BRIAN FRUGTNIET v THE ATTORNEY GENERAL OF NEW SOUTH WALES [1996] NSWCA 201

BRIAN FRUGTNIET v THE ATTORNEY GENERAL OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA and CoLe JA 19 August 1996

[1996] NSWCA 201

Meagher JA. In this matter a magistrate, Mr Gould, on 21 June 1996, made an order under the Prisoners Interstate Transfer Act 1982 for the removal of Mr Frugtniet to Victoria. An appeal against his Worship's decision was dismissed by Justice Simpson on 8 August 1996.

Mr Frugtniet seeks leave to appeal to this Court. We are of the opinion that leave should be granted not because Mr Frugtniet's arguments are necessarily correct, that is a matter which we do not have to decide today, but because we consider his arguments sufficiently arguable.

The basis of the jurisdiction of the magistrate was that Mr Frugtniet has to be subject to an arrest warrant. Those words occur in s 12.1 of the Prisoners Interstate Transfer Act. In fact Mr Frugtniet had been indicted on 19 November 1993 in Victoria and a relevant certificate had been granted on 20 December 1994 pursuant to s 66 of the Magistrates Court Act 1989 of Victoria.

The purpose of a s 66 certificate is to bring the subject of the certificate before the Court under s 67 to enable him to plead guilty or not guilty. Mr Frugtniet voluntarily came before the Court in Victoria on 28 April 1995 and pleaded not guilty. It must be arguable therefore that the purpose of the s 66 warrant had become spent well and truly by the time either the learned magistrate or Justice Simpson on appeal dealt with the matter.

That is not the end of the matter, there are quite a number of other arguments which can be raised and I shall not pursue them. Suffice it to say that one argument on its own is sufficient to make the case against Mr Frugtniet very debatable so the order of the Court therefore will be that leave is granted and the stay of proceedings already granted will be continued until further order.