Chvastek v The CommonWealth of Australia HC Rotorua Ap66/01

[2001] NZHC 1121

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP66/01

IN THE MATTER of an appeal by way of case stated pursuant to s 68 Extradition Act 1999

BETWEEN DARREN CHVASTEK
Appellant

AND THE COMMONWEALTH OF AUSTRALIA
Respondent

CP32/01

IN THE MATTER of the Judicature Amendment Act 1972

AND

IN THE MATTER of the Extradition Act 1999

BETWEEN DARREN CHVASTEK
Plaintiff

AND THE COMMONWEALTH OF AUSTRALIA
First Defendant

AND ROTORUA DISTRICT COURT
Second Defendant

Hearing: 13 November 2001

Counsel: R Vigor-Brown for Plaintiff/Appellant
D J McDonald and P V McGuire for Respondent and First Defendant and Second Defendant (which abides)

Judgment: 20 November 2001

RESERVED JUDGMENT OF PATERSON J

Solicitors:
R Vigor-Brown, Rotorua
The Crown Solicitor, Rotorua

[1] Mr Chvastek was arrested in Melbourne on 23 April 1997 after allegedly supplying to a police undercover operator 20 ounces of cocaine for a price of $96,000. He was also charged with being directly involved in the supply to a police undercover operative a couple of days earlier of one ounce of cocaine at a price of $5500. Four other persons were arrested with him.

[2] On 24 April 1997, Mr Chvastek was, without police opposition, granted bail. He had come to an arrangement with the police under which he was to act as an informer for them and pursuant to this arrangement the police did not oppose bail. Mr Chvastek failed to answer his bail on 6 May 1997. On 26 June 2001, he was arrested in this country pursuant to a warrant to arrest issued in Australia but endorsed by a District Court Judge in this country under s 41 of the Extradition Act 1999 (the Act). At a hearing on 10 August 2001, in the Rotorua District Court District Court Judge Cooper made a surrender order pursuant to s 47 of the Act. In accordance with s 46(1)(a) of the Act, he ordered that a warrant issue for the detention of Mr Chvastek in a penal institution pending his surrender to Australia or his discharge according to law.

[3] As a result of the orders made by His Honour, there are two applications before the Court. The first seeks judicial review of the judgment of 10 August 2001. The second application seeks an order pursuant to the provisions of s 123 of the Summary Proceedings Act 1957 granting further time for Mr Chvastek to state a case in an appeal from Judge Cooper’s decision.

The Judicial Review Application

[4] The allegation upon which Mr Chvastek seeks judicial review is that the interruptions by the Judge during Mr Chvastek’s counsel’s cross-examination of a police inspector were manifestly excessive as were the permitted interruptions by counsel for the plaintiff. It was then alleged that due to these manifestly excessive interruptions of both counsel for the Commonwealth of Australia (the Commonwealth) and the District Court Judge, the Judge:

(a) Misconducted himself,

(b) Failed to hear, determine, and take into account relevant matters;

(c) Displayed a reasonable likelihood of bias;

(d) Acted so that an unfair hearing resulted.

[5] In submissions Mr Vigor-Brown did not pursue the allegations of the likelihood of bias. This action was appropriate as, in my view, there could not be any suggestion on the facts of this case that there was any likelihood of bias by His Honour. The complaint which I have to consider is therefore one of procedural unfairness caused by excessive interruptions by both the District Court Judge and counsel for the Commonwealth.

[6] In order to understand Mr Chvastek’s allegations, it is necessary to detail some of the background information as contained in his statement of claim. The pleading notes that Mr Chvastek was seeking to persuade the Judge pursuant to s 8(1)(c) of the Act that a discretionary restriction on his surrender applied or, alternatively, that pursuant to s 48(4)(a)(ii) of the Act his case should be referred to the Minister for further consideration. As there had not been discovery it was submitted that it was necessary for Mr Chvastek’s counsel to cross-examine the policeman who gave evidence for the Commonwealth, to establish whether there had been breaches of an agreement under which Mr Chvastek agreed to become an informer. It is alleged that the interruptions already referred to:

(a) Forced Mr Chvastek’s counsel to show his hand when it was not appropriate in the circumstances to do so and thereby the usefulness and purpose of the cross-examination was lost;

(b) Forced the same counsel to explain to the Court in the presence of the Commonwealth officer the nature and purpose of the cross-examination when this was inappropriate;

(c) Required counsel to be more “specific” when it was not possible to do so;

(d) Meant counsel was not able to cross-examine on relevant matters;

(e) Directed counsel to move on to other areas and thereby prohibited from rounding up and concluding his questions on relevant matters;

(f) Permitted Crown counsel to make submissions during the cross-examination, which may have been relevant at the close of evidence, but were not relevant during the cross-examination;

(g) Involved the Judge entering the arena.

[7] Mr Chvastek’s position is that the Commonwealth breached the terms of the agreement with him. In particular, three co-offenders were also to be bailed. This did not happen and the consequence, in Mr Chvastek’s view, was that the underworld would then have known that because he had been bailed and the other three had not, he had become an informer for the Commonwealth. This placed his life at risk and consequently, he fled. Consequently it was the Commonwealth, and not Mr Chvastek, who caused him to fail to honour his bail and flee. It was submitted that counsel was not able to elicit from the Commonwealth officer details of this breach of agreement because of the interruptions both made by and permitted by His Honour.

[8] Many of the interruptions are, on their face, innocuous. While agreeing that this may be so, Mr Vigor-Brown’s point was that the cumulative effect of the interruptions seriously disadvantaged Mr Chvastek to the extent that there should now be a rehearing of the matter. It is therefore necessary to examine the particular interruptions.

[9] The first incident occurred when Mr Vigor-Brown asked the detective “And yet the next morning on those very serious charges he was afforded bail?” The Judge asked him the relevance of this question to the matters which he was required to determine. The reply was

“Yes sir, in relation to s 8 and the subsequent matters following the arrest, the time that has passed and oppression to the respondent in returning him to Australia. Now the question of him being an informant and the consequences of that decision to him now is relevant to a determination by the Court.”

This, in my view, was an innocuous question asked by the Judge who wished to determine the relevance of the line of questioning. It would not be immediately apparent that the question was relevant to the particular and limited matters on which the Judge had to decide under the provisions of the Act. On being advised that it was relevant, counsel was told to continue. There can be no suggestion that this interruption was not appropriate.

[10] Counsel then continued his cross-examination. He established that Mr Chvastek was on an extremely serious charge, was bailed, and probably had the advice of a lawyer. The transcript then reads:

“So my question to you was this. He’s on charges of trafficking, $96,000 worth -

THE COURT: Mr Vigor-Brown if your questions are going where I think they are going, the witness has already said that bail was not opposed as he had agreed to become a Police informer. Is that where you are getting to?

MR VIGOR-BROWN: Well I am and then there is another stage.

THE COURT: Right move onto that other stage then.”

The objection to this interruption was that His Honour did not allow the cross-examination to flow; it was necessary for counsel to explore the question of bail; he was just getting to a crucial point in his cross-examination namely, that his client was bailed on a trafficking charge of $96,000 worth of cocaine when the Judge interrupted; he wanted to explore the extraordinary arrangement whereby a joint trafficker in a deal with $96,000 obtains bail; and he signalled to the Court by the use of the words “Well I am” that he had not finished with the area, but was directed by the Court to move on.

[11] I cannot see that the interruption caused any harm or that it was unwarranted. Evidence had already been given of the trafficking of $96,000 worth of cocaine and counsel had already elicited in cross-examination that on a very serious charge his client had been bailed. Mr Chvastek’s case was that the failure of his alleged co-offenders to obtain bail indicated clearly to the underworld that he in obtaining bail had agreed to become an informer and he was therefore at personal risk. I cannot see how the interruption in any way prejudiced Mr Chvastek. Prima facie, counsel was asking repetitive questions, and this in itself is a ground for objection.

[12] Almost immediately, Mr McDonald for the Crown, objected to Mr Vigor-Brown asking “What did the Police submit to the Court that morning?” In response to the objection the Judge asked Mr Vigor-Brown to be more specific. Mr Vigor-Brown complains that he could not have been more specific because he did not have discovery and the question he was asking was crucial to an understanding of the agreement. He was wanting to know whether the police advised the Court that the other defendants would be granted bail. That submission appears to overlook the fact that it is the Court, and not the police, who determine whether bail will be granted on serious charges such as this. In any case, the interruption was not made by the Judge but by counsel who is entitled to challenge the question both on the grounds of hearsay and vagueness. The Judge took the acceptable step of asking Mr Vigor-Brown to be more specific.

[13] The next incident occurred when the Judge advised the detective “don’t answer that. Not relevant and hypothetical.” This was immediately after the detective had been asked “So when would the police then have decided to, as it were, revoke his freedom by opposing bail?” Counsel’s reply was

“Well what the witness is saying is that there would have been two incentives, firstly his freedom in the short term and secondly may be a reduced sentence. So I am seeking to clarify when that short term ended.”

The Judge responded by telling Mr Vigor-Brown that this matter was not relevant and directing him to move on to something else. The objection to this interruption is that counsel was endeavouring to establish the ambit of the agreement and that it was not hypothetical. The direction to move on prevented him from completing this line of questioning. As framed counsel’s question invited the witness to speculate. Further, I cannot see the line of questioning that Mr Vigor-Brown was prevented from completing could in any way have assisted Mr Chvastek. He had been bailed by the Court and one of the matters which presumably influenced the Judge, because he had been told of the arrangement, was that Mr Chvastek was to be an informer. The detective had said one of the benefits of being on bail would be that there would be a short term of freedom meaning obviously that Mr Chvastek would be on bail until his Court hearing. The line of questioning could not have been relevant to the matters which the Judge had to determine under the provisions of the Act. He was perfectly entitled, in my view, to raise the question of relevance and that the witness was being asked to speculate.

[14] The next interruption arose as a result of the intervention of the detective. He was obviously reluctant to give details of methodologies which the police in Victoria use with informers. The Judge directed that the detective answer this question because he was going to make a direction later concerning the publication of aspects of the evidence. The Judge was criticised because he allowed the detective, rather than Crown counsel, to raise the objection and because he asked the detective whether he objected to answering the question. This objection defies reality. The Judge responded in an entirely proper manner to an issue raised by a witness, in a way which assisted Mr Chvastek. Nothing further needs to be said on this objection.

[15] The sixth alleged unnecessary interruption was also an objection from Crown counsel. During a series of questions on possible immunity from prosecution, there were answers relating to immunity both on possible informer activities and on the charges on which Mr Chvastek had been arrested. Mr Vigor-Brown then asked a general question on immunity to which Mr McDonald objected because the detective had previously said that the position differed depending on which activity was being considered. The Judge merely said he understood Mr McDonald’s objection was correct and the matter continued from there. Mr Vigor-Brown conceded this was not a major interruption but by it the Crown could then see that any objection it made would be permitted. There is nothing in this criticism. If counsel during cross-examination frames a question in a general and ambiguous way, opposing counsel has a duty to intervene. The intervention was appropriate and dealt with properly by the Judge.

[16] When the Court resumed after lunch, Mr Vigor-Brown asked a further series of questions, including one relating to a statement which Mr Chvastek made, evidently admitting his involvement in the cocaine deal for which he was arrested. He then asked the police officer:

“He will say that the police whether it be you or another Officer, wanted that statement from him as a surety for the bosses for the police bosses so that he would adhere to the arrangement, have you any comment to make about that?”

The Judge drew Mr Vigor-Brown’s attention at this stage to s 45(5)(a) of the Act which states that the person to whom the proceedings relate is not entitled to adduce, and the Court is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which the surrender is sought. Counsel replied by pointing out that the question did not relate to the alleged selling of the cocaine but to events after the selling and, in particular, the deal entered into with the police which has been accepted, and his concerns about the outcome of that deal. Counsel submitted before me that he was endeavouring to show the extraordinary circumstances of Mr Chvastek some days after his arrest and having taken legal advice, then making a full confession. He wanted to know how that statement related to the agreement with the police and submitted it was a legitimate line of questioning. Whether Mr Vigor-Brown would have been allowed to continue with that line of questioning is not apparent from the transcript because at that stage, Mr McDonald intervened to make submissions which are the subject of the next objection. However, in my view it is easy to understand the Judge’s intervention. The question on the face of it did appear to be getting into matters which were prohibited by s 45(5)(a) of the Act. There can be no criticism for this intervention which was on the grounds of relevance.

[17] The next objection is to a question which His Honour asked after Mr McDonald had made his submissions. As noted in the previous paragraph Mr McDonald interrupted and said that over the luncheon adjournment he had read his learned friend’s submissions and noted he was relying on s 8(1)(c) of the Act. He made submissions based on Willi Wolf v The Federal Republic of Germany (CA96/01, 26 July 2001) on the relevance of Mr Vigor-Brown’s line of questioning. Any counsel is entitled to challenge relevance, particularly when as in this case, the lines of inquiry were strictly limited by the provisions of the statute. At the end of these submissions, the Judge asked counsel for precise information from areas as to how his cross-examination was relevant to the matters he had to determine. Mr Vigor-Brown responded by referring to s 8(1)(c) and, in particular, to the words “the circumstances of the case.” He submitted that these words applied to the transaction after the arrest between the police and Mr Chvastek, and how his safety would be in jeopardy following that arrangement. Mr McDonald was then permitted to continue with his submissions as to relevance. The complaint is that the Court wrongly required precise information from Mr Vigor-Brown and that having been given it, Mr McDonald was permitted to continue for some time on a point which was not really relevant to the matters which Mr Vigor-Brown wished to raise. When there are objections to relevance, a Judge is obliged to hear submissions. The Judge in this case was doing no more than that. If counsel made some submissions which may not have been particularly relevant, then that in itself is not a matter which should in any way prejudice the other party. What happened was that the Judge heard submissions on the relevance objection which is not uncommon in a trial. I do not see how it can have possibly been prejudicial.

[18] The matter upon which Mr Vigor-Brown appeared to place most reliance was what he called the ninth incident. The exchange occurred during Mr Vigor-Brown’s reply to Mr McDonald’s challenge to relevance referred to in the previous paragraph. Mr Vigor-Brown was stressing that he was endeavouring to put before the Court not personal circumstances but circumstances relating to the case. The Judge asked him how evidence of interviews in relation to admissions had a bearing on the matters which he had to consider. Mr Vigor-Brown’s reply was:

“Because the outcome and why those interviews were made and his perception of what would happen to him, bear on those matters directly Sir. To put it bluntly, he considered that as a result of what happened post arrest, his life was going to be in danger from the underworld in Australia. That was due to two reasons:

1. The matter that - the question of bail for his co-offenders and;’

2. The fact that he had and I have already put this to the witness, been asked to sell drugs.”

One of Mr Vigor-Brown’s complaints is that he was forced to show his hand in front of the policeman he was cross-examining. If Mr Vigor-Brown was concerned at disclosing his hand, he was entitled to and should have asked that the policeman be asked to leave the Court during the submissions on relevance. He cannot, in my view, use the presence of the police witness when responding to a question on relevance, as grounds for criticising the Judge. Further, there was nothing in the statement he made which took the matter any further than what had already been stated.

[19] The next interruption followed almost immediately. The Judge noted the matters mentioned by Mr Vigor-Brown were matters which Mr Chvastek wished him to take into account either under s 8(1)(c) or under s 48. He asked Mr Vigor-Brown to come to the point more directly as he did not see that a detailed inquiry as to the way in which statements were taken and that sort of thing was going to be helpful. Mr Vigor-Brown saw this comment as somewhat of a criticism of him and said he did not intend to go through how the statements were taken. He said this interruption hamstrung his cross-examination as he had not been able to ask a question for a period which spanned four pages of the transcript. Three out of twelve pages of evidence had been taken up in an exchange between himself and the Judge. He saw his question as the statement being as a surety for the police as being novel and not covered by the decision in Wolf. Mr Vigor-Brown submitted the Court was, in effect, wanting to know Mr Chvastek’s position during the course of the Commonwealth’s case. This is not a fair summary of what happened. A charitable view of the previous cross-examination is that it was not in many respects, particularly focused. This led to a question as to relevance. It is correct that in making that challenge Crown counsel may not have realised the thrust of what Mr Vigor-Brown was endeavouring to do. The objection having been made, the Judge considered the question of relevance and focused on that issue. He rightly questioned whether some of Mr Vigor-Brown’s questions were relevant. He did ask Mr Vigor-Brown to come to the point more directly and on reading the transcript, it cannot be said he was not entitled to do this. He was endeavouring to have counsel focus on the issues. This incident in itself was unobjectionable.

[20] The next matter of concern raised by Mr Vigor-Brown was the use by the detective of the word “hypothetical.” He was being cross-examined on a transaction which had been proposed after Mr Chvastek had agreed to become an informer. The proposed drug transaction did not proceed and, in answer to what Mr Chvastek’s role in that transaction would have been, the detective replied that the matter was at a preliminary stage and would have involved Mr Chvastek and he then said

“What his actual role would be at the end of the day - I mean it’s only hypothetical . . .”

The point taken on Mr Chvastek’s behalf was that the detective was latching on to a word used by the Judge himself in order to evade answering a question. This evasiveness was said to demonstrate that the cross-examination questioning was all the more relevant. With respect, I cannot see the point of this objection. The Judge had no role in it. How the use by a witness of a similar word used by a Judge can in any way indicate unfairness on behalf of the Judge is beyond comprehension. Counsel could not have objected if the Judge had told the witness he need not answer the question because it required speculation.

[21] The next interruption to which objection is taken is when the detective was advised that Mr Chvastek would say that there were only two meetings between himself and the police and not six, as alleged by the detective. At that stage the Judge said:

“So what. Mr Vigor-Brown, I take your point and I am very happy to accept that a person who agrees to act as an informant for the Police places himself in a degree of personal jeopardy and that I am sure is the case in Australia as it is in New Zealand.”

The objection to this question seems to be that it prevented counsel from cross-examining on what happened at the actual meetings. If that were the intention, the cross-examination could have proceeded on that basis. The Judge’s question did not go to the content of the meetings.

[22] The final incident complained of was when counsel asked the detective “Do you know at that stage why he made a full statement?” The Judge intervened and said “Don’t answer that please.” The objection to this interruption is that counsel was endeavouring to find out why a person with legal representation on bail and a police informant would make a full statement days after his arrest. This objection overlooks the fact that a witness cannot give evidence on what motivated another person into acting as he did. He cannot speculate. The question was not a proper one and the Judge was correct in intervening.

[23] Mr Chvastek’s case does not stop at criticising the Judge’s intervention in the cross-examination of the Commonwealth’s police witness. There is implicit criticism of the Judge because he did not intervene at all during the re-examination of this police witness although that re-examination was recorded on less than a page of the notes of evidence. One can only assume that counsel re-examining observed the normal rules of re-examination. Then, when Mr Chvastek was giving his own evidence, Mr McDonald objected when evidence was elicited concerning an alleged racist conversation between Mr Chvastek and Victorian detectives. The Court then said:

“I do not want to inhibit the respondent in telling me what he wants to tell me. If it is relevant to the matters that I have to decide and that is the limitation. I know this is an important day for him. I do not want to curtail his evidence on relevant matters.”

While several submissions were made in respect of this comment, a summary of Mr Vigor-Brown’s submissions seems to be that the Judge was being inconsistent when he said he did not want to inhibit Mr Chvastek’s story because he had been inhibiting it by the interruptions to the cross-examination of the policeman. It was submitted there should have been no interruptions so all the evidence which Mr Vigor-Brown wished to adduce was before the Court and then the Court could determine relevance. The submission adds nothing to the objection and misconceives the responsibility of a Judge to confine the evidence within acceptable bounds, particularly those which appear to be irrelevant. Another criticism was that Mr McDonald cross-examined Mr Chvastek and the record of that cross-examination occupied three and a half pages during which the Judge did not interrupt Mr McDonald. In Mr Vigor-Brown’s submission, many of Mr McDonald’s submissions were irrelevant. I do not see that Mr Chvastek’s case can be bolstered by the fact that the Judge found no reason to interrupt Mr McDonald during his cross-examination.

[24] In my view, none of the alleged incidents when considered independently, demonstrate an unfair intervention by the Judge. Many of the interventions were necessary because of the manner in which counsel had framed his questions. Therefore, unless the cumulative effect of the questioning was unfair, the claim for judicial review cannot succeed.

[25] The law relating to judicial intervention in cross-examination was referred to by the Court of Appeal in E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 where it was said in the majority judgment of Cooke P and Somers J at p 150:

“. . .as regards the separate but overlapping subject of excessive intervention by the trial Judge, of a complementary test which asks whether a belief could reasonably be formed that the person convicted may not have received a fair trial. Emphasis is placed on reasonableness to ensure that the heightened and subjective sensitivities of an individual embroiled in a dispute are not the criterion. It is recognised, too, that even under the adversary system the Judge is entitled, provided that he avoids descending into the arena, to engage in what was called by Jeffries J in McClean v Ministry of Transport (Auckland, M722/83, 16 September 1983) “a lively and active participation in the trial process”. Of course, the more lively his activity, the more wary the Judge has to be of the pitfall. We would put it that he should avoid any appearance of taking on an adversary role himself or of espousing a cause, but that he can rightly be constructive, particularly in clarifying issues or eliminating irrelevancies.”

[26] When considering the matter on a cumulative basis, I disregard the two interruptions initiated by Crown counsel and the one initiated by the police witness. The Judge could not have prevented these and responded to them in a proper manner. Many of the Judge’s interruptions were on grounds of relevance. The Judge was perfectly entitled to ask the questions which he posed. He was also entitled to prevent speculative answers being given and to prevent repetitive cross-examination. The cross-examination was not rendered ineffective because counsel was forced to explain Mr Chvastek’s position in front of the detective. If I am wrong in this conclusion the reason that it was ineffective was because counsel did not ask that the police witness be excluded from the Court while the matter was discussed further with the Judge. In these comments, I have covered many of the specific allegations made in the statement of claim (see para 6 above). It is sufficient to conclude by saying that if counsel was unable to cross-examine on relevant matters, this was because of the manner in which counsel cross-examined. Nothing the Judge did prevented this. The Judge did not enter the arena in a manner in which he was not entitled to do and it was quite appropriate for him to hear submissions on relevance during the cross-examination. Mr Chvastek has not come close to establishing that there are grounds for a judicial review and this application will therefore be dismissed.

The s 123 application

[27] The background to the application under s 123 of the Summary Proceedings Act is that after the Judge gave judgment on 10 August 2001, Mr Chvastek on 22 August 2001 filed a notice of appeal. Section 68 of the Act gave him the right to appeal “by way of case stated for the opinion of the High Court on a question of law only.” The appeal was lodged within time. The Act provides that the provisions of the Summary Proceedings Act and in particular, s 107 of that Act, apply to such case stated. In particular, s 107(3) “requires that the appellant shall within 14 days after the filing of the notice of appeal or within such further time as the District Court Judge may in his or her discretion allow, state in writing a case in the prescribed form.” Mr Chvastek did not comply with this requirement.

[28] On 14 September 2001, Judge Cooper considered two applications. The first was an application by the Commonwealth to certify that the appeal by way of case stated that had been lodged had not been prosecuted. Secondly, there was an application by the intended appellant for an extension of time to file his case on appeal. Mr Chvastek’s application failed because the Judge accepted that an intended appellant seeking an extension of time for filing the case on appeal must make the application within a 14 day period prescribed by s 107(3) of the Summary Proceedings Act. The application was not made within that time. The Judge did not certify that the appeal had not been prosecuted because of the indication that the appellant intended to apply to this Court under s 123 of the Summary Proceedings Act for an extension of time to file the case on appeal.

[29] The application seeking an order that further time be granted notes that it is on the grounds that it is in the interests of justice to do so and “contained in the affidavit of the appellant’s solicitor R Vigor-Brown to be sworn and filed herein.” Mr Vigor-Brown has not elected to file an affidavit.

[30] Section 123(1) of the Summary Proceedings Act states:

“123 Powers of Judge of High Court as to extension of time

(1) Any Judge of the High Court may, on the application of the appellant or intending appellant, extend any time prescribed or allowed under this Part of this Act for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.”

[31] In a brief written submission counsel for Mr Chvastek after referring to several cases, submitted:

“(a) The Court has an inherent jurisdiction to extend time;

(b) That a miscarriage of justice could occur if the appeal was not prosecuted;

(c) There is a real likelihood that the appeal would succeed;

(d) It is in the interests of justice that time be extended.”

[32] I note that the Court does not have inherent jurisdiction to extend time. It has specific statutory jurisdiction to do so under s 123.

[33] The criteria on which Courts consider such applications was noted in Cleggs Ltd v Dept of Internal Affairs (HC Auckland M1032/84, 5 August 1984, Thorp J). For the purposes of this case they are:

(a) The onus is on Mr Chvastek to show that there exist special circumstances why the decision should not stand;

(b) The discretion was given essentially for the purpose of avoiding miscarriages of justice;

(c) All the circumstances of this case should be considered in deciding whether sufficient grounds had been shown;

(d) One of the matters which must be established was that there was a real likelihood that an appeal would succeed if leave were granted.

Some authorities go so far as saying that the likelihood must be such that the applicant can establish the probability of success.

[34] The difficulty I have in this case is that there has been no evidence filed in support of the application. The record of the hearing before the District Court is relied upon. There has been no explanation of the delay apart from indications from the Bar that it was counsel’s oversight that the case on appeal was not filed on time. In an analogous application under s 107(10) of the Summary Proceedings Act it was held in Hyde v Direen (3 CNRZ 370) that an extension will normally not be granted where there is an inexplicable delay in following the proceedings laid down in s 107. This unexplained delay is of some concern but, in my view, is not decisive. If it were necessary to grant the application to avoid a miscarriage of justice, the delay must assume lesser importance.

[35] In the absence of evidence, it is very difficult if not almost impossible, to assess the other criteria of Clegg and in particular, for Mr Chvastek to discharge the obligation to show that special circumstances exist, that there is a real likelihood that the appeal would succeed, and that a miscarriage of justice would occur if the appeal did not proceed. There is a draft case stated on the file which suggests that there may be two questions of law at issue. In fairness to Mr Chvastek I will consider each of these grounds.

[36] The first is that His Honour was wrong in not taking into account for the purposes of s 8(1)(c) of the Act an alleged breach by the Commonwealth of an agreement under which Mr Chvastek’s co-accused were to be bailed. The consequence of this breach was that the people within the Melbourne underworld would consider him to be an informer and his life would therefore be in danger. Consequently, he fled the jurisdiction. In my view, there is little likelihood of this point succeeding. The Wolf case already referred to makes it clear that if a person flees the jurisdiction of another country, that person does not qualify for consideration under the provisions of s 8(1)(c) of the Act. However, Mr Vigor-Brown’s submission was a little more subtle. It was, in effect, that Mr Chvastek had fled, not on his own volition, but because of a breach by the Commonwealth of a term of its agreement with him effectively forced him to flee for his own safety. This matter was not expressly referred to by the Judge in his decision. However, Mr Chvastek gave evidence of that concern although it is noted his evidence at the hearing differed considerably from the reason he gave for fleeing when first spoken to by the police. There can be no doubt that the delay in commencement of the extradition proceedings was brought about by Mr Chvastek fleeing Australia and concealing his whereabouts in New Zealand. This was an action which he himself took. He may have been motivated by several reasons but the reason for the delay is his fleeing Australia. The likelihood of Mr Chvastek succeeding on this point on appeal would be particularly remote. The Judge correctly applied the law on the facts in front of him.

[37] The second point, and one perhaps with more substance, arises from the second alleged error of law in the draft case stated. The question as posed was whether the District Court Judge was correct in holding that the cumulative circumstances of the appellant did not come close to fulfilling the terms required for him to refer the matter to the Minister under the provisions of s 48(4)(a)(ii) of the Act.

[38] The two matters upon which Mr Chvastek relied were his personal safety because of the knowledge that he was an informer, and secondly, the relationship with a Ms Walker. The relationship with Ms Walker pre-dates Mr Chvastek fleeing the Australian jurisdiction. It could not have been a factor. The issue therefore is whether there were compelling or extraordinary circumstances arising from Mr Chvastek agreeing to become an informer which would have required His Honour to have considered exercising a discretion and referring those circumstances to the Minister under the provisions of s 48(4)(a)(ii) of the Act. His Honour considered the circumstances and acknowledged that a person who co-operates with the police to the point of being willing to act as an informer obviously does place himself at some personal risk. He noted this was a risk which the authorities simply had to manage while the defendant was in custody. There is not an error of law involved on this point. The Judge considered the two matters put forward by Mr Vigor-Brown on behalf of Mr Chvastek and concluded that neither amounted to compelling or extraordinary circumstances and taken together, they still did not come close to fulfilling that test. There is virtually no likelihood, in my view, that Mr Chvastek could establish that there was either a point of law in this point or that if there is such a point, there was an error committed by the Judge.

[39] For these reasons I have concluded that Mr Chvastek has not made out a case for being given leave under s 123 of the Summary Proceedings Act.

Result

[40] The application for judicial review is dismissed.

[41] The application for leave under s 123 of the Summary Proceedings Act to file a case stated out of time is also dismissed.

[42] The matter should now be referred back to the District Court so the Judge may certify that the appeal by way of case stated has not been prosecuted.