Dutton v Republic of South Africa [1999] FCA 2

FEDERAL COURT OF AUSTRALIA Dutton v Republic of South Africa [1999] FCA 2 EXTRADITION – Magistrate's decision rejecting evidence tendered to satisfy "sufficient evidence" test followed by application for review made by foreign country and then (after a change in the relevant regulations eliminated "sufficient evidence" requirement) by a fresh requisition and a fresh Attorney-General's notice – whether dismissal of the foreign country's application for review and confirmation of the Magistrate's order releasing the fugitive raised an estoppel or res judicata barring extradition – whether abuse of process – whether claim of abuse of process could be raised before Magistrate or on review of his decision or on application to the Court in respect of it – whether State Magistrate can be an "officer of the Commonwealth" whose decisions are amenable to review under s 39B(1) of the Judiciary Act 1903 – whether s 39B(1A) applies – discussion of review of decisions of Attorney-General re an extradition application – whether an Attorney-General's notice can be issued by the Minister of Justice. Judiciary Act 1903 (Cth), ss 39B(1), (1A) Extradition Act 1988 (Cth), ss 6, 14, 16, 19, 21, 22, 46 Extradition (Republic of South Africa) Regulations Ujiie v Republic of Singapore (1996) 66 FCR 323 referred to Winkler v Director of Public Prosecutions (1990) 25 FCR 79 referred to Republic of South Africa v Dutton (1997) 77 FCR 128 referred to GTE (Aust) Pty Ltd v Brown (1986)14 FCR 309 referred to Zoeller v Attorney-General for the Commonwealth (1987)16 FCR 153 referred to Foster v Attorney-General (1998) 158 ALR 394 referred to Wiest v Director of Public Prosecutions (1988)23 FCR 472 applied Papazoglou v Republic of the Philippines (1997)74 FCR 108; 144 ALR 42 applied Federal Republic of Germany v Parker (Ryan, Einfeld and Foster JJ, unreported, 2 July 1998) applied In re Rees [1986] AC 937 applied Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 applied McDade v Attorney-General of the Commonwealth (R D Nicholson J, unreported, 1 May 1998) referred to Ebatarinja v Deland (1998) 157 ALR 385 referred to Trimbole v Dugan (1984) 3 FCR 324 referred to Bramwell v Repatriation Commission (1998) 158 ALR 623 referred to Transport Workers' Union of Australia v Lee (Black CJ, Ryan and Goldberg JJ, unreported, 30 June 1998 referred to Hempel v Attorney-General (1987) 77 ALR 641 referred to Hempel v The Attorney-General (Spender, Pincus and Hartigan JJ, unreported, 27 November 1987) referred to Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 applied Zoeller v Webb (1989) 17 ALD 633 applied Slater v Chief Justice Miles (Finn J, unreported, 16 October 1998) referred to