ADMINISTRATIVE LAW - extradition - taking by magistrate of evidence required to secure extradition of fugitive to Australia - nature of proceedings - whether cross~examination can or should be permitted - whether magistrate an "officer of the Commonwealth" for this purpose. Administrative Decisions (Judicial Review) Act 1977 3.16 Judiciary Act 1903 s.39B Extradition (Foreign States) Act 1966 ss.27 and 27A, Form 9. ROBERT TRIMBOLE v JOHN DUGAN S.M. and THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA No. VG 285/1984 Woodward J. Melbourne 2 November 1984 N_ THE COURT OF AUS IA R S' v4 No. VG 285/1984 GENERAL DIVISION wwewww BETWEEN: (¢) T E Applicant and OHN DUGAN S.M. and NEY -GEN L FO COMMONWEALTH OF AUSTRALIA Respondents ORDER JUDGE MAKING ORDER : Woodward J. DATE OF ORDER 2 November 1984 WHERE MADE Melbourne THE COURT ORDERS THAT: 1. The application for an order to review and the notice of motion for an injunction be dismissed with costs. 2. The interim injunction previously granted be dissolved. IN THE OURT AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 285/1984 ) G IVISION ) BETWEEN : ROBERT TRIMBOLE Applicant and JOHN DUGAN S.M. and THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Respondents JUDGE: Woodward J. DATE: 2 November 1984 ~-TEMPORE JUDGMENT There are two matters before the court. The first is an application for an order to review pursuant to the Administrative Decisions (Judicial Review) Act 1977. The second is a notice of motion for an injunction pursuant to section 39B of the Judiciary Act 1903. In its original form that notice of motion also sought awrit of prohibition, but that claim has been abandoned in the course of argument. Each of these proceedings was commenced today, was by consent made returnable today and is to be finally disposed of at this hearing. The relief which is sought takes the form of injunctions to prevent Mr Dugan, Stipendiary Magistrate, from certifying, or transmitting to the Attorney-General for the Commonwealth, evidence taken pursuant to section 27A of the Extradition (Foreign States) Act 1966, without first giving counsel for the person concerned, Mr Robert Trimbole, the right to recall and cross-examine witnesses who have given evidence before Mr Dugan. That, as I say, is the substance of the relief sought. There is evidence before me of the issue of a number of warrants for the arrest of Mr Trimbole. Those warrants are some 10 in number. They relate to the murder of three people and also to serious allegations with regard to drug trafficking. It seems that Mr Trimbole was arrested in Ireland on 26 October pursuant to a provisional warrant issued under the Irish Extradition Act of 1965. At first, the evidence indicates, the person arrested denied that he was Robert Trimbole; but as these proceedings have taken their course today, it has been conceded by counsel that the person who is under arrest in Dublin under the name of Robert Trimbole is in fact identical with the Robert Trimbole from whom counsel assure me they have obtained their instructions for the purposes of this hearing. Section 27A of the Extradition Act provides: ("1) Where a warrant has been issued in Australia for the apprehension of a person accused of an extraditable crime .... and that person is, or is suspected of being, in a foreign state, the Attorney-General may by notice in writing in accordance with Form 9 .... authorise a magistrate to take evidence in Australia for transmission to that state for use in any proceedings in that state for the surrender of the person to Australia. (2) Upon receipt of the notice the magistrate shall (a) take the evidence on oath or affirmation of each witness appearing before him to give evidence in relation to the matter; (b) cause the evidence to be reduced to writing and certify at the end of that writing that the evidence was taken by him; and (c) cause the writing so certified to be sent to the Attorney-General." Form 9, which has been followed by the Attorney-General in the present case, concludes with the words: "I hereby authorise you to take in accordance with section 27A of the Extradition (Foreign States) Act such evidence in Australia as is produced to you for transmission to (Cthe Republic of Treland3 for use in any proceedings in Cthe Republic of Ireland] for the surrender of the said fugitive to Australia." In this matter, counsel sought to appear before Mr Dugan, Stipendiary Magistrate, as he came towards the conclusion of his task, and asked him for leave to appear so that those persons who had already given evidence could be recalled and cross-examined. Mr Dugan made a ruling on that application in the following terms: "Well, my understanding of my commission is quite clear. I see mnyself in these proceedings as nothing more than a recorder of proceedings in the matters put before me in this and other places and it is my function as Particularly made clear by section 27A - - - Chis Worship then went on to read that section and he continued] I would have thought, and I am confident in my thoughts, that having heard the matters that have been put before me this afternoon from the bar table I have no right to allow you, Mr Hore-Lacy, to appear for the man who instructs you." It is that ruling which is challenged before me, and in each case the application is said to depend upon the establishment of errors of law, expressed in the following terms: "Firstly, that in refusing to allow examination by the applicant of witnesses, the magistrate was either not taking the evidence of those witnesses or was not taking that evidence properly within the meaning of section 27A of the Extradition Act and, secondly, that in holding that he had no power to allow the examination by the applicant of those witnesses the magistrate failed to recognise that he had a discretion." The resolution of these actions depends upon a finding as to the proper role of the magistrate under section 27A of the Extradition (Foreign States) Act 1966. Was his Worship right in saying that he was a mere recorder of evidence? It is argued, on behalf of the applicant, not that there is an inherent right to cross-examine in all cases such as this, but that the Act requires that the magistrate should receive all the evidence which is available to him, and it is said that he cannot do that unless he allows questions to be asked in cross-examination. It is also suggested that the quality of the evidence is an important matter which the magistrate should take into account, and that he should be made aware, and the record should disclose, whether a witness is, for example, a police informant or an accomplice, or whether the witness has had previous convictions, or is in truth giving evidence which is only hearsay although it may appear that he is giving direct evidence. A number of cases have been cited to me about the role of magistrates in cases such as this and, in my view, although they are based upon somewhat differently worded legislation and on the particular facts of those cases, this range of decisions from a number of different jurisdictions all have common threads running through them. Those common threads are, firstly, that it is not the task of the magistrate to act in any judicial way to determine how much of the evidence he is hearing may ultimately be admissible in other proceedings. Secondly, he is not concerned with the guilt or innocence of the person whose extradition is sought. Thus he has no power to make a decision of any sort, but is simply required to record, in proper fashion, the evidence which is brought before him, and to authenticate it for extradition purposes. The cases to which I refer in particular are the decision of the Divisional Court of the Queens Bench Division in the matter of Guiseppi_ Bruscino, which is an unreported judgment of 31 January 1980, a New Zealand decision Jn re Campbell reported in 1935 NZLR 354, another English decision of The Queen v e Governor of rixton Prison 1961 1 WLR 464, and a Canadian decision of Vardy v Scott (1976) 66 DLR 431 at 440 to 441. Finally, there is the High Court decision of The Queen v Wilson ex p. Witness T. (1976) 135 CLR 179, and I refer in particular to the wording used in that decision when the then Chief Justice, Sir Garfield Barwick, said at p.185: "The magistrate who takes such evidence exercises no more than a recording function. He decides no matter of right and makes no ruling as to admissibility of evidence." That decision concerned section 27 of the Extradition (Foreign States) Act 1966 and it is important to note the contrast to be drawn between that section and section 27A, because' section 27, which is concerned with the taking of evidence in Australia in respect of a criminal matter which is to be tried in some other foreign state, requires in particular, in sub-paragraph 2, that the magistrate shall "take the evidence of each witness appearing before him to give evidence in relation to the matter in like manner as if the witness were giving evidence ona charge against a person for an indictabie offence against the law in force in the State or Territory of which he is a Magistrate". The absence of any such provision from section 27A I find particularly significant, as also, in my view, are the words in Form 9 which require the magistrate to take such evidence "as is produced to you for transmission" to the foreign state concerned. I believe that the correct view of section 27A is that under it the magistrate is performing a purely ministerial function and he would be exceeding his jurisdiction if he were to allow cross-examination of witnesses going to the merits of the matter and touching upon the guilt or innocence of the person to be extradited. I do not think it is possible to overcome a legislative intention to rule out cross-examination in such cases simply by postulating a requirement to take all the evidence which is available. I believe, therefore, that the magistrate was correct in his finding that Mr Hore-Lacy had no right to appear before him and cross-examine witnesses generally. The only issue which has caused me any concern in this matter is whether the magistrate could have a residual discretion, in taking evidence under section 27A of the Act, to allow cross-examination in a special case and perhaps on particular issues. It is argued that he is the master of his own procedure and that he ought, in an appropriate case, to allow controlled cross-examination to take place. I think that it is a pity that the wording of the Act does not resolve that issue with complete clarity. In my view the Act does not provide for cross-examination in any circumstances. But even if I am wrong about that, I believe that it would not have been appropriate for the magistrate in this case to exercise his discretion to permit any such cross-examination. I make that finding because I. think it is relevant to the question of the discretion which I would have had to exercise under section 16 of the Administrative Decisions (Judicial Review) Act 1977 if I had reached the conclusion that the magistrate was wrong in law in finding that he had no discretion. If I am wrong in believing that the magistrate has no discretion to permit cross-examination, then I would certainly say that it would be a rare case in which it would be appropriate to allow it. Having regard to (a) the nature of the offences for which the warrants have been issued, (b) the requirement under the law of Ireland as_ proved before me that the proceedings must be concluded within 18 days of the arrest of the person to be extradited or else, as the Irish Extradiction Act in section 27, sub-section 7 requires, that person must be freed, and (c) the fact that there was nothing before the magistrate or before me to indicate any particular area of cross-examination that instructions had been given about, and that in that situation it is only possible to infer that there was an intention to cross-examine generally on issues of guilt and innocence - I would hold that this is not an appropriate case in which to permit cross~-examination and, in the exercise of my discretion under the Judicial Review Act 1977, I would refuse an order. For all these reasons I would dismiss both the notice of motion under the Judiciary Act 1903 and the application for review under the Administrative Decisions (Judicial Review) Act 1977. There is, however, a further reason for dismissing the notice of motion under the Judiciary Act 1903 and that is that I am satisfied that the magistrate in this case is not an "officer of the Commonwealth" within the meaning of that Act. In my view an officer of the Commonwealth has to be a person occupying an identifiable office. As was said by Isaacs J in The King v Murray, (1916) 22 CLR 437 at 452 that phrase "connotes an 'office' of some conceivable tenure, and connotes an appointment, and usually a salary". In this case all that we have is an authorisation by the Commonwealth Attorney-General to a person who is clearly a State officer, in the ordinarily accepted meaning of language, and I do not believe that the granting of an authorisation to perform a particular act can convert an officer of a State into an officer of the Commonwealth. For that reason also I would dismiss the notice of motion under the Judiciary Act. There is one further point that I perhaps should advert to in passing, and that is that a study of the Extradition Act 1965 of the Republic of Ireland and of the evidence before me in the form of a telex from Dublin addressed to the Irish Embassy in Canberra, leaves some uncertainty as to the precise use to which an Irish court might put the material which is required to be certified by Mr Dugan and transmitted to the Commonwealth Attorney-General. But, in view of my findings, nothing turns upon that particular point. I should also have said, in referring to -~ 10 - the action under the Administrative Decisions (Judicial Review) Act 1977 that it was conceded on behalf of the respondents that the decision in this case is one to which the Act applies. I think I have now covered all the points I need to cover. Both the application and the notice of motion are dismissed. The order will go with costs against the applicant and, for the sake of clarity, I say expressly that Iam also ordering the dissolution of the injunction which I granted on the ex parte application of the applicant yesterday afternoon, which required Mr Dugan not to certify the documents concerned or transmit them to the Attorney-General. I certify that this and the ten (10) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward Assgciate Dated: 2 November 1984