wiles nceu d IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 192 of 1988 ee eee "GENERAL DIVISION BETWEEN: MASSIMO COLETTI - ' Appellant AND: DIRECTOR OF PUBLIC PROSECUTIONS Respondent CORAM: Davies J. DATE: 26 February 1988 PLACE: Sydney REASONS FOR JUDGMENT EX TEMPORE This is a review of a decision of Mr K.P. Quinn, Stipendiary Magistrate, made under s.25 of the Extradition (Commonwealth Countries) Act 1966 (Cth)("the Act"). The appeal is brought under s.28 of the Act. Sub-section (3) provides:- "The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for the evidence given on the making of the order may be given on or in connexion with the review." Part III of the Act, in which these provisions appear, deals with extradition to and from New Zealand. This part of the Act does not require that there be proof of a prima facie case that the accused - or "fugitive" as he is called in the Act - has committed the offence for which the extradition to New Zealand is sought. aR oe <a, = ee oar 2. As to compliance with the matters of a technical nature which the Act specifies - matters such as the issue in New Zealand by a judge or other duly authorized person of a warrant for the arrest of the fugitive - the onus of proof thereof is, I take it, on the party seeking the extradition. However, that 1s not the only matter which may be raised under the part. Section 27 provides that the fugitive may show reasons such as the trivial nature of the alleged offence or that the accusation against the fugitive was not made in good faith or that the passage of time since the commission of the offence has been unduly long and otherwise why it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand. I take the words "any other reason" in s.27 to encompass every reason which, as a matter of logical rationality, may show it to be unjust or oppressive or too severe a punishment to extradite the fugitive to New Zealand. I take those words to encompass the ground that the fugitive would have no case to answer if extradited to New Zealand. In Narain v. The Director of Public Prosecutions and Others (1987) 70 A.L.R. 697, this issue was considered. Wilcox and Jackson JJ. at p.710-711 said:- "In Aston v Irvine (1955) 92 CLR 353 at 366 the High Court of Australia referred to 1t being 'unjust or oppressive to return the accused to Adelaide if the facts as they are alleged or appear make it clear that there was no indictable conspiracy'. [In O'Donnell v Heslop [1910] VLR 162, Madden CJ (at 170) spoke of a situation where the charge was 'wholly misconceived' and ae ye a = aye = ee ee rs Le 3. 'cannot possibly be right - eg, where an alibi is proved'. Hodges J (at 174) referred to 'cases of an exceptional character in which the defendant is able so to satisfy the magistrate or judge by proving almost to a demonstration that it was not possible for him to have committed.the offence charged'. Cussens J accepted these illustrations but added (at 176) '... it was never intended that a defendant should be entitled to call for an exercise of discretion in his favour simply by proving facts which would amount to an ordinary defence to the charge at the trial, if the justice or the judge is satisfied that the prosecution 1s bona fide challenging those facts'. In Re Alstergren and Nosworthy [1947] VLR 23, similar Tanguage was used, Lowe J saying (at 29-30) that '1t 1s not unjust or oppressive to return the defendant unless the evidence before the justice, for example, either demonstrates that the defendant has a complete defence to the charge or that the whole evidence which can be adduced by the prosecutor is before the justice and is such that no magistrate could on it properly find a case against the defendant fit to be sent for trial.'. See also per Martin J (at 34) and Fullagar J (at 38). A similar view has been taken in New South Wales - See Ex parte Klumper (1966) 86 WN (Pt 1)(NSW) 142 at 147; Walker v Duncan [1975] 1 NSWLR 106 at 110 - by the Full Court of the Supreme Court of South Australia ~ see Skewes v Veen Huizen (1978) 22 ALR 101 at 111-2 - and by Mason J in the High Court - see Ammann v Wegener (1972) 47 ALUR 65 at 67. The test developed in these cases has been applied to s 27 of the Extradition (Commonwealth Countries) Act in Willoughby v Eland (59 ALR) at 152 and un Bates v McDonald (1985) 2 NSWLR) at 95, 100, 102, in our opinion rightly." As was made clear in Narain's case, the onus is on the fugitive to establish the matters raised under s.27. Because of the differing issues and onuses which may arise in the circumstances of a particular case, it may often be desirable - and I think it would have been desirable in the present case - for the case to be split: the technical matters to be dealt with first, with the onus on the Crown; then for the matters under S.27 to be considered in the light that the onus is on the fugitive to establish them. a B my werner ey tenn en ee Score - A - 4 ' w batt ~ ome tg , Me eer e nee Meee ae at Se er rg I ng cn ass ae . ane 4. In the present case, by agreement of counsel, Mr Roberts of counsel, who appeared for the Director of Public Prosecutions, presented his case first. Although there was no attack on the matters of a technical nature which were proved by the evidence adduced by Mr Roberts, Mr Robertson of counsel, who appeared for the fugitive, took the opportunity to cross-examine Detective K.W. Jones of the New Zealand Police and sought to obtain from him the names of all the witnesses whose evidence would be relied upon to support the prosecution of the fugitive in New Zealand and the substance of the evidence that they would give. I disallowed Mr Robertson's questions for to permit that course would have been to subvert the purpose of Part III of the Act, which is to dispense with the consideration by an Australian magistrate or court of the question whether there has been a Prima facie case for extradition. Once the fugitive has entered upon his case and raises under s.27 a prima facie case showing that the prosecution of the fugitive was not in good faith or was otherwise without merit and bound to fail, it could become appropriate for those supporting the extradition to New Zealand to disclose the substance of the evidence to be put in support of the charge. In doing so, that material would be brought in answer to the matters raised under s.27. However, that point did not arise in the present appeal. The evidence before the Court satisfies me of the issue in New Zealand of an appropriate warrant of arrest and of the other matters of a technical nature which must be proved. The charge against the fugitive arises under s.6(2A) of the Misuse of Drugs Act 1975 of New Zealand and is a charge of conspiring to supply a m4 saan enema' rae ~- ee en — ee a ee 5. class B controlled drug, in the present case cocaine. The evidence before the Court shows that the subject of the charge was not a trivial matter and that some of the alleged ° co-conspirators of the fugitive have already been convicted in New Zealand of the offence and have been imprisoned. Mr Robertson submitted that the material which 1s before the Court, that is to say the depositions or statements arising from those prosecutions in New Zealand, would not, on their own, be sufficient to make a prima facie case against the fugitive. That may be so though I make no ruling upon the point. However, as the evidence of Detective Jones makes clear, those depositions and statements do not contain the whole of the evidence that 1t is antended to adduce against the fugitive should he be returned to New Zealand. Insofar as they go, the depositions and statements support the particulars of the crime which have been supplied to the fugitive and show that the prosecution is bona fide and that there is a significant matter to be dealt with 1f the fugitive is extradited to New Zealand. In my opinion, it has not been shown on any basis that it would be unjust, oppressive or too severe a punishment to surrender the fugatiave. I shall therefore affirm the order of the learned magistrate. I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr so Quis. Davies. Associate: Date: aX OMS. ae arate a anaes Counsel for the appellant: Solicitor for the appellant: ' Counsel for the respondent: Solicitor for the respondent: Date of hearing: Mr T.F. Robertson Mr W.P. O'Brien Mr P. Roberts Director of Public Prosecutions 26 February 1988 ee ay rn ae a wr emwiente ae ne ae ee eee