Winkler, F.A. v Director of Public Prosecutions

[1990] FCA 350

Re: FRANKLIN ALEXANDER WINKLER
And: DIRECTOR OF PUBLIC PROSECUTIONS; THE UNITED STATES OF AMERICA and
JONATHAN STEUART WILLIAMS
No. NG 346 of 1989
FED No. 350
Practice
25 FCR 404

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Practice - Extradition case - Order made by Full Court dismissing challenge to magistrate's order for surrender of appellant for extradition - Application to single judge for order staying the surrender pending an application for special leave to appeal to High Court - Jurisdiction to make such an order.

Federal Court of Australia Act 1976, s.23

HEARING

SYDNEY

#DATE 18:6:1990

Counsel for the Applicant: L Katz

Solicitors for the Applicant: Kosmin and Associates

Counsel for the Respondent: P McGrath

Solicitors for the First Director of Public
Respondent: Prosecutions

Solicitors for the Second Director of Public
Respondent: Prosecutions

Solicitors for the Third Crown Solicitor
Respondent:

JUDGE1

Following delivery of the Full Court judgment in this matter this morning, an application was made to me on behalf of Mr Winkler for an order staying his surrender for extradition pending an application being made to the High Court of Australia for special leave to appeal against the decision of the Full Court.

1. Mr Katz of counsel, who appears on behalf of Mr Winkler, says that the Court has jurisdiction to make such an order by virtue of s.23 of the Federal Court of Australia Act 1976. That section confers power on the Court, in relation to matters in which it has jurisdiction, to make orders of such kind, including interlocutory orders, as the Court thinks appropriate. Mr Katz argues that the Court does have jurisdiction generally in the matter, notwithstanding the fact that his client's appeal to the Full Court has now been disposed of. In support of that proposition he refers to a decision of French J in Tuncak v Young (1987) 14 ALD 286. That was a deportation case, the application of the deportee for judicial review having been dismissed by the primary judge. French J was then asked to make an order under s.23 to prevent the removal of the deportee from Australia until such time as a Full Court could consider the matter. His Honour acceded to that application, pointing to the balance of convenience being overwhelmingly in favour of the applicant.

2. I have no difficulty in accepting that a single Judge of the Court has jurisdiction to make an order such as that made by French J in the circumstances which were there present. The applicant for the interim order was a person who had either commenced an appeal to the Full Court of this Court or, alternatively, proposed to do so in the immediate future. Consequently the matter was still before this Court. It was within the competence of a single Judge of the Court to exercise the power of the Court to prevent the deportation of the applicant, the matter in contention in the proposed appeal, until the appeal itself could be considered. The report does not make clear whether a notice of appeal had already been filed at the time that French J dealt with the matter, but it would be a normal incident of such an order that the applicant be required to file the notice of appeal within a specific short time. The situation may be compared with that which sometimes occurs, particularly in deportation matters, when a judge is asked to deal with a new matter urgently. There is sometimes little information available and there has been no opportunity to file an application. It is not unknown for a judge, on being assured that an application will be filed promptly, to make an interim order in anticipation of the filing of the formal application. The underlying principle, in relation to both the case of an incipient appeal to the Full Court and an incipient application to a primary Judge, is that the jurisdiction of the Court is being invoked and there is an intention that it will be required to be exercised.

3. The present case is a very different case. In the present case the applicant for the stay order is not threatened by any order made in this Court. He is threatened by an order made by the magistrate for his surrender for extradition. He sought review of that order before a primary Judge of the Court and the primary Judge did modify the terms of the magistrate's order; but only in relation to the specific offences upon which he was to be surrendered. The primary Judge's decision related to the matters upon which he could be tried in America, conformably with the terms of the Australia-United States extradition treaty, rather than the question whether he should be surrendered for extradition at all.

4. Mr Winkler appealed to a Full Court and the primary case which he made at the hearing of the appeal was that for various reasons of law he should not be surrendered at all. But submissions were also put, on behalf of both the appellant and the respondents, as to the offences for which he could be surrendered. In the result, the Court was unanimously of the view that Mr Winkler's challenge to the magistrate's order for his surrender should fail, thus upholding the primary Judge's view, and the Court ruled substantially in favour of the respondents in relation to the offences for which he should be surrendered. One change was made, in favour of Mr Winkler, in relation to the ambit of count 30.

5. It seems to me that the matter of Mr Winkler's extradition is no longer before this Court. This Court has reviewed the magistrate's order and has dealt with that order. As I say, Mr Winkler's problem lies not in the likely execution of any order of this Court but in the execution of the magistrate's order. Counsel for Mr Winkler referred me to a decision of Brennan J, in Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 and, particularly, to his Honour's remarks at pp 684-685. Burgundy Royale was a case where an order had been made by a single Judge of the Supreme Court of the Northern Territory. The respondent to the proceedings appealed to the Court of Appeal of the Supreme Court of Northern Territory but the Court of Appeal dismissed the appeals. This left in operation the order of the single Judge. Brennan J was of the view that, under those circumstances, it would have been open to the Court of Appeal to have stayed the operation of the single Judge's order pending an application for special leave to appeal to the High Court. His Honour went on to refer to the desirability of the Court who has already dealt with the matter exercising any jurisdiction to stay because of its familiarity with the matter.

6. It seems to me that there is a significant difference between Burgundy Royale and the present case. In that case the applicant for a stay was threatened by the likely execution of an order of the Supreme Court of the Northern Territory. It may well be that the Court of Appeal of the Supreme Court of the Northern Territory has jurisdiction to prevent the operation of a decision of a single judge of that Court pending consideration of the matter by the High Court of Australia. But that is not the present case, because no order of this Court presents a problem for Mr Winkler.

7. In so far as familiarity with the matter may be an advantage, this can only go to the exercise of discretion. In support of the proposition that, if it has jurisdiction, the Court ought to exercise jurisdiction in favour of the applicant, counsel says that Mr Winkler is an Australian citizen; a matter which I do not think has been formally proved in the proceedings, but has been stated previously. He also says that the respondents do not object to his application. Counsel also invites me to consider the prospects of the High Court granting special leave to appeal.

8. As to that last matter, I simply say that I find it difficult to predict the course which the High Court will take. All that one can say is that the only general matter which falls for consideration is the effect of the failure of the magistrate to release Mr Winkler at the completion of the first hearing. That is a matter which is dealt with at some length in the judgments and comment has been made about this omission. However, it is the view of each member of the Full Court, upholding the view of the primary Judge, that, notwithstanding that omission, the magistrate had the power which he exercised to order Mr Winkler's surrender. It may be that the High Court will take a different view, but the applicant starts with the difficulty that, on the only matter of general or public concern, all four judges who have dealt with the matter have reached a conclusion against his client's case.

9. The other matters ventilated in the Full Court relate entirely to the detail of the various counts and, in particular, the sufficiency of evidence to support them. The High Court may well take the view that these are not matters of general significance.

10. As I say, I find difficulty in predicting what view might be taken in the High Court and I would not wish to deal with this application on the basis of my forecast of what might happen. My view is that this Court has no jurisdiction to grant the order which is sought by the applicant. As it seems to me, the Court exercises a statutory power, pursuant to the Extradition Act, to review the magistrate's order. That power was exercised by the primary Judge and his Honour's decision was reviewed by a Full Court pursuant to the relevant provisions of the Federal Court of Australia Act. Once the Full Court dealt with the appeal and made final orders, the Federal Court no longer had any role in the matter. The appropriate course is for the applicant, if he so wishes, to make an application to a single Justice of the High Court. I appreciate that a single Justice of the High Court would not have the background of familiarity with the matter which I have, as a member of the Full Court; but it may be easier for him or her to make an estimate of the likelihood of special leave to appeal being granted. The intervention of a Justice of the High Court at this stage has the additional advantage that any order can be tailored to that Court's commitments in regard to the hearing of special leave applications.

11. I dismiss the application for an order staying the surrender of Mr Winkler pending an application to the High Court.