Winkler v Director of Public Prosecutions

[1990] HCATrans 165

-!11,~USTRALIA,,~

--- -~:»)'.$'.-«((('-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S74 of 1990

B e t w e e n -

FRANKLIN ALEXANDER WINKLER

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

and

THE UNITED STATES OF AMERICA

Second Respondent

and

JONATHAN STEUART WILLIAMS

Third Respondent

Application for special leave

to appeal

Winkler 1 6/8/90

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 2.20 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with

my learned friend, MR M. BLOOM, for the applicant.

(instructed by Kosmin & Associates)

MR J.J. SPIGELMAN, QC: If the Court pleases, I appear with

my learned friend, MR A.R. ROBERTSON, for the first

. and second respondents. (instructed by the

Director of Public Prosecutions)

MASON CJ:  The Registrar has been advised by the State Crown

Solicitor's office, who act for the third-named

respondent, that the third-named respondent does
not wish to be represented at the hearing and will

abide by the decision of the Court except as to

costs.

MR BENNETT: If the Court pleases. Your Honours, I hand up

to the Court a simplified chronology, five copies.

I propose to start by taking Your Honours very

briefly through that because I can then demonstrate

quite fast how the points arise.

Your Honours will see there was a request for

extradition in August 1987.	A provisional warrant
was issued pursuant to the Treaty.	The fugitive

was arrested, bail was granted, and that was

continued right up to the judgment of the Full

Court. The Treaty provides - if Your Honours will

go to page 70 of the application book - at the top

of the page, that:

A person arrested upon such an

application shall be set at liberty upon the

expiration of forty-five days from the date of

his arrest if a request for his extradition

accompanied by the documents specified in

Article XI has not been received.

Article XI is on the previous page, and

Your Honours see at lines 18 to 20, the request -

must also be accompanied by a warrant of

arrest issued by a judge or other judicial

officer.

Now, within the 45 day period, the next step

in the chronology is that there was an application

for request for extradition accompanied by a bundle

of affidavits and what purported to be a warrant.

Pursuant to that the first Attorney-General's

notice was issued. If Your Honours go to page 71,

Your Honours will see the significance of that.

Section 15 of the Act provides that -

where a requisition for the surrender ..... if

a warrant for the apprehension of the fugitive

has not been issued -

Winkler 2 6/8/90

then there is a procedure laid down. And if a

warrant has been issued and the person has been
apprehended, then there is a different form of

notice prescribed. And it has been said in a case

called Schlieske v Federal Republic of Germany,

which I have if Your Honours wish it, but I will

not hand it up unless Your Honours wish me to do so

-.it is 76 ALR 417 at 422 to 423 -

that that notice establishes the foundation of

the proceedings and indeed is analogous to an

information.

So the notice is issued. There was then argument

in February about the validity of the United States

warrant. The argument was that it was not

certified by a judge as required, or judicial officer, but merely by a registrar. A second

warrant was issued before the magistrate decided

that, reportedly curing that defect. There was

then a second request for extradition with fresh

documents. And then on 16 March the magistrate

held that the first warrant was not effective under

the Treaty, and the result was, if Your Honours go

back to the top of page 70, that -

a request for his extradition accompanied by

the documents specified in Article XI had not

been received -

within 45 days because all that had come within the

45 days was a warrant which did not comply with

Article XI.

The Full Court held unanimously that the

Magistrate ought then to have acted under

subsection (4) - on the top of page 70 - and set

the fugitive at liberty.

There is authority which, again, I will not take Your Honours to which established fairly

clearly that the effect of doing that under	corresponding provisions of other treaties is to	terminate the extradition proceedings. And that
seems to be recognized by subparagraph (5) which
says, again on page 70, line 8:

Paragraph (4) of this Article shall not prevent the institution of proceedings with a

view to extraditing the person sought if the

request is subsequently received.

So, you can start again, and that seems to

recognize the termination.

What happened was, however, that the

Magistrate took a view which is now held by the

Winkler 6/8/90

Full Court to be wrong. The Magistrate refused to

discharge under Article XII(4): he purported to
extend time under a provision which the Full Court

held does not authorize the extension of time and

allowed the proceedings to continue.

MASON CJ: What submissions were made to the Magistrate upon

that point?

MR BENNETT:  I think most of them are set out in the

application book; that he was found to discharge

immediately and had no power to extend.

MASON CJ: That was the submission made on behalf of the

applicant.

MR BENNETT:  Yes, Your Honour.

MASON CJ: What was the countervailing submission, if any,

that was made on that point?

MR BENNETT:  Your Honour, my recollection does not go to the

detail of it. I believe it was that - I was there

but I have forgotten the details - he had power to

do that.

MASON CJ:	To continue to detain.
MR BENNETT:	Yes, it must have been because - yes, I am told

that there was, in effect, an application to extend

time and that was acceded to. I think, in fact,

thinking about it, that may have been the day that

Mr Bloom was there and I was not there but I am not

certain of that, it is a long time ago. There is a

transcript of the whole event, so it is all

available if the matter goes further.

The matter then proceeded. In the course of

argument, counsel for the Director of Public

Prosecutions asserted that he was relying only on

the first notice, not the second Attorney-General's

notice, and the matter then proceeded. Now, what we say arises out of that - and I	should say, ultimately, there was extradition on
virtually all of the counts. Then
Mr Justice Davies set aside the extradition on all
but one. The Full Court restored some and left
some, so we are now at an intermediate stage on
what counts he has been extradited on but that is
not the main point in this application.

Now, we say a number of things flow from what

I have just put to Your Honours. The first is that

as a result of the Magistrate's erroneous decision,

his erroneous failure to take steps under

Article XII(4), there was a legal effect and a

Winkler 4 6/8/90

factual effect. The factual effect is that if we

had been discharged, it would have been open to the

applicant lawfully to leave Australia but, in any

event, it would have been necessary for fresh

proceedings to be commenced; fresh steps to be taken

and various matters to occur. Because that order

was not made the Magistrate was enabled to continue

with the extradition on, we will be submitting, a

number of false bases and he was therefore

prejudiced in both respects.

What we rely on is analogies from three areas of law - there is no direct authority on this.

There is some discussion in some recent English

cases which I will not trouble Your Honours with on

a leave application but they, for various reasons

we will be submitting, depend on differences in the

treaties. But we rely on three areas of law: the

first is analogy from Bunning v Cross; the second

is analogy from the principle referred to in

Broom's Legal Maxims which is actus curiae neminem

gravabit, that the act of the court should not

prejudice a person. That is a principle applied in

cases, for example, where the court adjourns for a

long time and a person whose cause of action will

abate with death dies during that period, one

disregards the principle because the act of court

should not prejudice the person.

The third matter is an analogy from decisions

such as Trimbole although that was, of course, a

constitutional case but the other cases where the

courts have held that where there has been an

unlawful extradition in the sense of someone just

being put on a plane without proper procedures,

then there is a discretion, in the country where

the person is brought to trial, to proceed no

further.

We would wish to submit that working on one or

more of those three analogies one would draw a

principle here that where a person is maintained in

custody, in notional custody, and proceedings are

enabled legally to continue where otherwise they

would not by an erroneous decision, the person

against whom it is made ought not to be prejudiced

by it.

The second aspect depends on the validity of

what took place after the Magistrate's decision.

What happened, as I have indicated, was that the first notice was relied on. On appeal, that was

permitted to be amended to a reliance on the second

notice. Now, I will come to the significance of

that in a moment. That is the third point. But in

relation to the second point we say this: that the

second notice simply could not be relied upon

Winkler 5 6/8/90

because if Your Honours go to section 15 on page 71
- the second notice was under section lS(l)(b)

which provides:

if a warrant for the apprehension of the

fugitive has been issued under section 16 and

a person has been apprehended -

then -

by notice in writing -

to a person -

before whom the person may be brought -

presumably pursuant to such a warrant -

inform the Magistrate that the requisition has

been made.

The proceedings pursuant to the first warrant have come to an end and we would submit that, therefore,

there was no power to issue a fresh notice based on

the first warrant - on the only warrant - and
therefore the second point is, very simply, that

the second notice was ineffective and therefore

that the proceedings could not continue. That is a

very short simple point of statutory construction.

The third aspect is again a point on which

there is no authority and that is the point I have

foreshadowed which is that once one accepts what

was said in Schlieske's case about the notice being

analogous to an information and being the whole

foundation of the proceedings, one cannot simply conduct a hearing on the basis of one notice and

then, on an appeal, when one realizes there is a

problem, say, "Oh well, I'll now seek to rely on a

different notice". Even in these days of

liberality in relation to amendment, it is one

thing to say one can amend an information or one

can even, in some circumstances, amend on appeal.	It is quite another to say, "Well, on appeal we'll
decide that the Magistrate wasn't hearing a matter
based on the first notice, he was hearing a matter
based on the second notice." And we submit that is something which the Court simply cannot do on appeal in this type of case. The Director, having
made his election at the hearing, he is bound by
it.

I should say there is a remark in the judgment

of Mr Justice Davies saying that his reading of the

transcript did not satisfy him of what I have just·

put to the Court in relation to the basis on which

the case was run but, Your Honours, my instructing

Winkler 6/8/90

solicitor has put on an affidavit; for what it is

worth, Your Honours have my recollection which is

quite clear on the subject, and the proceedings

before the Magistrate were certainly conducted on

the basis that the first notice was the one relied

on and there was an express concession made by

senior counsel at the time, not my learned friend,

to that effect.

So, those are the three grounds arising out of

that aspect. The fourth matter is a slightly

different matter. It depends upon Article XI.

Your Honours see that Article XI(3) provides that

the request:

must also be accompanied by -

the various documents. If Your Honours go to the

chronology Your Honours will see that there is no

one request which is accompanied by all the
documents. There is the first request which is on

20 October which has the invalid warrant; there is

the second request on 8 March which has a valid

warrant, a second warrant and otherwise the

affidavits but omits some affidavits which are then

added on a third occasion which is the third

request on 19 March. What was said was, "The
request was really all three requests and all the

documents were accompanied by them." There are

some cases on the meaning of "accompanied by" and

we will be submitting that there has to be a

request "accompanied by" at the one time.

MASON CJ: It does not sound like a great point of

principie, this particular question.

MR BENNETT:  No, it is not, not compared to the others,

Your Honour.

MASON CJ: Your major point, of course, is the first point.

MR BENNETT:	Yes, Your Honour.
MASON CJ: Now, in the Full Court of the Federal Court

reliance was placed on the decision of the House of

Lords having the unpronouncable name involving the

Greek and an attempt was made by - - -

MR BENNETT:	Yes, Athanassiadis.
MASON CJ:	An attempt was made to distinguish that case.

What do you say about the application of the House

of Lord's decision to this case?

MR BENNETT:  Your Honour, that case involved a treaty. I do

not think I brought it with me. We had some

submissions which we handed up below which compared

Winkler	6/8/90 the two treaties and which demonstrated that on the
key point there was a difference between them. That
case did not lay down a general principle. It merely held that on the basis of that treaty, the
obligation under the provision corresponding to
Article XII(4) did not require - yes, I have the notes.

In that case no warrant was issued because the

fugitive was already in custody and what the court

said was that the omission to issue a warrant was

not fatal to the continuation of the custody. In

other words, where a person was already in custody,

the provisions of the English legislation dealing

with the issue of a warrant were not mandatory.

But in the present case there was a violation of a

mandatory provision of the treaty and, more

importantly, section 15 clearly sets out a

condition precedent to the issue of the notice

which was relied on, the lS(l)(b) notice, that

there have been a relevant warrant for

apprehension. It is the fact that it is a

condition precedent in that way which, as I recall,

distinguished the English legislation, but I have

not brought that treaty with me and it is - - -

MASON CJ:  No. So that what was regarded as a technical

defect that could be disregarded in that case is,

in your submission, not a technical defect in this

case?

MR BENNETT:	Yes, Your Honour, that is so. And also, of course, that was a case where being in custody in
any event - - -

MASON CJ: Lawfully in custody.

MR BENNETT:  - - - lawfully in custody in any event, the prejudice which exists here simply did not exist.

Your Honour, those are the matters. I have

referred in the affidavit to the fact that we do

seek as one of the grounds of appeal to raise the

one group of counts and I have suggested an

undertaking which could be given if the Court

required it in relation to that.	If the Court
pleases.

MASON CJ: Yes, Mr Spigelman?

MR SPIGELMAN: Your Honour, unlike another case which came

before the Court not long ago, namely, Park Oh Ho,

the position of the respondent has not been in this
case at any stage before either Mr Justice Davies
or the Full Court to uphold the validity of the

continued notional detention in terms of bail

conditions. On the other hand, there has never

Winkler 6/8/90

been a challenge directly to the continuation of those bail conditions from the first occasion in

March 1988 in which the application was made on the

basis of a challenge to the original warrant to the

continuation of the bail.

MASON CJ:  What do you mean by "challenge"?

MR SPIGELMAN: Direct challenge: an appeal or a review of

the Magistrate's decision to continue him in the

notional custody that putting him on recognizances

requires.

MASON CJ: But you concede that a submission was put to the

Magistrate that he should be discharged in terms of -

MR SPIGELMAN: That he should be discharged - by my friend -

I have just been looking - I did not appear on that

occasion. There were several applications to
discharge him from his bail; not just on the first

occasion, there were two or three subsequent ones.

MASON CJ: Yes, in reliance on Article XII(4).

MR SPIGELMAN:  Yes, that is so, and on the first of those

there, as it were, the second proceedings were not
then properly on foot, conceding my friend's

argument; he claims they never were. But there was

a period of a week or so in which there was not a

second formal Attorney-General's notice extant.

Now, that may or may not make any difference to the

point my friend relies on. But the matter has been

fought below on the basis that from some time,

being 45 days from the original arrest was the more

or less conceded amount or some - approximately

that day, the applicant was entitled to be set at

liberty. That was how it was argued before the Full Court and although I did not appear before

Mr Justice Davies, as I understand the position

before him too.

The question is whether that taints the

subsequent proceedings in some way and for the

reasons outlined in the Full Court, and they went

into my friend's submissions; they dealt with

Athanassiadis in detail and set out at page 95

their reasons for regarding it as indistinguishable

and we would, with respect, adopt those.

The question that we would ask the Court to

note is that at no stage was there an application

by way of an appeal or review of the decision to

continue the bail. What has happened is, in the appellate - sorry, it is not appellate, it is an application for review to the Federal Court which

has then gone - that the point has been run as a

Winkler 6/8/90

matter of tainting the subsequent proceedings.

But, we would submit that that is a matter that would be taken into account by this Court in

granting special leave, that at any time, including the day after the original application was refused,

proceedings in the way of habeas corpus or a

statutory equivalent could have been taken, and

were not.

In that regard, everything that my friend puts turns on questions of some kind of abuse of

process. There is no abuse here. There is an

error of law committed by a magistrate at the most,

an error of law which is, in itself, reviewable in

its own and with its own consequences. The

question for the Court and that the Full Court

dealt with, we would submit fully, is that it did

not taint in a collateral manner the other

proceedings.

McHUGH J: Well, except that the present applicant was

unlawfully held in this country for a period of

time during which the authorities were able to
issue another notice and the question is should
they be allowed to rely on a notice given in those

circumstances.

MR SPIGELMAN: That is the question. When, Your Honour, he

was unlawfully held, there was not any element such

as in the Trimbole case in which anyone attributed

that to any intention on the part of any officer or

whether the Magistrate or anybody appearing for

him, there has never been a suggestion of that nor is there any evidence of it. In the Trimbole case

there was. The suggestion was that he was

unlawfully held under some unrelated charge of

possessing a firearm, I think - - -

MASON CJ: As a pretext.

MR SPIGELMAN:  A pretext, and there .is no suggestion of a

pretext or any other abuse in this case and never

has been and the Full Court went through that in

great detail in distinguishing the other

authorities on which my friend relied below. To

say there is no suggestion of abuse in this case -

what there is is a suggestion that a magistrate was

led into an error of law which the Full Court says

they find understandable when one reads the

statute. The statute permits an extension of time

in terms - 17(5), the old statute. There is no

question of abuse in this case and never has been.

McHUGH J: But the Magistrate was led into authority by your

client.

Winkler 10 6/8/90

MR SPIGELMAN: Well, we do not necessarily accept that,

Your Honour, in the sense that we made no

submissions to the contrary.

McHUGH J: What, did the Magistrate do it of his own

volition?

MR SPIGELMAN:  Yes. I am sorry, the matter arose - may I

say I have looked at the transcript for the first

time while my friend was on his feet making this

point. The point of the transcript to which my

attention was directed suggested the question first

arose from the Magistrate. He said, "17(5) lets me

extend time. Why can't I do it?"

MASON CJ: But what did your client have to say once the

Magistrate raised that question?

MR SPIGELMAN:  As I understand the position, we said nothing

to the contrary of the proposition but I do not

think, as it were, we adopted it but may I say I

would stand subject to correction on that,

Your Honour.

MASON CJ: Yes. Well, you went along with it.

MR SPIGELMAN: Well, if only by silence. Nothing I saw

would suggest that there was any argument to the

contrary.

MASON CJ: No. Well, when a judge or a judicial officer

offers something that is favourable to a party, the

party generally does not contradict him knowing

only too well that in the absence of contradiction

he will maintain that course in all probability.

MR SPIGELMAN:	May I say, having looked at that section of the transcript, it not having been referred to in
my friend's affidavit, just on my feet, that is my
quick understanding of what happened. There may
have been something more positive in the way of
adoption on later occasions because this
application, as I said to Your Honours, was renewed
on two or three subsequent occasions.

Could I take Your Honours, for example, to the

section in the application book at page 79 - well,

at page 79 the Full Federal Court simply

acknowledges that that application was made on a

number of times but in so far as matters got into

the appeal book at page 16 one of the applications
in this regard - this was one of the applications

made to accede to the applicant's request for a

discharge and it is here because this was one of

the decisions made by the Magistrate. At page 16,

line 10 he concludes his reasoning:

Winkler 11 6/8/90

I don't accede to the applicant's request for

discharge.

And then Mr Bennett said - - -

McHUGH J: But at page 79, 11, shows that the reason the

applicant was not discharged was because your

client - counsel for your client tendered the

United States warrants of arrest and that could

only have been done for the purpose of getting a

refusal to discharge under Article XII(4). It

looks as though your client initiated what became

an unlawful act.

MR SPIGELMAN:  There is no doubt that in a sense we went

along with it. There is no doubt that he was

informed at that stage that a fresh warrant had

been issued but whether it was done in the context

of the application for a discharge, I am afraid I

cannot assist the Court. This matter should be in

the application book and we do not have copies for Your Honours but I am reading from page 10 of that

day. It is page 643 in the appeal book below and

he said this:

As I have already indicated, Mr Cowdrey sought

to tender further warrant issued on

1 March 1988 which appears to be a warrant in

proper form in accordance with the treaty.

However, as I have indicated I regard myself

as having no jurisdiction now to deal further

with this matter. However, I do not think

that is necessarily the end of it.

So he went on to, as it were, deal with the point
under 17(5) separately from the new warrant.

May I say, 17(5) is a question - and we do not challenge and never chalienged that an error of law

was committed on that occasion by the Magistrate

finding that he had some sort of jurisdiction which

he found in the statute to extend the time. That
is what he actually found.	Now, there is no doubt

that we went along with that, in a sense, below.

Now, I am not able to assist the Court in terms of

the precise sequence of events. However, what is
clear is that my friend had every opportunity of

challenging that decision on numerous occasions

from the first occasion on which it was made in

March 1988, did so, but never came to any court to

set himself at liberty in the sense of having

himself removed from the bail conditions. What he
has sought to do throughout is to challenge in a

collateral manner the subsequent proceedings which

in an historical sense, we would submit, obviously,

were connected with a process of arrest which was

not really challenged but subsequently the

Winkler 12 6/8/90

continuation in some form of restraint on his

liberty which was not proper or we have never

challenged the finding to that effect.

Now, there is no doubt that he had certain rights in that respect and sat on his hands. The

point at page 16 was - I did not quite direct the

Court's attention to it - that my friend specifically sought at about lines 16 and 17

whether or not - asked the Magistrate to adjourn the matter so that he can consider his position

and make an application. This is just below the

final conclusion that he does not:

accede to the applicant's request for

discharge.

There could be no doubt that my learned friend had

in mind making an application of the relevant

character and never did. Instead, he has sought to

challenge on a collateral basis the ultimate

decision.

In every respect, Your Honours, we would

submit, that the question before the courts below

in this regard involve matters of discretion,

namely, whether or not there is no constitutional

doctrine in the character discussed by the Irish

Supreme Court in Trimbole relevant in this

jurisdiction. The question is whether or not as a

matter of discretion the conduct, if I may use that

compendious phrase, of the Director of Public

Prosecutions was such as to disentitle him from

proceeding on behalf of the United States of

America in irrelevant respects.

We submit that before this Court no error of

discretion has been shown. The courts below

exercised their discretion on correct principles.

In particular, they took into account the question of the nature of the conduct and said that nothing

like what happened in Trimbole or the other cases

they referred to occurred in this case and we would

submit that they exercised their discretion on
correct principles and this Court should not grant
special leave to interfere with them.

My friend put the question on the "accompanied by" point - nor, we say, that is a question of

fact, whether a document was accompanied by

something else. He then said there is an important

distinction between the two subsections of the

notice provisions.

MCHUGH J: Section 15?

Winkler 13 6/8/90

MR SPIGELMAN: Section lS(l)(b) and (l)(a). Your Honour,

that has no equivalent in the 1988 Extradition Act.

There is no such distinction between the two kinds

of notices now and that would be material for

Your Honours to take into account in terms of

whether there is a matter of general importance

that arises there. In any event, the Full Court

gave two separate and, we would say, cumulative

reasons for rejecting this point. The first, in

the majority decision, was - this appears at, for

example, page 99, line 27 - that the introductory

words of section lS(l)(b) are simply of historical

significance: was he, in fact, as a matter of

fact, originally arrested pursuant to such a

warrant?

Mr Justice Burchett, at pages 142 to 143, did not agree with that proposition but he came to the

conclusion in a different way and said, "Look,

there is just no material difference between

lS(l)(a) and lS(l)(b), it is just a question of

convenience of setting out the statute in terms of

the steps taken in two difference factual

situations." So, he rejected my friend's

contention in the relevant respect for different

reasons; either would do for present purposes and

we would submit Your Honours would not believe that

the decision was attended with sufficient doubt in

that respect.

My friend then put the proposition that the matter had been, as it were, argued at first

instance on a different basis and that my

predecessor in this regard changed the basis in the

course of argument during the application to

Mr Justice Davies. Now, he made reference to some

sort of indication to the contrary in

Mr Justice Davies' findings but we submit it is not

an indication to the contrary, it is a finding of

fact to the contrary.

If Your Honours were to turn to page 45, the

issue before Your Honours is whether or not my

predecessor relied on the second notice before the

Magistrate and at page 45 of the application book

at about line 8:

After reading the transcript of the

proceedings before the Magistrate, I am

satisfied that the Magistrate proceeded on 23

March 1988 and thereafter upon the

authorization of the Attorney-General's second

notice issued 22 March 1988.

He then goes on to say:

Winkler 14 6/8/90

I have not observed in the transcript of

the proceedings before the Magistrate any
reference to a formal tender of -

of that notice. That is a matter that was fixed
before the Full Federal Court and the actual tender

of the second notice before the Magistrate was

directed to the attention of the Full Court and, in
that regard, we submit there is nothing in this

point. There is a finding of fact at first

instance. It is adopted notwithstanding it is
challenged on appeal in the Full Court that in fact

we were dealing at all material times with the

second notice even though at one stage my

predecessor indicated that he thought that the
second notice was otiose in the sense if the first

notice was good enough he did not need the second

notice.

Now, he resiled from that proposition during

the course of argument before Justice Davies. In
the joint judgment at page 80 of the application

book there is at the top of the page a reference to

the new notice and a second notice.

When the matter came before Mr Williams on

23 March 1988 he was informed of the issue of

the new notice. Counsel for Mr Winkler

renewed their application for discharge from

bail but the magistrate adhered to his earlier

position.

That is another example of the kind of thing I

mentioned to Your Honours before.

Counsel for the present respondents sought a
date for a fresh hearing, based upon the new

notice -

and then at page 100 - we can hand up to

Your Honours copies of the transcript of that

occasion, I do not think it is necessary - at about

line 14, we say: 

Accordingly, the Attorney-General rightly

proceeded under s.lS(l)(b).

This was at the end of the analysis as to the

distinction between lS(l)(a) and (b).

The second notice was valid and it conferred

jurisdiction on Mr Williams to hear the

application stemming from the second notice.

To similar effect was Mr Justice Burchett at

page 138 where:

Winkler 15 6/8/90

When the matter came back before the

magistrate, who by then had received the new

Attorney-General's notice -

I think he means the Attorney-General's new

notice -

the normal procedure -

went on. And in that regard, we would submit that

the reason why the court did not deal with my

friend's legal submissions is that they were based

on the factual basis, that there was some such

difference in practice and they rejected that

factual basis.

If Your Honours please, they are our

submissions.

MASON CJ: Yes, Mr Bennett?

MR BENNETT: If Your Honours please. In relation to my

friend's first submission, there is a large body of

cases in which the courts, particularly the

Federal Court, have criticized litigants who have

sought to come to the Federal Court in the middle

of proceedings before magistrates rather than
waiting to the end and coming to deal with all

matters at the end of the proceedings; cases like

..... v Anderson and various others have repeated

those criticisms through the years.

It is a novel submission in the face of those

criticisms for someone to say that it is

insufficient for a party who is in some way harmed

by a step in proceedings before a magistrate to

fail to take it on appeal at that stage and,

indeed, as my friend pointed out and Your Honours

see from page 16, when we suggested we might do

that the Magistrate refused to adjourn to enable us

to do it. In fact, applications were made for a

discharge on the basis of Article XII(4) to the

Magistrate on three occasions - which all appear in
the application book:	16 March; 23 March and

18 July - on appeal to Mr Justice Davies and on

appeal to the Full Court.

So, it is not as if the point has been allowed

to go and to suggest that we ought to have brought

a preliminary further round of applications on a

case that was obviously going to have other

questions of law at the end of it is, in our

respectful submission, as a matter of procedure,

quite indefensible.

The second matter is that my learned friend

submitted that there was no guilty intent of the

Winkler 16 6/8/90

type which was found in Trimbole and, of course, we

have never suggested that there is. On the other

hand, there was certainly a clear taking advantage

of the situation. Your Honours will recall the one and the proceedings are adjourned and the
second warrant is issued in America while the

application for discharge is opposed so that, no

doubt, the second notice can be issued.

Now, I accept that everyone believed that what

the Magistrate - on that side - or the Magistrate

had done was correct and in that sense there was
nothing of the type which existed in Trimbole but

we would submit that a taking advantage of a

situation of that type which turns out to be an error of law is something which carries with it certain consequences when the error of law is
established.

The only other matter relates to this question of the assertion made at the hearing.

Your Honours, it is not an issue of fact. What was

said in front of the Magistrate and what was done

in front of the Magistrate is part of the court's

practice and procedure. It is not an issue of fact

which one makes findings on and which then bind a

party under something analogous to the concurrent

findings rule.

If one wanted to protect .•... one could submit

that Mr Kosmin's affidavit in this Court deposes to

the true situation and that is not contradicted

but, in fact, the transcript will be available.

The Court can draw its own conclusions from the

transcript, and I can tell Your Honours that there

is no doubt that my learned friend's predecessor

said, "I am relying only on the first notice" and

that was the basis of the argument and, indeed, we

did not put arguments on the second notice because

of that. The matter went just on the first notice.

On appeal, again, only the first notice was

relied on until the Full Court pointed out in the

course of argument, substantially argument on my

side, that there were real problems with it and

then there was the change of position in reply.

But we submit that what the Federal Court may have

said about that is not something which is a finding

on an issue of fact of the type my learned friend

refers to and it can simply be dealt with by this

Court.

Of course, Your Honours, the "accompanied by"

point, I conceded is not of great importance but it

is a point which arises and it can be dealt with

very briefly if leave is otherwise granted, and the

Winkler 17 6/8/90

words are words which do fall for construction in

various statutes from time to time. If the Court

pleases.

MASON CJ:  The Court will take a short adjournment in order

to consider its position in this matter.

AT 3.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.06 PM:

MASON CJ: Having regard to the particular facts and

circumstances of this case, the Court is of opinion
that the actual decision of the Full Court of the

Federal Court is not attended with sufficient doubt

to justify the grant of special leave to appeal.

The application is therefore refused.

MR BENNETT: If the Court pleases.

MR SPIGELMAN: With costs, Your Honour?

MASON CJ:	You do not oppose that, Mr Bennett?
MR BENNETT:	Your Honour, I submit that these proceedings

are analogous to criminal proceedings and it is

inappropriate to order costs.

MASON CJ: What do you say about that, Mr Spigelman?

MR SPIGELMAN: They are not criminal proceedings, although

they have relevant analogies, I would have to admit

that.

MASON CJ:  The application will be refused with costs.

AT 3.07 PM THE MATTER WAS ADJOURNED SINE DIE

Winkler 18 6/8/90