Heslehurst v Government of New Zealand [2001] FCA 1889

FEDERAL COURT OF AUSTRALIA

Heslehurst v Government of New Zealand [2001] FCA 1889

EXTRADITION – application for order for release from custody under subs 38(7) of Extradition Act 1988 (Cth) – applicant not conveyed out of Australia within one month after day on which surrender warrant in respect of him was first liable to be executed – whether this was for "reasonable cause" for purposes of subs 38(8) of Act – the one month period occupied with attempts by the authorities to ensure that applicant was medically fit to travel by air from Australia to New Zealand – "reasonable cause" found to be established

Extradition Act 1988 (Cth) s 38

MAXWELL JOHN HESLEHURST v THE GOVERNMENT OF NEW ZEALAND

N 1628 OF 2001 LINDGREN J 20 DECEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1628 OF 2001

BETWEEN: MAXWELL JOHN HESLEHURST

APPLICANT

AND: THE GOVERNMENT OF NEW ZEALAND

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 20 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1628 OF 2001

BETWEEN: MAXWELL JOHN HESLEHURST

APPLICANT

AND: THE GOVERNMENT OF NEW ZEALAND

RESPONDENT

JUDGE: LINDGREN J

DATE: 20 DECEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant, Maxwell John Heslehurst ("Mr Heslehurst"), who is not legally represented, applies for an order releasing him from custody under subs 38(7) of the Extradition Act 1988 (Cth) ("the Act").

factual and legislative background 2 It will be convenient if I commence the account of the factual background by referring to a surrender warrant issued under subs 34(1) of the Act on 23 March, 2000. That warrant was issued by Magistrate Orchiston, a Magistrate of the Local Court of New South Wales. It was directed to all police officers within the meaning of the Act and also to "Detective Joel Carson of the New Zealand Police" (in the warrant called "the New Zealand escort officer"). 3 The warrant recited that Mr Heslehurst had been remanded after being arrested under an endorsed New Zealand warrant for intent to defraud by false pretences and that a request had been made to Magistrate Orchiston on behalf of New Zealand for proceedings to be conducted under s 34 of the Act. The warrant authorised the police officers to take Mr Heslehurst into custody and to transport him in custody, and, if necessary or convenient, to detain him in custody for the purpose of enabling him to be placed in the custody of the New Zealand escort officer and transported out of Australia. It also authorised the New Zealand escort officer to transport Mr Heslehurst in custody out of Australia to a place in New Zealand for the purpose of surrendering him to a person appointed by New Zealand to receive him. As will appear later, it is important for present purposes that the New Zealand escort officer was Detective Carson and no other. 4 Mr Heslehurst brought proceeding N 301 of 2000 in this Court against the Government of New Zealand seeking review by the Court of Magistrate Orchiston's decision of 23 March 2000. On 15 September 2000 Branson J ordered that his application be dismissed and that the order of Magistrate Orchiston that Mr Heslehurst be surrendered to New Zealand be confirmed ([2000] FCA 1311). Mr Heslehurst appealed against her Honour's orders to a Full Court and on 12 March 2001 the Full Court ordered that the appeal be dismissed ((2001) 109 FCR 226). 5 Mr Heslehurst applied for special to appeal to the High Court of Australia against the Full Court's order. On 4 October 2001 his application for special leave to appeal was deemed abandoned for his non-compliance with certain High Court rules. 6 The date 4 October 2001 assumes significance in the present proceeding. In order to explain why, I must refer to provisions of the Act. 7 Section 38 of the Act provides that a surrender warrant must authorise a police officer to take the relevant person into custody, to transport the person in custody, and, if necessary or convenient, to detain the person in custody for the purpose of enabling him or her to be placed in the custody of a specified person (referred to the in Act as "the New Zealand escort officer") and transported out of Australia. The section provides that a surrender warrant must also authorise the New Zealand escort officer to transport the person in question in custody out of Australia to a place in New Zealand for the purpose of surrendering the person to a person appointed by New Zealand to receive him or her. Subsection 38(2) provides that subject to s 38 a surrender warrant shall be executed according to its tenor. 8 It will be noted that the requirement that a surrender warrant be executed according to its tenor is expressed to be subject to s 38. Subsection 38(3) provides that a surrender warrant issued under par 34(1)(c) of the Act (the surrender warrant in present case was issued under that provision) must not be executed while any proceedings under s 35 of the Act in relation to the order of the magistrate set out in the warrant are being conducted or are available. Section 35 provides for review of an order made by a magistrate under, inter alia, par 34(1)(c). I need not set out the scheme of s 35. It suffices to note that there is reference in the section to an application for special leave to appeal to the High Court against an order of a Full Court of this Court made on an appeal of the kind which was brought by Mr Heslehurst in the present case. 9 It seems, therefore, and the contrary has not been suggested, that one effect of subs 38(3) is that the surrender warrant in respect of Mr Heslehurst was not to be executed while his application for special leave to appeal to the High Court was being conducted or was available. In substance, the surrender warrant could not be executed until Mr Heslehurst's application for special leave was deemed abandoned on 4 October 2001. 10 Subsection 38(7) provides, relevantly, that where a person is in custody in Australia under a surrender warrant issued in relation to him or her more than one month after "the day on which the warrant was first liable to be executed" and the person applies to this Court, and reasonable notice of the intention to make the application has been given to the Attorney-General, the Court must, subject to subs (8), order that the person be released from that custody. 11 On the basis that the warrant in respect of Mr Heslehurst was first liable to be executed on 4 (or perhaps 5) October, Mr Heslehurst was in custody in Australia under the surrender warrant for more than one month after that day by the time when, on 14 December 2001, he commenced the present proceeding. 12 Subsection 38(8) provides that where the Court is satisfied that the person in custody has not been conveyed out of Australia under the warrant within the one month period: "(a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or (b) for any other reasonable cause; the Court shall not order that the person be released from custody." In the present case, the respondent, the Government of New Zealand, submits that there is reasonable cause here why Mr Heslehurst was not conveyed out of Australia within the one month period and therefore the Court should not order his release from custody. 13 This makes it necessary for me to review the evidence as to what has happened since 4 October 2001. I will set out those events in chronological order.