United Kingdom v Forsyth (No 2) - [2003] FCA 1072

FEDERAL COURT OF AUSTRALIA
United Kingdom v Forsyth (No 2) [2003] FCA 1072
EXTRADITION – judicial review – extradition proceedings – magistrate hearing proceedings – application for bail – application refused – renewed application for bail – original warrant for arrest in requesting country administratively withdrawn – withdrawal subject to judicial review in requesting country – interim order as to validity made in requesting country – whether special circumstance – whether requested person ‘extraditable person’ – irrelevant consideration – error of law – jurisdictional error – certiorari issued quashing magistrate’s decision
Extradition Act 1988 (Cth) s 15
United Mexican States v Cabal (2001) 183 ALR 645 cited
Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 cited
Singh v United States of America [1997] FCA 612 cited
UNITED KINGDOM v CHARLES ALISTAIR FORSYTH
W203 OF 2003
FRENCH J
7 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W203 OF 2003

BETWEEN:

UNITED KINGDOM
APPLICANT

AND:

CHARLES ALISTAIR FORSYTH
FIRST RESPONDENT

HIS WORSHIP MR ROBERT BLACK SM
SECOND RESPONDENT

JUDGE:

FRENCH

DATE OF ORDER:

7 OCTOBER 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.An order in the nature of certiorari that the Second Respondent’s decision of 22 September 2003 to release the First Respondent on bail and his decision of 23 September 2003 to continue to release him upon bail be quashed.
2.An order in the nature of mandamus directed to the Second Respondent to consider and determine the First Respondent’s application for bail according to law.
3.The First Respondent is to pay the Applicant’s costs of the application.
4.There is liberty to the parties to apply by written submission within forty eight hours for any further necessary directions relating to the implementation of these orders.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W203 OF 2003

BETWEEN:

UNITED KINGDOM
APPLICANT

AND:

CHARLES ALISTAIR FORSYTH
FIRST RESPONDENT

HIS WORSHIP MR ROBERT BLACK SM
SECOND RESPONDENT

JUDGE:

FRENCH

DATE:

7 OCTOBER 2003

PLACE:

PERTH

REASONS FOR JUDGMENT
Introduction

On 3 November 2002, Charles Alistair Forsyth was arrested on a provisional warrant issued under the Extradition Act 1988 (Cth) in respect of offences allegedly committed in the United Kingdom. A warrant for his arrest had issued in that country on 17 October 2002. Pending proceedings to determine his eligibility for extradition under s 19 of the Act Mr Forsyth applied for bail and was refused on the basis that there were no special circumstances justifying his release, as required by s 15 of the Act, and that he posed a real risk of flight.
In August 2003, however, the original warrant for his arrest was withdrawn in the United Kingdom, it is said, as the result of an administrative error. An interim declaration of the validity of the warrant has since been obtained in the High Court of Justice pending determination of a substantive application for the…

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.

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Details

Case: [2003] FCA 1072
Decision Date: 7 OCTOBER 2003

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, between the United Kingdom, the applicant, and Robert Forsyth, the respondent. The case revolved around the refusal of Forsyth's bail application by a magistrate. The UK sought a writ of certiorari to quash the magistrate's decision and a writ of mandamus to compel the magistrate to reconsider Forsyth's bail application. The primary issue before the court was whether the magistrate's decision to refuse bail was an error of law that warranted the grant of certiorari.

The court held that the magistrate had erred in not adequately addressing the risk of Forsyth fleeing the country. The court also noted that Forsyth's medical treatment, which had been a temporary impediment to his flight risk, had ended, and no other factors had changed since the original decision to refuse bail. The court found that the magistrate's decision did not adequately address these issues, and therefore, an error of law had been made. The court granted the writ of certiorari to quash the magistrate's decision to release Forsyth on bail and the writ of mandamus to compel the magistrate to reconsider Forsyth's bail application according to law. The court also ordered Forsyth to pay the UK's costs of the application and allowed the parties to apply for further directions if necessary.

In conclusion, the High Court quashed the magistrate's decision to release Forsyth on bail and directed the magistrate to reconsider Forsyth's bail application according to law. The court found that the magistrate had erred in not adequately addressing the risk of Forsyth fleeing the country and in not considering the change in circumstances since the original decision to refuse bail. The court ordered Forsyth to pay the UK's costs of the application and allowed the parties to apply for further directions if necessary.

Orders

Orders of the court

1. An order in the nature of certiorari that the Second Respondent’s decision of 22 September 2003 to release the First Respondent on bail and his decision of 23 September 2003 to continue to release him upon bail be quashed.

2. An order in the nature of mandamus directed to the Second Respondent to consider and determine the First Respondent’s application for bail according to law.

3. The First Respondent is to pay the Applicant’s costs of the application.

4. There is liberty to the parties to apply by written submission within forty eight hours for any further necessary directions relating to the implementation of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

In my opinion therefore an error has been made which justifies the grant of certiorari. I would add that the learned magistrate’s reasons do not appear adequately to have addressed the risk of flight by Mr Forsyth and the fact that, apart from the temporary impediment of his medical treatment, no other factor affecting risk of flight seems to have changed since the time of the magistrate’s original decision to refuse bail. Conclusion For the preceding reasons I propose to make the following orders: 1.An order in the nature of certiorari that the Second Respondent’s decision of 22 September 2003 to release the First Respondent on bail and his decision of 23 September 2003 to continue to release him upon bail be quashed. 2.An order in the nature of mandamus directed to the Second Respondent to consider and determine the First Respondent’s application for bail according to law. 3.The First Respondent is to pay the Applicant’s costs of the application. 4.There is liberty to the parties to apply by written submission within forty eight hours for any further necessary directions relating to the implementation of these orders.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W203 OF 2003

BETWEEN:	UNITED KINGDOM APPLICANT
AND:	CHARLES ALISTAIR FORSYTH FIRST RESPONDENT HIS WORSHIP MR ROBERT BLACK SM SECOND RESPONDENT
JUDGE:	FRENCH
DATE OF ORDER:	7 OCTOBER 2003
WHERE MADE:	PERTH

JUDGE:	FRENCH
DATE:	7 OCTOBER 2003
PLACE:	PERTH