Republic of South Africa v Dutton, Edward Isaac & Anor [1997] FCA 708

FEDERAL COURT OF AUSTRALIA EXTRADITION - application under s 21(1) of the Extradition Act 1988 (Cth) to review order of magistrate that person whose extradition was sought is eligible for surrender and release from detention - meaning of "material that was before the magistrate" considered - nature of review by court - whether court had power to remit application to magistrate for rehearing - powers of the court under s 21 of that Act considered. Extradition Act 1988 (Cth), ss.7,11,19 and 21 Extradition (Republic of South Africa) Regulations Evidence Act 1995 (NSW), s.65(6) Todhunter v United States of America (1995) 57 FCR 70, considered and applied. Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 and (unreported, Lockhart, Hill and Kiefel JJ, 17/9/96), considered. Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461, applied. Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (1997) 121 ALR 626, applied. Parsons v Martin (1984) 5 FCR 235, applied. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618, distinguished. Ex parte Hicks (1991) 65 ALJR 398, distinguished. REPUBLIC OF SOUTH AFRICA v EDWARD ISAAC DUTTON & ANOR NG 975 of 1996

HILL J SYDNEY 1 August 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 975 of 1996 ) GENERAL DIVISION )

BETWEEN: REPUBLIC OF SOUTH AFRICA

Applicant

AND: EDWARD ISAAC DUTTON

First Respondent

HELEN SYME

Second Respondent

JUDGE(s): HILL J PLACE: SYDNEY DATED: 1 August 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: (1) The questions ordered by the Court to be determined separately before the trial, namely: 1. Whether material sought to be tendered before the second respondent but rejected by her is material included within the words "material that was before the magistrate" in s 21(6)(d) of the Act. 2. Whether the Court, on a review under s 21 of the Act, can determine for itself whether the person whose extradition is sought is eligible for surrender. 3. Whether the Court has power to remit the application by the applicant for the extradition of the first respondent to the second respondent for rehearing and determination. 4. Where, as a result of the rejection of evidence sought to be adduced by the applicant, there was insufficient evidence to satisfy the "sufficient evidence" test made applicable to the proceedings by the Extradition (Republic of South Africa) Regulations and the first respondent placed no material before the second respondent in relation to the matters referred to in s 19(2)(d) of the Act and the second respondent made an order under s 19(10) of the Act, the Court has power to review that order pursuant to s 21 of the Act. be answered as follows: 1. Yes; 2. Yes, but in doing so, the Court is restricted to a consideration of the material that was before the magistrate; 3. No; and 4. Yes (2) As agreed between the parties, the costs of the hearing devoted to the preliminary questions will be costs in the proceedings.