACT, 1901 INDORSEMENT ON WARRANT

State of Western Australia )

< ) Perth

To Wit )

Whereas proof upon oath has this day been made before me that the name of Clive EVANS S.M. subscribed to the within warrant is in the handwriting of the within-mentioned Clive EVANS S.M. Justice of the Peace of the State of Queensland, I herby authorise Johannes JACOBSEN who brings me this warrant, and all other persons to whom this warrant was originally directed or by whom it may be lawfully executed, and also all constables and other peace officers of the State of Western Australia, to execute this warrant within the State of Western Australia, and to bring the said Ronald Warren WOSS, if apprehended within the State of Western Australia, before me or before some Justice of the Peace of the State of Western Australia to be dealt with according to law."

The endorsement was dated 1 March 1984.

Each of the warrants was served upon the applicant on 1 March 1984 and he was in consequence, arrested. The matter was mentioned in the Court of Petty Sessions in Perth on a number of occasions. On 27 July 1984, after a hearing which took place on 20 and 23 July 1984, the second respondent gave his decision on an application by the applicant to be discharged. The application was made pursuant to sub-sec. 18(6) of the Act. The second respondent discharged the applicant in respect of five of the warrants, but in relation to the other two he admitted him to bail in the sum of $10,000 to appear at the Brisbane Magistrate's Court on 26 October 1984 to answer the charges. It was a condition of bail that he surrender his passport to the Australian Federal Police. Leave was given to apply to the Court to have it returned.

The original application for an order of review was filed on 22 August 1984. Since I reserved my decision on 28 September last, I have been informed by the applicant's solicitor that the date, 26 October 1984, has been, by consent, extended to a later date.

Sub-secs. 18(1) and (2) of the Act are as follows:-

"18.(1) Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section 16 or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act authorizing its execution in that other State or part of the Commonwealth.

(2) A warrant so endorsed is sufficient authority to the person bringing the warrant, to all constables and persons to whom the warrant is directed and to all constables and peace officers in that other State or part of the Commonwealth to execute the warrant in that other State or part of the Commonwealth, to apprehend the person against whom the warrant was issued and to bring that person before a Police, Stipendiary or Special Magistrate or a Justice of the Peace who has power to issue warrants for the apprehension of persons under the law of that State or part of the Commonwealth."

Section 16 referred to in sub-sec. (1) is not of relevance.

Sub-sec. 18(3) empowers the magistrate or justice of the peace before whom the person is brought, by warrant under his hand, to order the person to be returned to the State or part of the Commonwealth in which the original warrant was issued and, for that purpose, to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed, or admit the person to bail on such recognizances as he thinks fit on condition that the person appears at such time and at such place in the State or part of the Commonwealth in which the original warrant was issued as is specified.

Sub-sec. 18(6) is as follows:-

"(6) If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that -

(a) the charge is of a trivial nature;

(b) the application for the return of the person has not been made in good faith in the interests of justice; or

(c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period.

the Magistrate or Justice of the Peace may -

(d) order the discharge of the person;

(e) order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or

(f) make such other order as he thinks just."

Sub-secs. 19(1),(2) and (3) of the Act are as follows:-

"19. (1) Where -

(a) a person apprehended is dissatisfied with an order made under sub-section (3) or (6) of the last preceding section; or

(b) a Magistrate or Justice of the Peace has made, under sub-section (3) or (6) of the last preceding section, an order for the discharge of an apprehended person, or an order for the return or admittance to bail of such a person under the terms of which the person is not, or may not be, required to return or be returned within three months after the date of the order to the State or part of the Commonwealth in which the original warrant was issued.

the apprehended person or the person bringing the warrant, as the case requires, may apply to a Judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order.

(2) A Judge to whom an application is made for the review of an order may-

(a) order the release on bail of the apprehended person on such terms and conditions as the Judge thinks fit; or

(b) direct that the apprehended person be kept in such custody as the Judge directs in the State or part of the Commonwealth in which the person is apprehended until the order has been reviewed.

(3) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review."

By sub-sec. 19(5), upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead. By sub-sec. 19(6) the order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the magistrate or justice of the peace.

The ground of the applicant's application made pursuant to sub-sec. 18(6) of the Act was that it would be unjust or oppressive to return the applicant to the State of Queensland. As earlier mentioned, this application succeeded in respect of five of the warrants but not in respect of the remaining two. There is some uncertainty as to whether it was also submitted on behalf of the applicant that the Magistrate had no jurisdiction to order the return of the applicant to Queensland. But nothing turns on that matter. There was not ultimately any objection by counsel for the first respondent to that matter being relied upon.

The first respondent has made application to the Supreme Court of Western Australia pursuant to s. 19 of the Act for a review of the decision of the Magistrate not to order the return of the applicant in respect of five of the charges. That application is pending in the Supreme Court.

There can be no question as to the jurisdiction of the Magistrate in Queensland to issue the warrants. Sub-sec. 68(1) of the Judiciary Act 1903 and s. 57 of the Justices Act (Q.) authorised this course. Sub-section 68(1) is as follows:-

"68. (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for-

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom (that is, the persons who are charged) jurisdiction is conferred on the several courts of that State or Territory by this section."

The provisions of sub-sec. 68(2) of the Judiciary Act were the subject of consideration in Lamb v. Moss (1983) 49 A.L.R. 533; see pp. 559 - 564. No different considerations apply in the present case notwithstanding that the sub-sec. involved here is sub-sec. 68(1) and not sub-sec. 68(2). No argument as to this Court's jurisdiction to entertain this application for review was put.

In the background of this case should be kept in mind s. 80 of the Constitution which is as follows:-

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

With s. 80 should be read ss. 70 and 70A of the Judiciary Act which are as follows:-

"70. When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein.

70A. The trial on indictment of an offence against a law of the Commonwealth not committed within any State and not being an offence to which section 70 applies may be held in any State or Territory."

It is to be observed that neither s. 80 of the Constitution nor ss. 70 or 70A of the Judiciary Act have direct relevance to this matter because they relate to the trial of offences and not to the arrest of offenders or their committal for trial.

As earlier mentioned, two submissions were relied upon by counsel for the applicant. The first was that there was no jurisdiction in the Western Australian Magistrate to act pursuant to s. 18 of the Act. The second was that he had improperly exercised the power conferred upon him by that section. The essence of the second submission was that it was wholly unreasonable for him to have decided to order the return of the applicant to Queensland. For this purpose counsel relied on para. 5(1)(e) of the Judicial Review Act and para. 5(2)(g) which makes it an improper exercise of a power if the exercise of the power is so unreasonable that no reasonable person could have so exercised the power. In order to support the submission counsel engaged in a review of the evidence which was before the Magistrate and which was considered by him in relation to the application made to him pursuant to sub-sec. 18(6) of the Act.

Counsel for the first respondent denied the proposition that there was no jurisdiction and further said that there was no basis for saying that the Magistrate's exercise of the power was so unreasonable that no reasonable person could have exercised it. Additionally, he relied upon the provisions of s. 10 of the Judicial Review Act which provides in sub-para. (2)(b)(ii) as follows:-

"10. (2) Notwithstanding sub-section (1)-

. . . . . . . . . . . . . . . . . . . . . < . . . .

(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason-

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure."

Counsel for the first respondent relied upon this provision not only in relation to the second matter relied upon by counsel for the applicant, but also in relation to the first matter. In other words he contended that the appropriate Court to determine whether there was jurisdiction, and if so whether the exercise by the Magistrate of that jurisdiction ought to be reviewed, was the Supreme Court of Western Australia. But he did not deny this Court's jurisdiction to review the decision. His submission was that in the exercise of the Court's discretion, both under s. 10 and under s. 16 of the Judicial Review Act, it ought to refuse to entertain the application.

This submission raised for consideration the terms of ss. 9 and 10 of the Judicial Review Act. It was common ground that the Magistrate's decision was a decision of an administrative character made under an enactment and thus a decision to which both ss. 5 and 9 of the Judicial Review Act applied; see the definitions of "decision to which this Act applies" in sub-sec. 3(1) and "decision to which this section applies" in sub-sec. 9(2). Para. 9(1)(a) of the Judicial Review Act is as follows:-

"9. (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review-

(a) a decision to which this section applies that is made after the commencement of this Act;

. . . . . . . . . . . . . . . . . . . .< . . . .

Sub-sec. 9(2) defines the word "review" for the purposes of the section. It means review by way of:-

"(a) the grant of an injunction;

(b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c) the making of a declaratory order."

For the purposes of s. 10 the word "review" is defined differently. Sub-sec. 10(3) is as follows:-

"(3) In this section, "review" includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."

The definition is an inclusive one unlike the definition of the word in sub-sec. 9(2) which is exhaustive.

The courts of a State are not deprived of jurisdiction by the operation of s. 9 unless the review which they would otherwise have been empowered to undertake is a review of the kind defined in sub-sec. 9(2). It seems to me that sub-sec. 9(2) was intended to encompass, by and large, the review which this Court is empowered to undertake under ss. 5, 6 and 7 of the Judicial Review Act. So much appears in my opinion, from a consideration of s. 16 which specifies the relief this Court may give. Its language is not the same as that used in the definition of "review" in s. 9, but essentially the same things are involved.

In the present case the review which the Supreme Court would be empowered to undertake under s. 19 of the Act is, by sub-sec. (3), a review by way of rehearing, with power to take evidence in addition to, or in substitution for, the evidence given on the making of the order. This is not a review of the restricted kind contemplated by s.9 but a review of the more comprehensive kind contemplated by sub-sec. 10(3). If it were not for the indication of legislative intention given by the words of that sub-section, the matter may not have been so clear. But having regard to those words, I am satisfied that the Supreme Court's jurisdiction under s. 19 is not affected by any operation which should be accorded s. 9 of the Judicial Review Act.

It follows that both the Supreme Court of Western Australia and this Court have jurisdiction to undertake the review of the decision which is impugned. The Supreme Court's powers of review are more extensive than those of this Court because they include power to review on the merits.

The first submission relied upon by counsel for the applicant goes to the jurisdiction of the Magistrate to deal with the applicant at all. No question concerning the merits of the applicant's case that he should not be returned to Queensland arises. In practical terms the power of this Court to undertake review of the decision on this ground is no less extensive than than of the Supreme Court. The applicant has brought the application and wishes it determined in this Court. The matter has been the subject of a full argument by senior counsel on behalf of both parties. In all those circumstances I think that I should, in the exercise of the discretion which I have, deal with the question of jurisdiction.

The submission of counsel for the applicant is simple. The short point which it raises for consideration is whether the Justices Act (Q.) pursuant to which the warrants were issued is "the law of a State" for the purposes of s.18 of the Act. Certainly, it is an Act of the Queensland Parliament and thus, prima facie, the law of a State. But, in the submission of counsel, it is not the law of a State in the present case because it is applied to the circumstances of the case by reason of the operation of sub-sec. 68(1) of the Judiciary Act. In his submission, by reason of the operation of sub-sec. 68(1), the Queensland Act became, in the circumstances of this case, a law of the Commonwealth and not a law of the State. In support of his submission, counsel referred to the judgment of Mason J. in The Queen v. Loewenthal; Ex p. Blacklock (1974) 131 CLR 338. That was a case which concerned the application of the Commonwealth Places (Application of Laws) Act 1970 which had been introduced to meet difficulties arising by reason of the decisions of the High Court in Worthing v. Rowell & Muston Pty Limited (1970) 123 C.L.R. 89 and Reg. v. Phillips (1970) 125 C.L.R. 93. The question was whether s. 469 of the Criminal Code (Q.) upon which the indictment in the case was based was inconsistent with s. 29 of the Crimes Act 1914.

The passage upon which counsel relied was a sentence concerned with the way in which the Commonwealth Places Act operated on State law. Mason J. said (p.346), "If, as we are informed, the offence was committed in a Commonwealth place, s. 4(1) (of the Commonwealth Places Act) would operate to pick up the provisions of s. 469 (of the Queensland Criminal Code) and give them an application as Commonwealth law in that place, subject to the operation of s. 4(2)(a)." Similarly, counsel here seeks to say that the State law referred to in s.18 of the Act, that is, the Queensland Justices Act, has been picked up by the operation of sub-sec. 68(1) of the Judiciary Act and has an application as Commonwealth law in the State of Queensland.

Counsel also relied upon what had been said by Murphy J. in The Queen v. Carngham (1978) 140 C.L.R. 487 at pp. 497-498 and upon the judgment of this Court in Lamb v. Moss (supra.) at pp. 559-564. In particular, reference was made to what was said after the Court referred to the decision of the High Court in John Robertson and Co. Limited v. Ferguson Transformers Pty Limited (1973) 129 C.L.R. 65. The Court said, (p. 561), "In this respect, s. 79 (of the Judiciary Act) is little different in effect from s. 68(2) (of the same Act). The State law is given effect in the exercise of federal jurisdiction not of its own force as a State law but by the force of the Judiciary Act as a federal law." It was that view, of course, which led the Court in Lamb v. Moss to conclude that the decision of the magistrate, although acting primarily under the Justices Act 1902 (N.S.W.), was a decision "under an enactment". As I have said, precisely the same considerations apply in relation to sub-sec. 68(1) of the Judiciary Act as apply in relation to sub-sec. 68(2).

After due reflection I have reached the conclusion that the authorities relied upon by counsel for the applicant are not of assistance in resolving the present problem. The question here is the question of the proper construction of s. 18 of the Act, an Act of the Commonwealth Parliament. It is not a question of what occurs when a provision such as s. 68 of the Judiciary Act operates on or picks up State law.

As counsel for the first respondent submitted, the task is to characterize the expression "the law of a State" in s. 18. Upon the basis of the words used by the legislature, was it intended that the section should have no application where the State law was applicable because it was picked up by a provision such as sub-sec. 68(1) of the Judiciary Act. To put it another way, does the Justices Act cease to be a State law for the purposes of the section if the crime charged is a Commonwealth crime and the section is applied by the operation of Commonwealth law.

In my opinion, the Justices Act (Q.) is properly characterized as a State law, notwithstanding that it applies in the particular case because it is picked up by a federal law. The fact that the Justices Act operates as a federal law does not conclude the question. The essential task is to ascertain what the draftsman of s. 18 of the Act intended. The Justices Act is a State law and, as a matter of language, is properly referred to as such notwithstanding its application to the circumstances of this case by virtue of the operation of the Judiciary Act. In my opinion there is no reason not to give the words used in sub-sec. 18(1) their ordinary meaning.

No doubt the Act was intended originally to facilitate the transfer of prisoners from one State to another where they were charged with a State crime but were outside the jurisdiction of the State in which the crime was alleged to have been committed. Previously much more elaborate procedures would have been necessary to obtain the extradition of a prisoner from one State to another. That is probably the principal reason why the Act was passed in 1901 so early after Federation. But when it was decided in 1903 to enact the predecessor of s. 68 of the Judiciary Act there seems to me to be no reason why the legislature would not have intended the Act to apply to federal crime. Futhermore, s. 18 of the Act has been the subject of amendment on more than one occasion. It was the subject of substantial amendment in 1953 when Part III of the Act in which ss. 18 and 19 appear, was replaced with a new Part III; see Service and Execution of Process Act 1953, s. 7. By then, s. 68 of the Judiciary Act had been in force for 50 years, although it too, had been the subject of amendments. If there were any question of the legislature's intention when the Act was first enacted in 1901, this was put to rest, in my opinion, by the amendment of the legislation after the enactment of the Judiciary Act.

Much was made by counsel for the applicant of the grave inconvenience which would be caused to an alleged offender if he were charged in respect of a federal crime away from his home State. Reference was also made to the provisions of s. 80 of the Constitution in relation to trials and of the sections of the Judiciary Act which were passed in order to deal with crimes committed in more than one State. But sub-sec. 18(6) and s. 19 of the Act provide for safeguards which will apply to enable a court to discharge a person if it would be oppressive to execute the warrant. The existence of the discretion conferred by sub-sec. 18(6) neutralises, in my opinion, the considerations which might apply if it were absent. This provision of the statute reinforces me in my conclusion that there is no reason not to give the section the construction contended for by counsel for the first respondent if the words used will permit it.

There are other considerations. It is possible that there is a gap in the legislation, but that is not a view I would lightly form unless the language of the relevant statute compelled it. It would be manifestly inconvenient if the Commonwealth, which has a presence in every part of Australia, should be forced to charge people with crime only in the particular State or Territory in which they happened to be at a given time. This case has a number of special circumstances because Western Australia is the accused's home State. But there are no doubt many cases where crimes have been committed in one State and an accused person has escaped to or gone to live in another State. All the witnesses may be in the State where the crime is alleged to have been committed. The result contended for by counsel for the applicant would mean that no committal proceedings could take place anywhere but in the State where the accused happened to be at the time of his arrest. He might be there only for a short period and committal in that State might be as inconvenient for him as it would be for the Crown and its witnesses. The words permitting it, a construction is called for which is sensible and will take account of practical difficulties such as I have mentioned. One would not give effect to such a construction if it were plainly against the words of the provision in question. But in my opinion it is not and it is a construction which ought to be adopted.

Before I conclude this part of the judgment I should mention two matters. Counsel for the applicant placed reliance upon the change which was made to the wording of sub-sec. 68 (1) of the Judiciary Act by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983. I do not set out the wording of the Act before the amendment. I myself do not think that the alteration of the section in the repects relied upon casts any light upon this question. I am strengthened in that view by a consideration of the terms of an explanatory memorandum which was circulated to members of Parliament before the second reading speeches. The relevant pages of the memorandum are pages 74 to 76.

The other matter that I should mention was not the subject of any submission. It is the use in ss. 18 and 19 of the Act of the word "return". This may suggest that the draftsman had in mind that prisoners would be returned from the State where they were arrested to the State where they had committed the crime. It may not take account of a situation such as the present where the crime was committed in more than one State and the acts of a particular accused were all committed in the State other than the State of the issue of the warrant with the result that in ordinary language there is no question of return. In this context the prisoner is coming to Queensland for the first time. I have given this matter some consideration. After due reflection I have reached the conclusion that the word "return" is not used in the sense which I have mentioned. I think one should give the word a meaning more akin to the meaning it has when used in connection with writs of various kinds and elections; see the Shorter Oxford Dictionary. In another context it is by no means an incorrect use of language for a recently elected member of Parliament, not previously a member, to say that he has been returned with a clear majority. I refer also to s. 7 of the Limitation Act 1623 (U.K.) where the expression "retorned from beyond the seas" is used. It has been held that this provision did not imply that a plaintiff, beyond the seas when the cause of action arose, had been in England before; Stroud's Judicial Dictionary, 4th Edition, Vol. 4, p. 2387 and the cases there cited.

For the reasons I have given I reject the first submission made on behalf of the applicant. That leaves the second submission which is a challenge to the decision made by the Magistrate upon the application made by the applicant pursuant to sub-sec. 18 (6) of the Act. I have reached the conclusion that it would be inappropriate for this Court to deal with that matter. In my opinion the case falls squarely within the provisions of sub-para. 10 (2) (b) (ii) of the Judicial Review Act which I have earlier quoted. Here s. 19 makes adequate provision under which the applicant is entitled to seek a review by another court, that is, the Supreme Court of Western Australia of the decision of which he complains. The review is a complete one. It is not restricted in the way that review by this Court under the Judicial Review Act is restricted. Furthermore there are similar applications pending brought by the Crown in the five other cases. It would seem to me to be quite unsatisfactory for there to be two hearings of the same question by different courts. The sensible course is for each of the matters to be reviewed by the one court, in this case the Supreme Court of Western Australia. For that reason, although I have jurisdiction to do so, in the exercise of my discretion, I refuse to entertain the application on this ground.

It follows that this application must be dismissed. The applicant is ordered to pay the respondents' costs thereof.