JUDGMENT No.269.7 82> IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD. G298 and G299 of 1987 ) ) GENERAL DIVISION BETWEEN: WILLIAM BRUCE TARDREW Applicant DIRECTOR OF PUBLIC PROSECUTIONS Respondent CORRIGENODA BY Amendments to the judgment of his Honour Mr. Justice Spender of 13 May 1988:- page 4 line 23 should read Criminal Code Act 1974 of Papua New Guinea (No.78 of 1974). page 6 line 25 'approprite' should read 'appropriate' page 8 lines 33, 34 citation should read 'Criminal Code Act 1974 of Papua New Guinea'. Delete '(Ch. No.262)' page 13 line 9 delete 'to'. page 19 line 7 delete 'that' page 25 line 25 citation should read 'the Supreme Court Act 1975 of Papua New Guinea (No.104 of 1975)' 14 May 1988 Gillian Lyons Associate to Spender J. JUDG... oe CO* ABE CATCHWORDS EXTRADITION - application for review of magistrate's decision - whether extradition to Papua New Guinea "unjust or oppressive" because of alleged breach of undertaking by prosecution not to appeal primary judge's sentence and other matters ~- whether the appellant had 'already undergone the punishment provided by the laws of Papua New Guinea' prior to issue of extradition warrant. Extradition (Commonwealth Countries) Act 1966 (Cth.) ss.10(4), Administrative Decisions (Judicial Review) Act 1977 (Cth.) rimina ode Ac No. o Papua New Guinea ss.14(6), 462, tC. Supreme Court Act (No.104 of 1975) Papua New Guinea s.24(2). WILLIAM BRUCE TARDREW V. DIRECTOR OF PUBLIC PROSECUTIONS QLD. NOS. G298 and G299 of 1987 SPENDER J. . 0 BRISBANE TS MAY, 1988. " IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD. G298 and G299 of 1987 ) ) GENERAL DIVISION BETWEEN: WILLIAM BRUCE TARDREW Applicant AND: DIRECTOR OF PUBLIC PROSECUTIONS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 13 MAY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The applications be dismissed with costs. NOTE: Settlement and entry of orders 1s dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD. G298 and G299 of 1987 ) GENERAL DIVISION ) BETWEEN: WILLIAM BRUCE TARDREW Applicant AND: DIRECTOR OF PUBLIC PROSECUTIONS Respondent SPENDER J. BRISBANE 13 MAY, 1988. REASONS FOR JUDGMENT This is an application seeking to review the decision of Mr. Page, a Stipendiary Magistrate, made on 22 December 1987 under s.16 of the Extradition (Commonwealth Countries) Act 1966, ('the Act'), by which he ordered the applicant be committed to Her Majesty's Prison at Brisbane to await the warrant of the Attorney-General for his extradition to the State of Papua & New Guinea. The application is made pursuant to s.17 of that Act, which allows review by the Federal Court of Australia of the decision of the magistrate upon the grounds provided by s.16 of the Act. In the alternative, relief is sought under the Administrative Decisions (Judicial Review) Act 1977. Counsel for the applicant relies essentially upon two grounds. Pirst, by s.16 of the Act, that the magistrate erred in law in not being satisfied that it was unjust or oppressive or too severe a punishment to surrender the applicant in accordance with the Act; alternatively, by s.10(4) that the magistrate had erred in being satisfied that Mr. Tardrew was a person liable to be surrendered under the Act by finding that the applicant was not a person who had already undergone the punishment for the offence as provided by the law of Papua New Guinea. The first ground has three aspects. They are, first, Mr. Tardrew's physical health both at the time of his original sentence and at present; secondly, the gaol conditions in Papua New Guinea and their effect upon the health of the applicant; and thirdly, allegations of impropriety on behalf of the State prosecution. The allegation is that the applicant's guilty plea in the primary hearing was the result of an inducement by the prosecution, in the form of an undertaking to adopt a neutral stance on sentence. This undertaking was allegedly made at a pre-trial meeting. It was said that, in breach of this undertaking, the prosecution subsequently appealed to the Supreme Court for a higher sentence. The appeal was successful. It is necessary to refer to the facts in some detail. _ William Bruce Tardrew was Operations Manager of the National Computer Centre, which printed Government cheques for the Department of Finance of Papua New Guinea. Another man, Mark Payne, was a Senior Technical Manager of the Centre until November, 1984. In October 1984, one of these two men stole four numbered Government cheque forms from the National Computer Centre. In January 1985, Mark Payne, using a false driver's licence opened a cheque account at the Australia & New Zealand Bank, Waigani Branch, in the name of Ronald T. Smith, for the purpose of paying in the forged cheques at a later date. Tardrew then typed in the name of Ronald T. Smith as payee on the stolen cheques for the amounts of K26,887.41, K13,211.32, K20,012.00 and K22,092.00 respectively, dated them 7 and 8 February 1985, and forged the signatures of the two authorised Government signatories. Then he deposited the four cheques into the Ronald T. Smith bank account on 22 February and 19 March 1985. Payne had left Papua New Guinea in January 1985. On 18 March 1985, Mr. Tardrew used a false driving licence to open two accounts in the name of Bob Moore, one at the Bank of South Pacific, Boroko, and one at Westpac Banking Corporation, Boroko. Into these accounts were paid cheques drawn on the Ronald T. Smith account for K11,000.00 and K10,500.00. He also drew two cash cheques for K3500 and K4200 on the Ronald T. Smith account, anda cash cheque for KkK3900 on the Bob Moore account at Bank of South Pacific . On 22 March 1985, Detective Inspector Smythe, the officer-in-charge at the National Serious Crime Squad, Royal P.N.G. Constabulary, was informed that two of the stolen cheques had been deposited in the account of a Ronald T. Smith, and he began his investigations. Mr. Tardrew had left Papua New Guinea on 20 March 1985 and was living in Australia. On 3 April 1985, he sent a_ letter dated 2 April 1985 to Inspector Smythe, enclosing a draft for K10,316 "...being restitution of funds fraudulently obtained from the Department of Finance ...". The letter was unsigned, and sent "...0n behalf of R. Smith, B. Moore". Immediately upon receipt of this letter, the remaining bank accounts were frozen, which had the consequence that all of the moneys was eventually recovered. On 19 April 1985, Mr. Tardrew was arrested 1n Brisbane pursuant to a warrant issued from New Guinea. An order was made for his extradition in the Brisbane Magistrates Court by Mr. C. Evans, S.M. on 30 April 1985. Mr. Tardrew did not appeal this order and was accordingly extradited to Papua New Guinea on 20 November 1985. There he was charged on 8 counts, 4 of forgery and 4 of uttering false documents for each of the _ forged Department of Finance cheques under ss.462 and 463 of the Criminal Code of Papua New Guinea. He was committed for trial by Mr. K. Lofena, D.C.M., at Port Moresby on 21 November 1985, and his trial was set down for 17 December 1985 before Mr. Justice Kapi, D.C.J., of the National Court, Waigani. His co-accused, Mark Payne, had committed suicide in prison in Australia prior to the first extradition hearing. Soon afterwards, on 27 November 1985, a meeting took place at the offices of Mr. Tardrew's defence counsel, Mr. Peter Steele. This quite unusual meeting was attended by four persons: the applicant; the Public Prosecutor, Mr. Peter Boyce; the investigating police officer, Mr. Howard Smythe; and Mr. Steele. This meeting was called to ascertain the prosecution's attitude to submissions as to sentence in the event of a guilty plea. It is alleged that, during this meeting, various undertakings were made to the effect that the State would take a neutral stance with regard to sentence if a plea of guilty was entered. Senior counsel for the applicant submits that the later appeal to the Supreme Court on the leniency of the sentence amounted to a breach of this undertaking and an act of impropriety on behalf of the prosecution. After the meeting, a letter dated 2 December 1985 was sent by Ere I. Kariko, the Acting Public Prosecutor, and who was Mr. Boyce's superior, to Mr. Steele, expressed to be in confirmation of the agreements reached at the meeting of 27 November 1985. It commences:-— "I refer to our recent meeting and the various matters raised therein. I now confirm the following." The letter said of character evidence produced by way of affidavit, that "...(it) will not be challenged. It is conceded, the Accused is of good character." As to medical evidence, it ",..can also be produced by way of affidavit ...". The next paragraph says "The state will maintain a neutral stance with regard to any question of the appropriate sentence", but then goes on to say "The State does not concede that the offence is one which would warrant other than a term of imprisonment. However the State won't actually press for a custodial sentence...", and continues "...the state will if asked by the court, of necessity, put forward the view that the offences in all the circumstances require a custodial sentence. No submissions will be made to an actual term." The letter also advises that "...the state would most likely appeal any sentence such as a simple good behaviour bond. However, a good behaviour bond, coupled with a substantial fine and perhaps some form of suspended sentence may be considered differently ...". In conclusion, Mr. Kariko says "Please understand that the contents of this are in no way to be interpreted as promises or concessions by this office and are made on a without prejudice basis entirely." On 17 December 1985, the applicant appeared before Mr. Justice Kapi and pleaded guilty. Sentence was pronounced on 19 December 1985. During the hearing, the essential contest between Mr. Boyce and Mr. Steele was that of approprite sentence, with argument centering around the health problems of Mr. Tardrew. Mr. Steele made submissions as to the good character of the defendant, the fact that there had been full restitution, and the fact that he suffered peculiar physical problems. He submitted that any gaol term would be excessively severe on the accused because of the unavailability of proper medical treatment or supervision and because of the difficulty experienced by the defendant in performing normal daily activities due to pain and reduced mobility. Mr. Steele submitted that a fine or suspended sentence would be more appropriate in this particular case. Mr. Boyce pointed out the seriousness of the offence and argued that there was no evidence to prove that the accused would suffer excessively if a custodial sentence were imposed. Kapi J. reserved judgment for two days and on 19 December 1985 sentenced Mr. Tardrew to five years imprisonment with light labour for each count except for the fifth and sixth counts, for which he received three years, to be served concurrently. This sentence was given ain light of "...the serious nature of the offences and the need to protect the public interest and deter similar acts by others." However, his Honour went on to say that the special considerations to which he had referred earlier should be taken into account in this case:- "I have taken into consideration circumstances which are in your favour. (1) you have pleaded guilty, (2) there has been much publicity ... (3) all the monies involved have been refunded. I note specially you made arrangements for the payment of the balance of the monies to the Government earlier this year even before charges were laid against you for these offences. You have had an excellent character and you have contributed much to the sporting reputation of this country." His Honour then turned to the question of physical health: "I take particular note of your physical health. It has been submitted by your lawyer that you should not receive any custodial sentence in this country. The thrust of his submission was that, as there is no Orthopaedic Surgeon in PNG, you should get a non-custodial sentence to enable you to go to Australia to receive this treatment. Whilst I consider your physical health an important consideration and the treatment you did receive in sentence (sic), it does not go to the extent of resulting in a non-custodial sentence. There is no medical evidence before me to suggest that your imprisonment would affect your physical health... The end result of my reasoning 1s that while I would suspend a substantial portion of the sentence because of your ill health and other considerations in your case I will require you' to serve some period in custody. I will suspend the rest of your sentence on each count after you have served 6 months in light labour. Whilst this may be a short period, I consider it sufficient considering your physical health, discomfort and pain and suffering you are now experiencing." Kapi J. therefore considered the appropriate sentence to be five years with light labour but, taking into account Mr. Tardrew's ill health and other considerations ordered suspension of all but six months of that head sentence. His Honour's power to suspend a sentence is provided by s.19(6) of the Criminal Code of Papua New Guinea (Ch. No.262). On 24 December 1985, an appeal against sentence was lodged by the acting Public Prosecutor on the grounds that it was inadequate and that the trial judge had erred in law in suspending such a large proportion of the head sentences. The notice of appeal was served on Mr. Tardrew in hospital on 27 December 1985 and upon his solicitors on 30 December 1985. The appeal was listed for hearing on 27 March 1986, but it was adjourned on that date until 2 April 1986 on the application of the respondent, whose counsel argued that' there had been insufficient notification to Mr. Tardrew of the date of hearing. On 1 April 1986, Mr. Tardrew was released from prison, (as his six months sentence had expired, the term having been calculated as commencing on 1 December 1985). Immediately upon his release on 1 April, Mr. Tardrew left Papua New Guinea "upon legal advice" in his sailing vessel, "Surefoot". There was considerable media attention to his leaving. On 2 April 1986, the appeal was heard in the Supreme Court of Justice of Papua New Guinea, in Waigani, before Kidu C.J., Bredmeyer and Barnett JJ. The Court gave its judgment on 4 April 1986. It allowed the appeal in part, affirming the sentences of five years and three years in light labour concurrent, but quashing the suspension of four and a half years of that sentence and ordering that Mr. Tardrew serve a_ total period of five years imprisonment, less the period already served. , 10. A warrant for Mr. Tardrew's arrest was issued in the Supreme Court of Justice on 4 April 1986. The Public Prosecutor's appeal had only been directed to the suspension of the four anda half years. Similarly, Mr. Tardrew did not cross-appeal or argue that the five year head sentence was excessive. The issue on the appeal was' therefore confined to the issue of the suspension of the sentence. The Court in its joint judgment held that:- ",,..suspension under s.19(6) of the Criminal Code is, Or may be, appropriate in three broad categories. There may be other categories but these are the main ones: " (a) Where the suspension will promote the personal deterence, reformation and/or rehabilitation of the offender ... (b) Where the suspension will promote the repayment or restitution of stolen money or goods. Suspension 1s a useful device to secure this end. (c) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of his bad physical or mental health. Some general discussion of additional hardships which a particular offender may face in prison as a mitigating factor - not particularly in relation to suspension of part of a sentence - is found in D.A. Thomas, Principles of Sentencing, (2nd ed.), pp.215-216." The Supreme Court then went on to say that it believed that the trial judge had taken into consideration the offender's ill health, not only in calculating the head sentence but also in determining if he was eligible for any period of suspension in accordance with the principles outlined above, in effect "discounting" the sentence twice. ' 11. "The learned trial judge clearly in our view took into account the prisoner's medical condition in fixing the prisoner's head sentences which totalled five (5) years. He spent one anda half pages discussing the prisoner's health and he began that discussion immediately after mentioning five other mitigating factors and before imposing the head sentences. The learned trial judge then used the prisoner's ill health again in suspending nine-tenths of the jail term. The practice of giving such double discount was condemned in Public Prosecutor v. Thomas Vola (1981) P.N.G.L.R. 4iZ-at p.417 in the joint judgment of Kapi, Pratt and Miles, JJ. As we interpret that judgment, it was not simply the double use of the same mitigating factors which was criticised but that the double use produced a distorted wrong result: an effective sentence which was overly generous to the prisoner." Their Honours went on to examine remarks made by the primary judge about the medical evidence, and noted that:- "...the learned trial judge went into the evidence on the prisoner's medical condition in some detail and made findings of fact on it. Those findings are not particularly favourable to the prisoner. For example, at one point he said: 'There is no medical evidence before me to suggest that your imprisonment would affect your physical health.' Later he said that the prisoner on his own evidence required physiotherapy and provision of pain-relievers, and the trial judge went on to Say: 'It has not been seriously suggested that this treatment could not have been made available in Papua New Guinea.' It had been argued for the prisoner that no orthopaedic surgeon was in full- time residence in Papua New Guinea. The trial judge said that whilst the general surgeon, Mr. Sharma, who gave evidence, was not an orthopaedic surgeon, 'I do not consider that he is incapable of providing the necesSary treatment or of directions for you to see a specialist.'" The Court went on to hold that:- ' 12. "We consider that those findings of fact exclude the suspension of any part of the sentence because on those findings, this respondent would not suffer special or excessive hardship in prison. There was clearly no other basis for suspension. The suspension was not ikely to reform or eter the prisoner. Immediately after the offences he left Papua New Guinea permanently. He lived in Australia. ... The holding over his head of a 12 month suspended sentence from a Papua New Guinea court would have absolutely no effect on his conduct in Australia because it was unlikely to be enforced there. Clearly, too, the moneys had been repaid, so suspension was not appropriate to secure the repayment of the stolen money." (my emphasis) The Court found the effective sentence of six months to be manifestly inadequate, and stated in conclusion:- "Not only was suspension not appropriate on the medical evidence and that is an error of principle which justifies the allowing of this appeal, but the net result of five years' head sentence with only six months to serve was so inordinately low that it also justifies our intervention." The suspension was accordingly quashed and the respondent ordered to serve the full five year head sentence less the time already served. On about 4 April 1986, Mr. Tardrew landed his yacht, "Surefoot", in Cairns and that night flew to Brisbane where he remained for two days before returning to Cairns. On 7 April 1986, he again departed in the "Surefoot", bound for Noumea accompanied by two inexperienced sailors. He remained in Noumea until 28 May 1986, but was unable to find work. In that period he sought no medical attention. On 28 May 1986, he commenced a voyage to Australia, arriving in Gladstone on 15 July 1986, where he sought medical attention. Further surgery was performed by a ' 13. Dr. Ian Dickinson, which was successful, but Mr. Tardrew was unable to recommence employment until early March 1987. He was then arrested at his place of employment in Brisbane on 23 July 1987 pursuant to the warrant issued by the Papua New Guinea Supreme Court on 4 April 1986. His extradition hearing came before Mr. W.J. Page, Stipendiary Magistrate, on 21 December 1987. Mr. Page found that the order for extradition should be made and it is that order which the applicant seeks to have set aside by to this Court. It has been submitted to this Court that the Magistrate erred in being satisfied that it was not unjust or oppressive to surrender the applicant to the authorities of Papua New Guinea, and as earlier noted, one supporting argument is based upon the improper actions of the prosecution regarding undertakings allegedly made in the meeting of 27 November 1984 and the subsequent letter of 2 December 1984. The obligations of the prosecution in relation to sentence were discussed by the Full Court of the Federal Court in R. v. Tait (1978) 46 F.L.R. 386. In its joint judgment, the Court said at p.389 that 1t was:- ",..unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error." However, the judgment shows that the Court clearly regarded the prosecution's primary obligation as one owed to the Court:- "The Crown has been said not to be concerned with sentence (see e.g. Laurence J. in Paprika Ltd. v. Board of Trade [1944] 1 K.B. 327), but when a Statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissiond as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing Court for a heavy sentence. The Crown has a duty to the Court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence 1S conferred. The Crown is under a duty to assist the Court to avoid an appealable error. The performance of that duty to the Court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting the case which might ultimately be made on appeal." The Supreme Court has enumerated what it considered to be the errors made by Kapi J. in arriving at his sentence. It is very difficult to say that any of these errors were the result of a breach of duty owed to the Court by Mr. Boyce. He had not "led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error". It is clear that, if Mr. Boyce had breached any obligations owed, it was not those owed to the Court but those, if any, owed to the defendant. 15. In relation to the allegations of impropriety on the part of the prosecution, it is significant that no complaints were made before the appeal court in Papua New Guinea. This is not a case where an argument had been advanced to an appeal court that the prosecution had, in its conduct of the matter before the primary court, adopted a position which was at variance to the position adopted on appeal. No argument was addressed to the appeal court that the prosecution had taken a certain stance before the primary judge from which it now, on the appeal, wished to resile. The factual position is quite different. It is sought, on an application to review a decision concerning extradition, to be argued that, had an appeal court been appraised of what was within the then appellant's power to put before it, its decision might have been different. The meeting of 27 November 1984, the letter of 2 December 1984, and the effect of those matters, was not put before the Supreme Court on the appeal. The contention presently made is that the appeal by the Crown involved a resiling from the position which the prosecution had previously adopted. This was a matter which was open to the appellant to put before the appeal court but which he did not. It seems to me that a fair reading of all the evidence touching on the conduct of the prosecution does not permit the conclusion that there was a warranty or assurance given that the prosecution would not appeal if a light sentence was given by the primary judge. Independently of that view, however, it seems to me that, even if that were the case, it would not be an appropriate basis for this Court to intervene. The appropriate 16. remedy, if there is one, is perhaps of a prerogative kind in the courts of Papua New Guinea. In Perry v. Lean (1986) 85 F.L.R. 29, the Full Court of the Supreme Court of South Australia discussed what elements would cause an extradition order to be "unjust and oppressive". The case for the appellant had placed special emphasis on the words "for any reason" contained in the Service and Execution of Process Act 1901 (Cth), as found in s.16 of the Extradition (Commonwealth Countries) Act 1966 (Cth). Jacobs J. at p.34 said:- "...it is said that these words require the court to decline to make the order for extradition if the evidence discloses any taint of injustice or Oppression. To read those words in that narrow sense would in my judgment give to the section an Operation which is far too wide and unrestricted. It may be possible to discover an element at least of oppression in many cases of extradition, but that alone is not sufficient. No two cases are alike, and what the court is required to do 1s to weigh the whole of the circumstances in order to determine not merely whether there is injustice or oppression, but whether it would be on balance unjust and oppressive to return the person, for that is the critical, and indeed the oaTy. issue." His Honour points out that probably the most weighty and important factor is the degree of seriousness of the offence, but noted also that what would normally amount to oppression may not be sufficient for a finding of 'oppression' within the meaning of the Act (citing R. v. Governor of Pentonville Prison; Ex parte Narang [1978] A.c. 247). Mohr J. said at p.42:- 17. "The concept of 'injustice' or 'unjust' is not confined to the appellant. This concept needs to be considered in the wider concept of justice taken as an entire concept including the general interest of the community as a whole in having persons charged with serious crimes brought to trial." This is an important consideration, but if injustice were shown in relation to an appellant, I would find it difficult to imagine that the interests of others, or the public generally, could be called in aid to render the process just. Senior counsel for the respondent referred to a_ number of factors present in this case which should have considerable bearing upon a finding that it would not be unjust or oppressive to return the applicant to Papua New Guinea. These were:- (i) The gravity of the offence. (ii) The fact that the applicant left New Guinea the day before the appeal was to be heard: in effect, he took a calculated gamble, seeking to avoid the consequences of a successful appeal should it be successful. (iii) There was no delay by the prosecution in this case except that occasioned by the applicant himself in seeking to avoid the authorities. (iv) There is no doubt in this case that the applicant is guilty of the offences, a&S he has pleaded guilty to them, unlike the other extradition cases earlier referred to where the commission of the offence had yet to be established. The onus of proving injustice or oppression lies upon the applicant. In Zacharia v. Republic of Cyprus [1963] A.C. 634, Lord Parker C.J. at p.639 said:- "...I find it impossible in this state of the evidence to say that this applicant, upon whom the onus lies, has satisfied me ..." tunderlining added) This observation was cited by Walters J. in MacDonal 18. Attorney-General of Australia (1980) 42 F.L.R. 133, who sai p.145:- "In any case, the task of establishing injustice or oppression rests upon the fugitive ...", The Full Court of the Federal Court, on appeal from decision of Pincus J., in Amrit Lal Narain (1987) 24 A.C.R. discussed the onus of proof in extradition cases. In the d ov. d at the 206, joint judgment of Fox, Wilcox and Jackson JJ., their Honours said at p.215:- "A second general submission put on behalf of the appellant was that no onus of proof is cast by s.27 upon a person whose extradition is sought. An obligation rests upon the person seeking extradition, it was said, to negative each of the matters specified in pars (a) and (b) of s.27 and, therefore, the injustice, oppressiveness and severity of surrendering the person to New Zealand. The submission is inconsistent with a long line of authority under the Service and Execution of Process Act 1901 and with several decisions under s.27 itself, in each of which it has been held that the onus' rests upon a person raising the matter such as those referred to in s.27 to prove the necessary facts..." Their Honours went on to say:- "The authorities upon onus under s.27 to which we have referred were all decided before the section took its present form. Until the amendments' made by the Extradition (Commonwealth Countries) Amendment Act 1985 (Cth) there was no reference in S.27 to 'any other reason'. In our opinion those cases were correctly decided in relation to onus, having regard to the then form of the legislation. But the position is made even clearer by the addition of 'any other reason'. It would be irrational to cast upon an applicant for extradition the burden of negativing every reason, including reasons known only to the person sought to be extradited, capable of leading to a finding of injustice, oppression or undue severity." In my opinion, the applicant has failed to establish that, by virtue of the conduct of the prosecution at any stage of the proceedings up to and including the appeal, that the magistrate's decision concerning extradition was unjust or oppressive. It has also been submitted to this Court that the magistrate's decision to extradite the applicant to Papua New Guinea is "unjust and oppressive" because of the applicant's medical condition which, when combined with the gaol conditions in Papua New Guinea, make the sentence excessively severe. The learned trial judge made various findings of fact in relation to the applicant's physical health but, as the Supreme Court later noted, they "...are not particularly favourable to the prisoner". Kapi J. had said:- "Whilst I consider your physical health an important consideration and the treatment you did receive in sentence (sic) it does not go to the extent of resulting in a non-custodial sentence. There is no medical evidence before me to suggest that your imprisonment would affect your physical health. I note that in Australia you were taken into custody in a Queensland prison and no such objection was made there." As to the applicant's need for continuing treatment, such as physiotherapy, the Supreme Court noted the trial judge's comment that:— mo, 20. "It has not been seriously suggested that this treatment could not have been made available in PNG (...)" and also noted that his Honour had considered that a general surgeon would be capable of providing adequate treatment until such time as an orthopaedic surgeon became available. After examining these findings, the Supreme Court concluded:- "We consider that those findings of fact exclude the suspension of any part of the sentence because, on those findings, this respondent would not suffer special or excessive hardship in prison. There was clearly no other basis for suspension." Since the delivery of the Supreme Court judgment, the applicant's condition has much improved. This is largely due to the success of the operation performed by Dr. Ian Dickinson on 3 November 1986. At the time of his early incarceration, the applicant was on crutches and unable fully to perform normal activities. He was experiencing considerable pain requiring regular analgesia and physiotherapy. Dr. Dickinson notes in his report dated 16 December 1987 that since the second operation "...he has had some considerable improvement with his symptoms...". It might be noted that Mr. Tardrew did not seek any medical assistance for the entire period spent in Noumea and whilst sailing to Australia, despite quite physically demanding 21. conditions. He also has stated that since Dr. Dickinson's treatment he no longer requires drug therapy. Generally, his physical problems are considerably less than those he experienced whilst he was in prison in Papua New Guinea. As to complaints about gaol conditions, the Australian High Commission was said regularly to visit the gaol to check on the welfare of Australian citizens held there. Other evidence was received as to medication and food provisions in gaol. Neither Kapi J. nor the Supreme Court accepted that it would be special hardship to be imprisoned in Papua New Guinea. The evidence from the appellant had a contrary tendency. Notwithstanding the criticisms advanced by Mr. Tardrew's counsel concerning these aspects, the legal position is that the Magistrate has not been shown to have been wrong in reaching the conclusion that the applicant's medical condition in the context of imprisonment in Papua New Guinea was not such as to make an extradition order "unjust and oppressive". The power of the appellate court under the Extradition (Commonwealth Countries) Act 1966 (Cth) or the Administrative Decisions (Judicial Review) Act is not one of review on the merits or one which enables the appeal court to substitute its view for that of the lower court when there has been no error of law. The Fugitive Offenders Act 1967 (U.K.), has been the subject of much discussion. In R. v. Governor of Pentonville; Ex parte Narang [1978] A.C. 247, it was said at p.289 by Lord Fraser of Tullybelton that the finding of 'injustice or oppression' is a question of fact, and that:- r - od . 22. "(f)or these reasons, I am of opinion that the decision of the Divisional Court was not reached by the exercise of any judicial discretion. It was an inference from the primary facts found, of the same kind as an inference that some action was reasonable or unreasonable. Such decisions, of course, involve matters of opinion but they are to be regarded as decisions of fact." viscount Dilhorne agreed, at p.272, where he said:- "For it to order the discharge of a person, it must appear to the court that for a reason stated in s.8(3) it would be unjust or oppressive to return him. This involves consideration by the Court of the facts placed before it and the forming of an opinion as to the inferences to be drawn therefrom; in the present case it means considering all the materials before the Court and then deciding whether or not the inference is to be drawn tht it would be unjust or oppressive to return him. The court has, in my opinion, to decide a question of fact, not of law or of mixed law and fact." In Borkovic v. Minister for Immigration and Ethnic Affairs (1981) 39 A.L.R. 186, Fox J. considered the powers of the Federal Court of Australia in an appeal under the provisions of the Administrative Decisions (Judicial Review) Act from a_ lower tribunal, and said at p.188:- "It is plain that under the Act in question this court does not have power to make a decision on the merits of the factual position for itself. It is plain that it is not invited or empowered under the Act to consider the facts for itself for the purpose of forming and declaring 1ts own view thereon. Of course, in order to apply some of the provisions of the Act it is necessary to examine the facts quite closely, but this is not for the ' purpose of the court arriving at its own decision; rather it is to see whether the case comes within one of the specific provisions of the relevant sections of the Act." ' . 23. In Hans Heinz Klepp v. W.P. Gibb (unreported judgment of Keely J. of 18 November 1987), Keely J. discussed the Federal Court's power in an appeal from a decision under s.18(3) of the Extradition (Foreign States) Act 1966 (Cth). This subsection, so far as is relevant, is in the same terms as s.17(3) of the Extradition (Commonwealth Countries) Act 1966 (Cth), which states:- "(3) Upon a review under sub-section (1), the Court shall have regard only to the evidence given in the proceedings before the Magistrate and shall - (a) if satisfied that the decision of the Magistrate was valid - make an order confirming the decision; or (b) if not so satisfied - order that the fugitive be released." Keely J. said:- "In my opinion s.18, in providing for 'a review of the validity of the decision of the Magistrate', does not intend that there should be a_ re-hearing by this court of the application made to the Magistrate under s.17(6); it permits a review akin to that which occurs when a decision of a Magistrate is the subject of an order to review in the Supreme Court of Victoria. The wording of s.18(3)}, on one reading of it, may be thought to require this court, where it is unable to form any opinion as to whether the Magistrate's decision is valid or not, to 'order that the fugitive be released'. However, having considered the provision in its context, I have decided to uphold Mr. Santamaria's written submission that: '6. Under s.18(3) of the Act, the Court will be 'satisfied that the decision of the Magistrate was valid' if having 'regard only to the material that was before the Magistrate' the Court is satisfied:~- (a) that there was sufficient material before the Magistrate upon which he could have lawfully decided that the fugitive should be committed to prison; and (b) there is no evidence or reason to believe that the Magistrate proceeded otherwise than in accordance with the law. The section does not require the Respondent to establish positively that the Order of the Magistrate was valid.'" His Honour then went on to hold:- "...in my opinion there was sufficient material before the Magistrate for him to lawfully decide that the applicant should be committed to prison and there is nothing to suggest that the Magistrate proceeded otherwise than in accordance with the law." In conformity with the judgment of Keely J., it is not within the powers of this Court to overturn the decision of the magistrate unless the invalidity of the decision can be proven by the applicant. This has not been done. Further, in this case, in my opinion, none of the specific provisions of relevant sections of the Administrative Decisions (Judicial Review) Act has been made out. Finally I turn to the submission that the applicant is not a person who is liable to be surrendered to a declared Commonwealth country, because of the provisions of s.10(4) of the Extradition (Commonwealth Countries) Act 1966 (Cth). The sub-section provides:- "(4) A person is not liable to be surrendered to a declared Commonwealth country in respect of an offence if he has been acquitted or pardoned by a competent tribunal or authority in any country, or has undergone the punishment provided by the law of, or of a part of, any country, in respect of that offence or of another offence constituted by the same act or omission as that offence." It was submitted that Mr. Tardrew is someone who has "undergone the punishment provided by the law of any country", because at the time of his release on 1 April 1986 he was a person who had undergone the punishment imposed by the State. His position was to be contrasted with that of an escaped prisoner or someone who has not yet been brought to trial - he had served the six months imprisonment which was the extent of the punishment to be served in respect of the eight offences. It was urged upon the Court that, in conformity with the general principles of interpretation of penal statutes, any ambiguity as to the meaning of the provision should be resolved in favour of the prisoner. In my view, mo such ambiguity exists. The words "provided by the law of any country" must be taken to refer to all of the law of that country and not simply to the particular decision which imposes punishment under a particular provision. The "law of any country" must necessarily include the law of that country relating to appeals. This 1s especially so in such a case as this where there has not been the imposition of a new sentence but rather a variation of the old. A sentence from which the Public Prosecutor appeals is 'varied' by the Supreme Court according to the Supreme Court Act of Papua New Guinea. Section 24(2) of that Act reads:- . "The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a Court of first instance, as to sentence, and the Supreme Court may in its discretion, vary the sentence and impose such sentence as it thinks proper. The Supreme Court did so ""vary" the sentence by retaining the five year head sentence but removing the suspension. This can be seen from the words of the Supreme Court at p.9 of its judgment:- "Not only was suspension not appropriate on the medical evidence and that is an error of principle which justifies the allowing of this appeal, but the net result of five years' head sentence with six months to serve was so inordinately low that it also justifies our intervention. We allow the appeal, affirm the head sentences given, quash the suspension of the sentences, and order the respondent to serve five years' imprisonment with light labour less the six months he has already served." Besides this, the appropriate time to determine whether the applicant was liable to be surrendered to Papua New Guinea is not on 1 April 1986 when he was' released, but at the time when the question has to be considered, that is, at the time of the magistrate's hearing. This comes from the words of the sub-section itself, which says that:- "...a person is not liable...". Past events will often be crucial, of course, in determining present liability, but that liability does not crystalize when a fugitive leaves a country or when he enters Australia. The question of liability is to be addressed when the extradition 4 . 27. order is made. Any other view of this section would lead to results contrary to both logic and justice. I have to say that, having closely considered the reasons of the Supreme Court on the appeal from Kapi J., there seems to be some room for sympathy for Mr. Tardrew's position. It seems to me to be at least a matter for argument that the categories in which a suspended sentence is appropriate are not restricted to the circumstances outlined by the Supreme Court. The judgment of the Supreme Court acknowledges as much. It is also strongly open to argument that Kapi J. did not impose the suspension of the head sentence only on the medical evidence, as the Supreme Court seems to have thought. In my respectful view, there is much to be said for the reasoning of Kapi J., his approach being to first consider what is the appropriate head sentence and to then suspend a part of it in consideration of the various mitigating factors which included not just medical evidence but all relevant considerations. It seems to me that he arrived at the sentence of six months by taking account of all of those mitigating circumstances. No authority is referred to to suggest that such ause of the suspended sentence option is not perfectly proper. However, these comments are by the way. The position 1s that I find that none of the grounds of the applicant for interfering with the decision of the magistrate has been made out. I dismiss the applications with costs. veitify that tus c. Feta) pages are a tru: < wy vf the reasons for judgment heroin of His Honour Mr. Justice Spender . 497 - Lp Associate preceding a. t ea Counsel for applicant: instructed by: Counsel for respondent: instructed by: Date of Hearing: Date of Judgment: 28. Mr. R.A. Mulholland Q.C. with Mr. S.J. Keim Stephen Comino and Cominos Mr. J.A. Griffin Q.C. with Mr. P. Callaghan Director of Public Prosecutions 15, 16 February 1988 13 May 1988