Samson, Peter Robert v McInnes, Rosanne Helen

[1998] FCA 1513

FEDERAL COURT OF AUSTRALIA

EXTRADITION – extradition of a New Zealand national – review of South Australian Supreme Court affirming extradition – whether warrant used to arrest appellant properly “indorsed” in manner required by s 28 Extradition Act – whether arrest was irretrievably flawed.

Extradition Act 1988 (Cth) ss 5, 28, 34, 35
Acts Interpretation Act 1901 (Cth) s 25C
Service and Execution of Process Act 1901 (Cth) s 18
Extradition (Commonwealth Countries) Act 1966 (Cth) s 24

Halsbury’s Law of England Vol 29 par 229
English and Empire Digest Vol 15 par 12410
Jowitt’s Dictionary of English Law 2^nd Ed
Oxford English Dictionary
The Macquarie Dictionary

Brown v Lizars (1905) 2 CLR 837 referred
cf Winkler v Director of Public Prosecutions (1990) 25 FCR 79 referred
Re Bolton; Ex Parte Bean (1987) 162 CLR 515 followed
Regina v Metropolitan Police Commissioner: Ex Parte Melia [1957] 3 All ER 440 followed
The Queen v Edwards (unreported:  Supreme Court of Queensland Court of Appeal:  25 August 1998) referred

PETER ROBERT SAMSON v ROSANNE HELEN MCINNES

AND COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

NO SG 114 OF 1998

VON DOUSSA, O'LOUGHLIN & KENNY JJ
ADELAIDE
27 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 114 of 1998

ON APPEAL FROM THE JUDGMENT OF THE HONOURABLE JUSTICE PRIOR

BETWEEN:

PETER ROBERT SAMSON
APPELLANT

AND:

ROSANNE HELEN MCINNES
STIPENDIARY MAGISTRATE
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

JUDGES:

VON DOUSSA, O'LOUGHLIN & KENNY JJ

DATE OF ORDER:

27 NOVEMBER 1998

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The surrender warrant issued by the First Respondent on 17 June 1998 be quashed.

3. Declare that the surrender warrant is invalid as there was no indorsed New Zealand warrant within the meaning of subpar 34(1)(a)(i) of the Extradition Act 1988 before the First Respondent when she purported to issue it.

4. The Appellant be released from custody forthwith.

5. The Appellant recover his costs of the appeal in this Court.  Each party to bear their own costs of the review before Prior J.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 114 of 1998

ON APPEAL FROM THE JUDGMENT OF THE HONOURABLE JUSTICE PRIOR

BETWEEN:

PETER ROBERT SAMSON
APPELLANT

AND:

ROSANNE HELEN MCINNES
STIPENDIARY MAGISTRATE
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

JUDGES:	VON DOUSSA, O'LOUGHLIN & KENNY JJ
DATE:	27 NOVEMBER 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

At the conclusion of argument in this matter, the Court announced that its members were of the unanimous view that this appeal should be allowed; it said that it would publish its reasons in due course; these are those reasons.

On 17 June 1998, Ms RM McInnes, a Stipendiary Magistrate sitting in the Adelaide Magistrates’ Court, by warrant, ordered that the appellant, Peter Robert Samson, be surrendered to New Zealand (“the surrender warrant”).  That order was made pursuant to the provisions of subpar 34(1)(a)(i) of the Extradition Act 1988 (Cth) (“the Act”). Section 34 of that Act is found in Pt III (ss 28 to 39 inclusive) which is entitled “Extradition from Australia to New Zealand”; that Part contains provisions that, in their operation, are applicable only to extradition proceedings involving New Zealand.

Acting under subs 35(1) of the Act, the appellant applied to the Supreme Court of South Australia for a review of the magistrate’s order; he was unsuccessful. On 28 August 1998, a judge of that Court confirmed the order of the magistrate. The appellant now appeals to this Court from the order of the Supreme Court.

THE FACTS

The case for the Crown in support of the order for extradition centred upon the evidence of a South Australian Police Officer, Detective Senior Constable Kahl (“Detective Kahl”).  He said that in March 1998 he received information from a confidential source about a person who was alleged to be an illegal immigrant and who was said to be wanted in New Zealand for armed robbery.  Detective Kahl made inquiries of the Department of Immigration and of the New Zealand authorities; ultimately, as a result of those and other inquiries, the New Zealand authorities issued a warrant for the arrest of the appellant.  That warrant, which was signed by a New Zealand District Court Judge on 18 May 1998, was received by the South Australia police on 10 June 1998.  Detective Kahl inquired within the Police Department about matters of procedure and jurisdiction and was erroneously informed that he could arrest the appellant on the basis of the New Zealand warrant without more.  He therefore proceeded to execute the warrant and arrested the appellant at 2.15 pm the same day.  Detective Kahl said that at the time of the arrest he also told the appellant that he was illegally in Australia. 

Detective Kahl lodged the appellant at the Elizabeth Police Station, and interviewed him first at 3.59 pm and later again at 9.19 pm.  On the morning of 11 June 1998 Detective Kahl arranged for the appellant to appear before a District Court Judge in Adelaide.  The Judge was of opinion that he had no jurisdiction to consider the matter, and indicated that the appellant should be brought before a magistrate.  This occurred later on 11 June 1998, and the appellant was remanded in custody until the following day.

It was accepted that the warrant, at the time of its execution, was defective in that it did not carry a magistrate’s written endorsement authorising its execution in Australia: see s 28 of the Act. That section makes it clear that the mere existence of a New Zealand warrant does not authorise an Australian police officer to execute it. The section lays down a simple procedure that must be followed in every case:

“28.     Where:

(a)an application is made, in the statutory form, on behalf of New Zealand to a magistrate for the indorsement of a New Zealand warrant under this subsection; and

(b)the magistrate is informed by affidavit that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia;

the magistrate shall make an indorsement on the warrant, in the statutory form, authorising the execution of the warrant in Australia by any police officer.”

See also Brown v Lizars (1905) 2 CLR 837 where it was held that a reasonable suspicion that a person had, in another country, committed an offence which, if committed in Victoria, would have a been a felony, did not justify a police officer in making an arrest without a warrant - the only powers of arrest, detention and surrender of a person to another country are those conferred by Statute.

The defect in the arrest of the appellant was recognised by an officer of the Commonwealth Director of Public Prosecutions, Mr Klotz, late in the evening of 11 June 1998.  In the morning of the following day, 12 June, Mr Klotz arranged for a magistrate, Mr Swain, to be given the New Zealand warrant, a supporting affidavit and application and a document that the learned judge described as “. . . a document in the form prescribed by the Extradition Regulations”. His Honour went on to say that it was a printed form, identified within the Regulations as Form 17. It bore reference to s 28 of the Act and reg 3 of the Regulations. It was headed as the form prescribed is headed: “Endorsement Of New Zealand Warrant Under s 28, Authorizing Execution of Warrant in Australia”.  Mr Swain signed the Form 17 and arranged for it, together with the warrant, to be returned to Mr  Klotz.

Noting that the magistrate had not made “an indorsement on the warrant” - those being the words used in s 28 of the Act - Mr Klotz requested a member of the Court staff to ask Mr Swain to indorse the warrant itself “to indicate that he had seen that specific document”; Mr Swain did this.  He signed and dated the warrant, adding the word “Indorsed” above his signature; he also had the court seal placed over the word “Indorsed” and his signature.  The documents were then returned to Mr Klotz.

When the appellant was brought before the Magistrates’ Court later that same day, the magistrate who was then presiding, Ms McInnes, was advised that the warrant, at the time of its execution, had been defective (for the reasons set out above).  She therefore ordered that the appellant be released.  Shortly thereafter, and in the presence of his then solicitor, the appellant was once again arrested.  At the time of that arrest he was served with a copy of the warrant that had been signed by Mr Swain earlier that day together with a copy of the Form 17.  He was then brought before Ms McInnes again and thereafter remained in custody to appear in the Adelaide Magistrates’ Court on 17 June 1998.

THE GROUNDS OF APPEAL

At the hearing of the appeal, the appellant submitted that the whole process with respect to the New Zealand warrant, its execution and the appellant’s second arrest was irretrievably flawed. There can be no doubt that the appellant’s original arrest and detention was not effected in accordance with the procedures that are so clearly laid out in the provisions of Part III of the Act. At the time of his original arrest, no application had been made to a magistrate nor had any affidavit been supplied as required by s 28; and, of course, the warrant had not been indorsed. Nevertheless, these failures can not amount to some form of subsequent immunity in favour of the appellant. They are quite capable of remedy. This is not a case where the authorities had deliberately contravened the law: cf Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 91-94. The question that must be determined is whether the efforts of Mr Klotz and Mr Swain were sufficient to remedy the earlier omissions.

THE CASE FOR THE APPELLANT

Counsel for the appellant in his written submissions relied on the decision of the High Court in Re Bolton; Ex Parte Bean (1987) 162 CLR 515. That case was concerned with the provisions of the Defence (Visiting Forces) Act 1963 (Cth). The question was whether s 19 of that Act authorised the handing over to the United States authorities in Australia of a person who had allegedly deserted from the US Marine Corps in Vietnam. In holding that the section only applied to those who deserted whilst a member of a visiting force that was then present in Australia, Mason CJ Wilson and Dawson JJ acknowledged that the matter was not free from doubt but, nevertheless construed the legislation beneficially in favour of the individual, saying “. . . we would not be justified in reading an implication carrying such serious consequences for the liberty of the individual into s 21(1) of the Act” (p 520).  In the same case Brennan J (as he then was) reviewed the old authorities, emphasising (at p 522) that there must be an “overriding statutory authority” for the arrest and surrender of a person who is resident in Australia.  (See also Deane J at 528 and Gaudron J at 547).  Brennan J added at p 523 that because the law is very jealous of any infringement of personal liberty, there are “powerful considerations in favour of strict construction” of any statute that purports to impair a right to personal liberty.  The remarks of the Justices in Re Bolton; Ex Parte Bean are to be placed in the forefront when considering the issue that is to be decided in this case.

THE INDORSEMENT

Form 17 of the schedule to the regulations is entitled:

“Endorsement (sic) of New Zealand Warrant under section 28 Authorising execution of Warrant in Australia”.

The body of the form is as follows:

“To all police officers within the meaning of the Extradition Act 1988.

I, (name and designation of magistrate), a magistrate within the meaning of the Extradition Act 1988, under section 28 of that Act, hereby authorise and request you to arrest (insert name of person), being the person named in the New Zealand warrant to which this endorsement relates, in any State or Territory of the Commonwealth, and to bring *him/*her/, as soon as practicable, before a magistrate in the State or Territory in which *he/*she/ is arrested to be dealt with according to law.

Dated  19  .

(Signature and designation of magistrate)”

The case for the appellant is that the word “Indorsement” or “Endorsement” (the two spellings appear respectively in the Act and the regulations) and its derivatives means that the contents of Form 17 must appear on the New Zealand warrant – it is not sufficient for the “Indorsement” to be contained in a separate document as happened in this case.  The appellant relied upon the decision of the United Kingdom Court of Appeal in Regina v Metropolitan Police Commissioner: Ex Parte Melia [1957] 3 All ER 440. In that case, the Dublin District Court issued a warrant for the arrest of the applicant, Melia. A United Kingdom Magistrate purported to indorse the warrant by signing a form that was then pinned to the warrant. Section 12 of the Indictable Offences Act 1848 (UK) relevantly provided that:

“… if any person against whom a warrant shall be issued in . . . Ireland, by any justice of the peace . . . shall . . . reside . . . in . . . England . . . it shall and may be lawful for any justice of the peace in and for the county or place . . . where [such person] shall reside or be . . . to make an indorsement  on the warrant, signed with his name, authorising the execution of the warrant within the jurisdiction of the justice making the indorsement.”

In a seven line judgment Lord Goddard CJ, delivering the judgment of the Court, concluded that “the warrant has not been indorsed in the manner required by the Indictable Offences Act 1848”.  He added that pinning a document that contained the indorsement of the United Kingdom Magistrate to a warrant did not amount to “an indorsement on the back of the document as required by law”.  It is quite clear that his Lordship held the view that the indorsement had to be found somewhere on the document that was the originating warrant from the requesting country.

It would seem that the learned judge in the Court below, who was not referred to Melia’s case, did not consider that the indorsement had to be found on the warrant.  At one stage, he said that “Indorsement can occur by relating the indorsement to the warrant”.  Later he concluded by saying:

“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.”

THE CASE FOR THE RESPONDENTS

Counsel for the respondents submitted that the decision in Melia’s case was distinguishable on two grounds; first, it lacked the signature of the magistrate, the seal of the Court and the presence of the word “Indorsed” and secondly, the relevant UK statute did not contain any prescribed form for the relevant indorsement. Counsel submitted that the presence of Mr Swain’s notations on the face of the warrant (including the presence of the seal of the Magistrates’ Court) was, when coupled with the due execution of Form 17, a sufficient compliance with the provisions of s 28 of the Act. Counsel sought to obtain some benefit from the provisions of s 25C of the Acts Interpretation Act 1901 (Cth) which provides as follows:

“25C.Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”

However, it is not suggested that the Form 17 that was used in this case did not strictly comply with the provisions of the regulations; the issue is whether, notwithstanding strict compliance, the contents of Form 17 must be found somewhere on the warrant and not in a separate document.

DECISION

In our opinion, this Court should follow the decision of the Court of Appeal in Melia’s case.  The combined researches of counsel and the Court have not found it to be the subject of criticism either in the United Kingdom or in Australia.  It is referred to in Halsbury’s Law of England Vol 29 par 229 as authority for the proposition that:

“Pinning the signed indorsement to the warrant is not enough.”

A similar entry appears in the English and Empire Digest Vol 15 par 12410.  After a period of forty years or more, it should now be accepted; this Court should acknowledge “the length of time a decision has stood undisturbed . . .”:  c.f.  the remarks of Mason CJ, Wilson and Dawson JJ in Re Bolton:  Ex Parte Beane (above) at 520.

Furthermore, other provisions of the Act support the view that the language of s 28: ie “the magistrate shall make an indorsement on the warrant” should be interpreted literally. For example, under s 34 reference is made to a person who has been remanded under “an indorsed New Zealand warrant”, a term that is defined in s 5 to mean “a New Zealand warrant that has been indorsed under s 28”.  Such language does not readily lend itself to an interpretation that would permit the required indorsement to be found in a separate document.

According to Jowitt’s Dictionary of English Law 2^nd Ed, the word “Indorsement” comes from the Latin “in” meaning “upon” and “dorsum” meaning “a back”; hence, an indorsement is “anything written or printed upon the back of a deed or writing”.  This definition is supported by both the shorter Oxford English Dictionary and The Macquarie Dictionary.  These definitions therefore lend support – if support is needed – to the decision in Melia’s case.  It is not as if the concept of “an indorsement on the warrant” is something new or revolutionary. Those words are the words that are used in subs 18(1) of the Service and Execution of Process Act 1901 (Cth). They were also used in subs 24(1) of the former Extradition (Commonwealth Countries) Act 1966 (Cth).

In the opinion of the Court there are sound practical reasons for insisting that the Form 17 indorsement must be found on the back of the warrant. It is the tangible evidence that an Australian Magistrate has authorised the arrest of the person who is named in the foreign warrant. Without such an indorsement, the arrestee would be entitled to challenge the right of a police officer to execute a warrant of a foreign country in Australia. The production of a separate document containing the Form 17 indorsement may not self-evidently link it to the relevant warrant; but an indorsement on the back of the warrant puts the issue beyond doubt. The insistence that the indorsement be found on the back of the warrant means that the respondent can not call in aid s 25C of the Acts Interpretation Act.

The circumstances of this case demonstrate the importance of the New Zealand warrant bearing the indorsement as required by Form 17.  That indorsement directs the arresting police officer what is to happen with the arrested person, namely that he or she be brought before a magistrate as soon as practicable.  In the present case this did not occur as there was no direction to that effect on the New Zealand warrant.  The New Zealand warrant was in the following terms:

“TO:    Every Constable

PETER ROBERT SAMSON
(Full name)

OF:     EX 71 MORROW AVENUE, HAMILTON
(Address and Occupation)

(hereinafter called the defendant), is charged with AGGRAVATED ROBBERY WITH AN OFFENSIVE WEAPON

The defendant is liable on conviction to a sentence of imprisonment and was not personally present at the hearing this day and I think fit to issue a warrant to arrest the defendant and bring the defendant before a Court.

I DIRECT YOU to arrest the defendant and bring the defendant before a District Court (or this Court) as soon as possible.

Dated at Hamilton this 18^TH day of MAY 1998.

(signed)
  District Court Judge”

It appears that Detective Kahl, proceeding under the misapprehension that he could act on the warrant received from New Zealand, considered that he was required to bring the defendant before a District Court, hence the arrangements he made for that to happen on the following day.  Had Detective Kahl been properly instructed by an indorsement that he was to bring the appellant before a magistrate, that could easily have occurred on the afternoon of 10 June 1998 at Elizabeth.

Even in the form in which Mr Swain indorsed the warrant on 12 June 1998, the warrant, standing alone, continued to give a misleading direction to the arresting police officer to bring the arrested person before a District Court.  The mere notation that the warrant had been “indorsed” gave no indication that there was a need to read another document to ascertain the obligation placed by the indorsed warrant upon the police officer effecting the arrest.

In The Queen v Edwards (unreported:  Supreme Court of Queensland Court of Appeal:  25 August 1998) the Court said that:

“. . . full right should be given to the need for the sufficiency of compliance with the prescribed conditions for search warrants, since they permit infringement of the ordinary citizen’s right to the privacy of his or her premises . . .”

Although the Court found in that case that some minor defects were immaterial to the validity of the warrant, its statement of primary principle has full application to the circumstances of this case. The suggestion from the Bar table that the use of a separate document for the requisite indorsement accords with common practice cannot stand in the face of the clear requirements of s 28 of the Act. The appeal is therefore allowed and the Court declares that the surrender warrant is invalid as there was no indorsed New Zealand warrant within the meaning of subpar 34(1)(a)(i) of the Extradition Act 1988 (Cth) before the first respondent when she purported to issue it. The surrender warrant is quashed and the appellant is released from custody forthwith. The appellant is entitled to recover his costs of the appeal in this Court but in the circumstances of this case each party should bear their respective costs in the Court below.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             27 November 1998

Counsel for the Appellant:	Mr P Rice
Solicitor for the Appellant:	WAG Morris
Counsel for the first and second Respondents:	Mr C Kourakis QC with him Mr O Klotz
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	23 November 1998
Date of Judgment:	27 November 1998