Supreme Court New South Wales Medium Neutral Citation: Visser v Commissioner of Australian Federal Police (No 3) [2012] NSWSC 1387 Hearing dates: 16 November 2012 Decision date: 16 November 2012 Jurisdiction: Common Law Before: Button J Decision: (1) The order made on 20 August 2012 by Magistrate Farnan is confirmed, except as to dates and times. (2) The applicant, John Visser, is to be remanded in the custody of NSW Department of Corrective Services until 9am on Tuesday 20 November 2012, at which time he is to be surrendered to the custody of the Australian Federal Police, to then appear at the Melbourne Magistrates Court no later than 10am on Wednesday 21 November 2012. Catchwords: PROCEDURE - interstate extradition - Service and Execution of Process Act 1992 (Cth) - review of order made by Magistrate - abuse of process in requesting State not relevant - warrant valid - order confirmed Legislation Cited: Criminal Code Act 1995 (Cth) Service and Execution of Process Act 1992 (Cth) Supreme Court Act 1970 Cases Cited: Berichon v Chief Commissioner, Victoria Police [2007] VSC 143; (2007) 171 A Crim R 496 Butler v Commissioner of Police (unreported, NSW Supreme Court, Hidden J, 24 November 1997) Loveridge v Commissioner of Police for South Australia [2004] SASC 195; (2004) 89 SASR 72 Gummer v Commissioner of Police [1995] 1 Qd R 346; (1994) 71 A Crim R 140 R v Lavelle (1995) 82 A Crim R 187 Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305 Category: Principal judgment Parties: John Visser (applicant) Commissioner of Australian Federal Police (first respondent) Magistrate Broughton (second respondent) Magistrate Farnan (third respondent) Representation: Counsel: In person (applicant) I Abdul-Karim (first respondent) Solicitors: Commonwealth Director of Public Prosecutions (first respondent) File Number(s): 2012/251251 EX TEMPORE Judgment Introduction 1These proceedings are a review of a decision of a Magistrate to order extradition to another State, pursuant to s 86 of the Service and Execution of Process Act 1992 (Cth) ("the Act"). Although, after an adverse evidentiary ruling during the course of the hearing, the applicant withdrew the application, I consider that it is appropriate that I deliver a brief judgment. 2In short, Mr John Visser, who is the applicant, seeks to review an order made by Magistrate Farnan in the New South Wales Local Court allowing an arrest warrant issued in Victoria to be executed against him in New South Wales ("the extradition order"). The extradition order was made pursuant to s 83 of the Act. The foundation of the order was an arrest warrant issued by a Victorian Magistrate that authorised the arrest of the applicant to face a charge in that State. The charge is conspiring to possess a commercial quantity of a border controlled drug, which is an offence against the Criminal Code Act 1995 (Cth). 3The applicant relies upon an application transmitted by facsimile dated 20 August 2012, seeking the following relief: (1)A declaration that the certificate is invalid. (2)An order quashing the certificate. (3)A writ of Prohibition restraining the respondent from proceeding with the proceedings before the Court. (4)Any orders the Court sees fit. I infer that the certificate to which the applicant refers is the order of the Magistrate in written form. 4The first respondent to these proceedings opposes the orders sought by the applicant and submits that this Court should confirm the extradition order made by the Magistrate. The second and third respondents do not appear. For convenience I shall refer to the first respondent as "the respondent". Legislative Structure 5The portions of the Act relevant to the present proceedings appear in Division 1 of Part 5 of the Act. 6Section 82 of the Act is as follows: "82 Persons subject to warrants may be apprehended (1) Subject to subsection (2), the person named in a warrant issued in a State may be apprehended in another State. (2) This section does not apply in relation to a person who is in prison. (3) The person may be apprehended by: (a) an officer of the police force of the State in which the person is found; or (b) the Sheriff of that State, or any of the Sheriff's officers; or (c) a member or special member of the Australian Federal Police. (4) It is not necessary to produce the warrant when the person is apprehended. (5) Even though a person has been released under subsection 83(3), (4) or (7), the person may be re-apprehended under the same warrant. (6) The warrant or a copy of the warrant must be produced when the person is re-apprehended." 7The extradition order of the New South Wales Magistrate was made pursuant to s 83 of the Act. The relevant portions are as follows: "83 Procedure after apprehension (1) As soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended. (2) The warrant or a copy of the warrant must be produced to the magistrate if it is available. (3) If the warrant or a copy of the warrant is not produced, the magistrate may: (a) order that the person be released; or (b) adjourn the proceeding for such reasonable time as the magistrate specifies and remand the person on bail or in such custody as the magistrate specifies. (4) If the warrant or a copy of the warrant is not produced when the proceeding resumes, the magistrate may: (a) order that the person be released; or (b) if reasonable cause is shown, adjourn the proceeding for such further reasonable time as the magistrate specifies and remand the person on bail or in such custody as the magistrate specifies. ... (8) Subject to subsections (10) and (14) and section 84, if the warrant or a copy of the warrant is produced, the magistrate must order: (a) that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies; or (b) that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant. (9) The order may be subject to other specified conditions. (10) The magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid. ... (13) An order of a magistrate under this section may be executed according to its tenor. (14) For the purposes of a proceeding under this section: (a) the magistrate may adjourn the proceeding and remand the person on bail, or in such custody as the magistrate specifies, for the adjournment; and (b) the magistrate is not bound by the rules of evidence; and (c) it is not necessary that a magistrate before whom the proceeding was previously conducted continue to conduct the proceeding. ..." 8Section 84 is as follows: "84 Additional provisions relating to persons under restraint (1) If a person is taken before a magistrate under section 83, the magistrate must, before dealing with the matter, make reasonable enquiries of the person to find out: (a) whether he or she is a person under restraint; and (b) if so, the State or States under whose law he or she is a person under restraint. (1A) If the magistrate is satisfied that the person: (a) is not under restraint; or (b) is under restraint only under the law of the State in which the warrant was issued; the following provisions of this section do not apply. (2) If the person informs the magistrate that he or she is on bail, the magistrate must, before dealing with the matter, make reasonable enquiries of the person to ascertain the reporting requirements (if any) to which the person is subject. (3) The person must not: (a) fail to answer the magistrate's enquiries under subsection (1) or (2); or (b) intentionally give a false or misleading answer to any of those enquiries. Penalty: $3,000. (4) If the person under restraint is not on bail: (a) the magistrate must: (i) adjourn the proceeding for such reasonable time, not exceeding 7 days, as the magistrate specifies; and (ii) remand the person: (A) on bail on condition that the person appear when the proceeding resumes; or (B) in such custody as the magistrate specifies for the time of the adjournment; and (iii) as soon as practicable after the adjournment, cause notice of the person's apprehension to be given, by audio link or fax, to the person in charge of the correction service of the State in which the person is under restraint; and (b) when the proceeding resumes: (i) the person so informed; and (ii) a supervisor of the person under restraint; may make submissions to the magistrate. (5) If the person under restraint is on bail, the magistrate may, on the application of: (a) any officer of the police force of any State; or (b) any member or special member of the Australian Federal Police; or (c) the person under restraint; adjourn the proceeding for such reasonable time, not exceeding 7 days, as the magistrate specifies. (6) If the magistrate adjourns the proceeding under subsection (5): (a) he or she must: (i) remand the person under restraint: (A) on bail on condition that the person appear when the proceeding resumes; or (B) in such custody as the magistrate specifies for the time of the adjournment; and (ii) if the person is subject to a requirement to report to an officer of a correction service of a State-as soon as practicable after the adjournment, cause notice of the person's apprehension to be given, by audio link or fax, to the person in charge of that correction service; and (iii) if the person is subject to a requirement to report to the police in a State other than the State in which he or she is apprehended-as soon as practicable after the adjournment, cause notice of the person's apprehension to be given, by audio link or fax, to a police officer at the police station at which the person is required to report; and (b) when the proceeding resumes: (i) the person's supervisor; and (ii) any officer of the police force of any State; and (iii) any member or special member of the Australian Federal Police; may make submissions to the magistrate. (7) If a person under restraint who is named in a warrant is remanded on bail under an order made under paragraph 83(8)(a), it is a condition to which the grant of bail is subject that the person must return as soon as practicable to the State in which he or she was under restraint. (8) Where an order is made under paragraph 83(8)(b) in relation to a person under restraint, a magistrate may make orders relating to the return of the person, in such custody or otherwise as the magistrate specifies, to the State in which he or she was under restraint. (9) The regulations may provide that, for the purposes of this section, the holder of a specified office in a State is taken to be the person in charge of the correction service of the State. (10) In this section: supervisor, in relation to a person under restraint, means a person who, under the law of a State or the order of a court, supervises compliance with the order or restriction to which the person under restraint is subject." 9The present proceedings are brought pursuant to s 86 of the Act. The relevant portions are: "86 Review (1) If an order has been made under section 83, the apprehended person or a person to whom the warrant was directed may apply to the Supreme Court of the State in which the order was made for review of the order. ... (7) The review is to be by way of rehearing. (8) The Supreme Court may confirm, vary or revoke the order. (9) If the order is revoked, the Supreme Court may make a new order. ... (11) The order as confirmed or varied, or the new order, may be executed according to its tenor. (14) For the purposes of a review under this section, the Supreme Court of a State is not bound by the rules of evidence. ..." Evidence 10Because these proceedings are a rehearing, I considered it appropriate that evidence be placed before me. 11The applicant called as a witness a Federal Agent who is the case officer with regard to the allegation in Victoria. He led evidence from him for some time about the circumstances of the investigation, the arrest of the applicant, the application for the warrant, and surrounding events. After the adverse evidentiary ruling, the applicant did not seek to place any further evidence before the Court. 12The respondent tendered a copy of the Victorian warrant. Submissions of the applicant 13Although, as I have said, the application was withdrawn, and no oral submissions were made by the applicant, I consider that I should examine his written submissions. 14The applicant submits that the making of the extradition order was an abuse of process and that therefore the order should be revoked. 15He submits that the making of the extradition order was an abuse of process for two reasons. 16First, he submits that there were deliberate delays on the part of the police and others. Those delays occurred during a period of some years when he was incarcerated in New South Wales and trying to get all pending criminal charges resolved. Throughout the whole of that time, the present charge that founds the warrant issued in Victoria was not brought to his attention. 17In support of this contention, he relies upon a letter written by him addressed to "Commissioner of AFP" and dated 15 January 2009. Although it was not formally tendered today, I consider that I should refer to it. It is not necessary to reproduce the letter in its entirety. In that letter, the applicant requests the Commissioner of the Australian Federal Police to contact the Directors of Public Prosecutions of the Commonwealth and New South Wales in order to include all pending charges in his sentencing hearing for unrelated matters on 6 February 2009. 18The current charge of conspiracy to possess a border controlled drug was not, of course, included in that sentencing hearing. 19In circumstances where the applicant has sought to include all charges at his sentence hearing in 2009 and subsequently spent years in gaol, the applicant submits that the bringing of a fresh charge in 2012 constitutes an abuse of process. 20The second basis upon which the applicant submits that there is an abuse of process is that the warrant was issued for an improper purpose. He submits that, in truth, the charge and the warrant are not for the purpose of putting him on trial. Rather, he submits that they have the purpose of pressuring him into becoming a witness for the Crown against another person in other criminal proceedings in Victoria. Legal principles 21The legislation and the case law with respect to it demonstrates that the function of a magistrate in these circumstances is very circumscribed. So is my function. 22A magistrate in the State that is asked to make the extradition order is obliged to make that order unless satisfied that the warrant is invalid: see ss 83(8) and 83(10) of the Act. In the present review proceedings, which are to be by way of rehearing, the powers of this Court are no greater than the powers conferred on the Local Court by the Act. In that regard, see Berichon v Chief Commissioner, Victoria Police [2007] VSC 143. 23It follows that the only issue for determination in these proceedings is whether the warrant that founded the extradition order is invalid. If it is invalid, the applicant is entitled to succeed. However, the tide of authority is to the effect that that question does not require any consideration of whether the issuing of the warrant by the Victorian Court is or was an abuse of process. In other words, the question of abuse of process is for a court of competent jurisdiction in Victoria, not New South Wales; see R v Lavelle (1995) 82 A Crim R 187; Butler v Commissioner of Police [1997] NSWSC; Berichon v Chief Commissioner, Victoria Police; and Rodgers v Chief Commissioner of Victoria Police [2012] VSC 305. 24In my judgment of 6 November 2012, in which I refused the issue of three subpoenas drafted by the applicant, I noted at [5] that there was a suggestion to the contrary from a single Judge of the Supreme Court of South Australia. In Loveridge v Commissioner of Police for South Australia [2004] SASC 195; (2005) 89 SASR 72 it was held that a magistrate has a power to refuse to make an order enforcing an arrest warrant issued in another State on the basis of abuse of process in the issuing State. However, as I indicated then, I do not consider that that proposition conforms with the weight of authority. Accordingly, I respectfully decline to follow what was said in that decision. 25In short, the enquiry is to be confined to whether the warrant is invalid. Accordingly, I propose not to consider the alleged abuses of process emanating from Victoria and relied upon by the applicant, for the purposes of determining the validity of the warrant. 26The applicant has not pointed to any defect in the warrant that establishes that it is invalid. There is nothing on its face that suggests that it is defective. 27In Gummer v Commissioner of Police [1995] 1 Qd R 346; (1994) 71 A Crim R 140, the Queensland Court of Appeal expanded the concept of invalidity of a warrant beyond mere invalidity on its face. But the facts in that matter were exceptional, featuring a concession by the prosecutor that the Court found had the effect of showing that the offence could not be made out on the evidence. No such concession was made in the instant proceedings, and I do not consider that that decision provides any assistance to the applicant in this case. 28In short, I do not consider that the applicant has demonstrated that the warrant that founds the extradition order is invalid. It follows that the legislation requires me to make an order giving effect to the extradition of the applicant. In light of that, I propose to confirm the extradition order, subject to some logistical alterations. The respondent has provided me with proposed orders. Prerogative Relief 29As noted by me a moment ago, the applicant has sought prerogative relief, pursuant to s 69 of the Supreme Court Act 1970. However, I consider that reliance upon that form of relief misconstrues the nature of the present proceedings. The present application is a rehearing of the proceedings before the Local Court, determination of which is not founded upon identifying any errors of law in the Court below. In contrast, an application for prerogative relief is an exercise in finding errors of law. Because it is a rehearing, I have considered the matter afresh and will be making my own orders. Accordingly, I am not of the view that it is appropriate to grant prerogative relief in this case. 30However, for abundant caution and against the possibility that I am wrong in that regard, I will briefly deal with the relief sought by the applicant. I do not discern any basis upon which it could be said that the Magistrate was led into error. I have held that whether the issue of a warrant is an abuse of process does not inform the issue of an extradition order. Accordingly, any failure on the part of the Magistrate to consider whether there was such an abuse of process would not provide a basis upon which prerogative relief could be granted against the orders of that Magistrate. 31I decline to grant the orders sought in the application of Mr Visser. Orders (1)The order made on 20 August 2012 by Magistrate Farnan is confirmed, except as to dates and times. (2)The applicant, John Visser, is to be remanded in the custody of the NSW Department of Corrective Services until 9am on Tuesday 20 November 2012, at which time he is to be surrendered to the custody of the Australian Federal Police, to then appear at the Melbourne Magistrates Court no later than 10am on Wednesday 21 November 2012. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2012