NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.
All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Oates v Attorney-General [2002] FCA 347

ANTONY GORDON OATES v ATTORNEY-GENERAL & COMMONWEALTH OF AUSTRALIA

N 370 of 2001

O’LOUGHLIN, WHITLAM and CONTI JJ

28 MARCH 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 370 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANTONY GORDON OATES

APPELLANT

AND

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGE:	O’LOUGHLIN, WHITLAM and CONTI JJ
DATE:	28 MARCH 2002
PLACE:	SYDNEY

CORRIGENDUM

In paragraph 78 of Conti J’s Reasons for Judgment, the quote attributed to Lord Millett beginning with the words “… On that basis, all the alleged actings…” and ending with the words “… prison on that charge”, should be deleted and replaced with the following:

“Crimes which are the natural subject of extradition proceedings are almost invariably committed abroad and as such are usually outside the jurisdiction of the English courts, however widely that expression may be construed. So the conduct which constitutes an extradition crime does not consist of acts which actually were committed in England or within English jurisdiction, but rather conduct which would constitute a crime under English law if the acts in question were so committed. The test, therefore, is a hypothetical one, which calls for some degree of transposition.

In R v Governor of Pentonville Prison,Ex p Tarling (1978) 70 Cr App R 77 Lord Keith of Kinkel stated, at p 136:

‘In considering the jurisdiction aspect it is necessary to suppose that England is substituted for Singapore as regards all the circumstances of the case connected with the latter country, and to examine the question whether upon that hypothesis and upon the evidence adduced the English courts would have jurisdiction to try the offences charged.’

This guidance was followed by the Divisional Court in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. Lloyd LJ explained that only the acts which took place in the requesting state (Hong Kong) were to be treated as having taken place in England. All else remained as it in fact happened.

For my own part, and subject to one point which I will mention in a moment, I think that this is the correct way to effect the transposition. The principle at work is mutatis mutandis. Given that the court is concerned with an extradition case, the crime will not have been committed in England but (normally) in the requesting state. So the test is applied by substituting England for the requesting state wherever the name of the requesting state appears in the indictment. But no more should be changed than is necessary to give effect to the fact that the court is dealing with an extradition case and not a domestic one. The word “mutandis” is an essential element in the concept; the court should not hypothesise more than necessary.”

I certify that the preceding paragraph is a true copy of the Corrigendum of the Honourable Justice Conti.

Associate:

Dated: 2 April 2002

Top