United Kingdom v Forsyth [2003] FCA 1061

FEDERAL COURT OF AUSTRALIA

United Kingdom v Forsyth [2003] FCA 1061

EXTRADITION – judicial review – interlocutory relief – extradition proceedings – magistrate hearing proceedings – remand on bail – whether special circumstances addressed – whether jurisdictional error – whether serious case to be tried – balance of convenience – interlocutory relief revoking bail refused

Judiciary Act 1903 (Cth) s 39B

United Mexican States v Cabal and Others (2001) 183 ALR 645 cited

UNITED KINGDOM v CHARLES ALISTAIR FORSYTH AND ANOTHER

W203 OF 2003

FRENCH J

25 SEPTEMBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W203 OF 2003

BETWEEN: UNITED KINGDOM

APPLICANT

AND: CHARLES ALISTAIR FORSYTH

FIRST RESPONDENT

HIS WORSHIP MR ROBERT BLACK

SECOND RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 25 SEPTEMBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The claim for interlocutory relief is dismissed. 2. The application is set down for hearing on 1 October at 10.15 3. Liberty to apply at short notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W203 OF 2003

BETWEEN: UNITED KINGDOM

APPLICANT

AND: CHARLES ALISTAIR FORSYTH

FIRST RESPONDENT

HIS WORSHIP MR ROBERT BLACK

SECOND RESPONDENT

JUDGE: FRENCH J

DATE: 25 SEPTEMBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 Yesterday, an application was filed in this court by the United Kingdom as applicant, seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of his Worship Mr Black, a stipendiary magistrate, made at Perth on 23 September 2003. By that decision the learned magistrate, pursuant to s 15(6) of the Extradition Act 1988(Cth), ordered that the first respondent Charles Alistair Forsyth be released on bail subject to meeting certain conditions. Those conditions included the provision of a surety of $100,000 and required personal reporting to a police officer in charge of the police station at Annfield Park in Boyup Brook. The latter requirement was qualified in relation to a period during which Mr Forsyth was to undergo a medical procedure by way of surgery at Holyoake Private Hospital on 26 September 2003. 2 The application seeks by way of final relief an order quashing the order of the learned magistrate to release Mr Forsyth on bail pursuant to s 15(6) of the Extradition Act and an order that he be remanded in custody for such period as may be necessary for proceedings under s 18 or s 19 of the Act, or both, to be conducted and such further orders as the Court might see fit. Interlocutory relief was claimed by way of an order that Mr Forsyth's bail be revoked and that he be remanded in custody. 3 The position appears to be that Mr Forsyth has been arrested on a provisional warrant in relation to warrants for his arrest which were issued out of the Selby Magistrates Court in the United Kingdom and which relate to a number of offences comprising: (a) fraudulent trading contrary to s 458 of the Companies Act 1985, two counts; (b) breach of trademark contrary to s 92 of the Trademarks Act 1994, one count; (c) breach of copyright contrary to s 107 of the Copyright (Design and Patents) Act 1988, one count; (d) obtaining a pecuniary advantage contrary to s 16(1) of the Theft Act 1968, two counts; and (e) furnishing false information contrary to s 17(1)(b) of the Theft Act 1968, three counts. 4 These are offences which are punishable under the laws of the United Kingdom, so it is said on affidavit material before me, by maximum penalties of imprisonment for various terms of years according to the particular offence. 5 When the learned magistrate made the order that he did on 23 September, the transcript of his remarks indicate that he had been advised on the previous day, when the matter came before him, that the arrest warrant for Mr Forsyth from the United Kingdom had been withdrawn or quashed in the Selby Magistrates Court on or about 5 August 2003. That advice was confirmed on 23 September. In the meantime he had granted bail to Mr Forsyth, he having been remanded in custody since some time in November 2002, following his arrest on the provisional warrant. The remand in custody order was made because, as the magistrate observed, there were no special circumstances shown and there was thought to be a risk of flight. On the day before 23 September new circumstances emerged and for that reason bail was reconsidered and was granted. He said it would appear that urgent application had been made in the High Court of Justice in London on 22 September in relation to the withdrawal of the arrest warrants and an order was made that pending a final hearing there was a declaration that the decision of the Selby Magistrates Court to withdraw the arrest warrants did not affect their validity. A final hearing of the matter was ordered to be expedited in the High Court of Justice. 6 The learned magistrate observed that the issue of whether or not the arrest warrants would stand was a matter that would be determined in due course. The likelihood of the success or otherwise of that application was not something he could comment on but there was the prospect that those arrest warrants might not be valid. He noted that Mr Forsyth had been in custody since November 2002 and that hearing dates for the part-heard extradition proceedings under s 19 had been obtained for 17 and 18 February 2004 so that if the warrants were valid a determination as to whether Mr Forsyth was eligible for extradition would not be made until some time after 18 February 2004. 7 His Worship referred to what the High Court of Australia said in United Mexican States v Cabal and Others (2001) 183 ALR 645 that the usual considerations in respect of bail do not apply in extradition matters. He observed that if Mr Forsyth were remanded in custody it would mean that he would have been in custody by the time the matter was determined as to whether he is an extraditable person for some 15 months. That would be the equivalent of a little less than four years' imprisonment. Given that there was some prospect that the warrants might not be valid, given Mr Forsyth's medical condition and evidence before him that from time to time in relation to that condition and taking into account the question of the risk of flight, he concluded that it was appropriate to continue bail. There would be conditions imposed. He then referred to those conditions which I have already mentioned. 8 The matter was listed today on the basis that it could proceed to a final hearing today. However, it was apparent that counsel for the respondent, Mr Forsyth, had been instructed very recently. There was affidavit and other material being tendered which neither party had had an opportunity to properly consider and although it might have been convenient from some points of view to proceed with a final hearing, I took the view that in the circumstances the better course would be to deal with the interlocutory claim for relief and give both sides the opportunity for a proper consideration of the matters necessary to deal with the application for final relief. 9 I have listed the application for final relief for Wednesday, 1 October at 10.15 and proceeded today to deal with the claim for interlocutory relief. I judge the claim for interlocutory relief on the basis that in order to succeed in the final application the applicant will have to show error of law amounting to jurisdictional error which would warrant the grant of certiorari or an order in the nature of certiorari under s 39B of the Judiciary Act read with s 23 of the Federal Court of Australia Act 1976 (Cth). 10 Although counsel for the applicant has pointed to the learned magistrate's evaluation of the circumstances and submitted that it indicates that he had misapplied the law by failing to have regard to the requirement for exceptional circumstances, there is a judgment to be made as to whether that is an argument about his assessment of the facts or an argument about the construction of the law or its proper application. 11 At the moment, while plainly the applicant has an arguable case that there was a jurisdictional error on the part of the magistrate, I am not satisfied so far that it is made out to be a very strong case in the sense that it should overcome considerations relating to balance of convenience. So far as balance of convenience is concerned there are weighty considerations on either side of the argument. From the point of view of the applicant, there is an asserted risk of flight based on the proposition that the respondent, Mr Forsyth, is undergoing surgery tomorrow for the removal of an adrenal gland and that by reference to evidence from a medical officer who has not actually seen him but is speaking in terms of that kind of operation, he would be fit to travel or move with sufficient motivation some 48 hours or so after the surgical procedure has been completed, assuming it to be successful. 12 On the other hand, there is in place an order of the learned magistrate which, if not shown to be flawed by jurisdictional error, would stand and to the benefit of which Mr Forsyth would have been entitled all along, if it should turn out that the claim for final relief is not successful. It will be observed that in making this assessment I am not simply sitting in the shoes of the magistrate and dealing as a Supreme Court judge might, with an application or a renewed application to deal with a bail question de novo. I am faced with a claim for interlocutory relief incidental to an application for judicial review which invoking, as it does, s 39B with a view to a quashing order (presumably in the nature of certiorari) appears to require that jurisdictional error be demonstrated in order to make it good. The position is quite different from that of somebody simply reviewing de novo or by way of rehearing a magistrate's decision. 13 In the circumstances I am not satisfied that the interlocutory order sought should be made. I will dismiss the claim for interlocutory relief and set the matter down for hearing on Wednesday at 10.15. There will be liberty to apply at short notice if required. The orders are: 1. The claim for interlocutory relief is dismissed. 2. The application is set down for hearing on 1 October at 10.15 3. Liberty to apply at short notice.