FEDERAL COURT OF AUSTRALIA

O’Donoghue v Honourable Brendan O’Connor [2012] FCAFC 47

THE COURT ORDERS THAT:

1.        The appellant’s renewed application for an adjournment be dismissed;

2.        The appeal be dismissed; and

3.        The appellant pay the respondent’s costs to be taxed if not earlier agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1        This appeal by Mr O’Donoghue (the appellant) concerns his application for review of the decision of the respondent (the Minister) that the appellant be surrendered to Ireland pursuant to s 22 of the Extradition Act 1988 (Cth) (the Act). His application for review was dismissed by the primary judge on 29 August 2011. See O’Donoghue v Honourable Brendan O’Connor (No 2) [2011] FCA 985 (Reasons No 2).

2        It is not possible to provide a succinct statement of the issues which arise for determination in the appeal owing to the lengthy history of this litigation. It will be necessary to summarise that history but first it is desirable to note briefly the scheme of decision-making under the Act.

THE SCHEME OF THE ACT

3        The Act provides for what has been described as “four stages in extradition proceedings” those being, commencement, remand, determination by a magistrate of eligibility for surrender and executive determination, subject to legislative constraints, that the person be surrendered: Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 628 [29] per Gleeson CJ applying Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389 per Beaumont, Einfeld and ML Foster JJ. The provisions in the Act relevant to the issues in this appeal can be referred to briefly.

4        Section 12 of the Act provides that where a country, such as Ireland, that has an extradition treaty with Australia, makes an application to a magistrate in the statutory form, and the magistrate is satisfied on evidence that, relevantly, a warrant is in force for a person’s arrest in that country in relation to offences against its laws, the magistrate must issue a warrant for the person’s arrest and send a report to the Attorney-General.

5        Section 16(1) of the Act provides that where the Attorney-General receives an extradition request, from a foreign state, such as Ireland, the Attorney-General may, in his or her discretion, by notice state that the request has been received.

6        Section 19 of the Act provides for the determination of eligibility for surrender by a magistrate. Under s 21 of the Act an order of a magistrate under ss 19(9) or (10) may be the subject of a review by the Federal Court or the Supreme Court of a State or Territory.

7         The reviewing court under s 21 is required to determine whether the decision of the magistrate was right or wrong and, if wrong, what decision should have been made by the magistrate. The reviewing court determines the rights and liabilities of the parties to the review proceedings. Exercising judicial power, it determines finally the matters in issue at that stage of the extradition process: Pasini v United Mexican States (2002) 209 CLR 246 at 255.

8        Section 22 of the Act provides for a determination by the Minister as to whether a person, who has been found by a magistrate to be an eligible person, is to be surrendered. Subsection 22(3) specifies the matters of which the Minister must be satisfied if the eligible person is to be surrendered. Importantly, the matters in respect of which the Minister must be satisfied do not include the correctness of decisions made at previous stages in the extradition process.

9        It may also be noted that the decisions of the Attorney-General under ss 16 and 22 are not subject to review under the Act. Decisions under the Act are also excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): see Sch 1, para (r). The decisions are, however, subject to the review pursuant to constitutional writs under s 75(v) of the Commonwealth Constitution and s 39B of the Judiciary Act 1903 (Cth). Those writs lie for jurisdictional error on the part of the Minister.

BACKGROUND

10        The primary judge conveniently summarised some important aspects of the procedural background at (Reasons No 2 [7]-[10] and [14]-[18]):

7    The [appellant] is a citizen of the Republic of Ireland (Ireland) who first arrived in Australia in 2002 as the holder of a visitor visa. On 15 November 2002 the [appellant] was granted a Subclass 457 Business (Long Stay) visa, and on 14 November 2003 he applied for an Employer Nomination (Residence) Subclass 856 visa.

8    On 24 March 2004, a Judge of the District Court of Ireland issued 16 warrants for the arrest of the [appellant] in relation to eight offences of obtaining property by false pretences and eight offences of fraudulent conversion (the extradition offences).

9    On 26 May 2004 Ireland requested the extradition of the [appellant] from Australia in relation to the extradition offences.

10    On 21 December 2004 a provisional arrest warrant was issued under s 12(1) of the Extradition Act. The [appellant] was arrested in Perth on 21 December 2004 and was granted bail by Magistrate Brown on 24 December 2004.

…

14    By application dated 18 November 2005 the [appellant] brought a Constitutional challenge in the Federal Court to the exercise of powers by a magistrate under the Extradition Act. On 12 September 2006, Siopis J dismissed the application: Zentai v Republic of Hungary (2006) 153 FCR 104. An appeal to the Full Court of the Federal Court was dismissed on 16 April 2007: Zentai v Republic of Hungary (2007) 157 FCR 585. The [appellant] was granted special leave to appeal, and the High Court ultimately dismissed the [appellant’s] appeal on 23 April 2008: O'Donoghue v Ireland (2008) 234 CLR 599.

15    On 3 April 2009, Magistrate G N Calder, sitting in the Western Australian Magistrates Court at Perth, determined, pursuant to s 19(2) of the Extradition Act, that the [appellant] is an eligible person for surrender to Ireland and issued a warrant ordering that the [appellant] be committed to prison pursuant to s 19(9) of the Extradition Act (the s 19 decision).

16    On 3 April 2009 the [appellant] sought review of the s 19 decision pursuant to s 21(1) of the Extradition Act. The application was dismissed by Barker J on 9 June 2009: O'Donoghue v Ireland [2009] FCA 618. His Honour made orders, inter alia, that the [appellant] was eligible for surrender, within the meaning of s 19(2) of the Extradition Act in relation to the extradition offences and that the order made by the Magistrate pursuant to s 19(9) of the Extradition Act on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act.

17    On 19 June 2009 the [appellant] instituted an appeal from Barker J's judgment to the Full Court of the Federal Court. The [appellant’s] appeal was dismissed by the Full Court of the Federal Court on 22 December 2009: O'Donoghue v Ireland (2009) 263 ALR 392.

18    The [appellant] sought special leave to appeal from the Full Court's judgment of 22 December 2009. On 17 June 2010 the High Court dismissed the [appellant’s] application for special leave to appeal: O'Donoghue v Ireland [2010] HCASL 152.

11        On the 22 March 2011 a submission prepared by officers of the Department of the Attorney-General was presented to the first respondent for his consideration under s 22(2) of the Act. That submission recommended that the appellant be surrendered.

12        On 23 March 2011 the first respondent determined under s 22(2) of the Act that the appellant be surrendered to Ireland and issued a surrender warrant under s 23 of the Act for the appellant’s extradition.

13        On 25 March 2011 the appellant commenced proceedings in the Federal Court for review of the Minister’s decision under s 22 of the Act.

14        On 13 June 2011 the hearing of the appellant’s review proceedings began before the primary judge. On this occasion the appellant was not present in court, apparently as a result of an administrative oversight. He was, however, represented by Senior Counsel.

15        The appellant’s review application was further heard by the primary judge on 2 and 21 July 2011 when the appellant represented himself. On 29 July 2011 the appellant filed a minute of proposed amendments to his grounds of review. On 10 August 2011 the appellant’s arguments for judicial review were further heard and argument ensued in relation to the appellant’s application to amend his grounds of review.

16        On 29 August 2011 the primary judge dismissed the appellant’s application to amend his grounds of review. His Honour’s reasons for that decision are recorded in O’Donoghue v Honourable Brendan O’Connor [2011] FCA 813. His Honour also dismissed the appellant’s application for review of the s 22 decision of the Minister for the reasons given in Reasons No 2.

17        On 16 September 2011 the appellant filed a notice of appeal and an application for an injunction restraining the authorities from acting upon the surrender warrant until the determination of his appeal to this Court.

18        On 5 October 2011 the appellant filed an application that he be released on bail pending the hearing of his appeal.

19        On 6 October 2011 the primary judge granted an injunction restraining the first respondent from removing the appellant from Australia pending the determination of his application for an injunction until the determination of the appeal. And on 19 October 2011 another judge extended the injunction granted by the primary judge until the determination of the appeal. The appellant’s application for bail was adjourned to 6 March 2012, the date of the hearing of the appeal.

20        On 6 February 2012 the appellant filed an amended notice of appeal and an application seeking orders that the warrants under s 19(9) and s 23 of the Act be stayed and that the appellant be released on bail.

21        On 12 February 2012 the appellant lodged yet another amended notice of appeal and a further application seeking orders that the warrants under s 19(9) and s 23 of the Act be stayed and that the appellant be released on bail.

DECISION OF THE PRIMARY JUDGE

22        There were nine grounds of review raised before the primary judge. His Honour addressed each of these grounds of review, even though, as his Honour noted in Reasons No 2 at [2], Senior Counsel for the appellant conceded that the written submissions filed with the Court (which were almost entirely drafted by the appellant personally) were without merit save for a point concerning the United Nations Convention on the Rights of the Child.

23        The first of the appellant’s grounds dealt with by the primary judge was that the then Attorney-General made a jurisdictional error in issuing the s 16 notice. The primary judge explained and dealt with this issue at Reasons No 2 [40]-[53]. Because it loomed large in the appellant’s argument before this Court, it is desirable to set out his Honour’s reasons at length. His Honour said:

40    The applicant advances two reasons for contending that the s 16 notice was invalidly issued. First, he asserts that the then request for extradition came from Ireland on 24 March 2005, and that consequently the Attorney-General could not have been satisfied that a request for extradition had been made prior to issuing the s 16 notice. Second, the applicant submits that he was not an "extraditable person" at the time the decision to issue the s 16 notice was made, and the issuing of the s 16 notice was therefore beyond the Attorney-General’s statutory power.

41    The applicant's contention that the actual request for extradition from Ireland came on 24 March 2005 appears to be based on the statement pursuant to Article V of the Treaty signed by Mr Barry Donoghue.

42    The expression "extradition request" is defined in s 5 of the Extradition Act as follows:

extradition request means a request in writing by an extradition country for the surrender of a person to the country.

43    A request in writing by Ireland for the surrender of the applicant to Ireland was received by Australia on or about 26 May 2004.

44    The statement pursuant to Article V of the Treaty signed by Mr Barry Donoghue dated 24 March 2005 is clearly on its face not a request for extradition, but is a document in support of Ireland’s request for extradition: O'Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 at [26].

45    Moreover, the submission that the s 16 notice was invalid because an extradition request had not been received from Ireland before the notice was issued was raised by the applicant in his bail application in other proceedings in this Court and was rejected by McKerracher J: O'Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 at [26]-[31].

46    I am of the opinion that the applicant’s attempt, under this ground, to revisit the same contention as to the invalidity of the s 16 notice is an abuse of process when that issue was disposed of in those other proceedings, and there being no new evidence: Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 per Carr and Sundberg JJ at 323.

47    Nor is there any substance in the applicant's claim that the s 16 notice was invalid because he was not an "extraditable person". This submission depends for its force upon the success of the former submission. By s 6 of the Extradition Act, a person is an extraditable person if the requirements of paras (a), (b) and (c) are satisfied. The applicant does not contend that any of those paragraphs were not satisfied at the time the then Attorney-General issued the s 16 notice. Rather, the applicant submits that he was not an extraditable person "because a valid extradition request had not been made and the Attorney-General could not reasonably be of the opinion that there was not an extradition objection in relation to any extradition offence."

48    Paragraph 16(2)(b) of the Extradition Act provides that the Attorney-General shall not give a notice under that section "if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought."

49    There is no evidence that the then Attorney-General was of the opinion that there was an extradition objection in relation to all of the extradition offences for which the applicant's surrender was sought. Nor has the applicant adduced any evidence to show that there was, as at 5 January 2005, evidence or material before the then Attorney-General which meant that as a matter of law he was bound to form the opinion that there was an extradition objection in relation to all of the extradition offences for which the applicant's surrender was sought.

50    Further, and in any event, it is an abuse of process for the applicant to now bring a challenge to the s 16 notice. Such an application is inconsistent with the result of the adjudication, adverse to the applicant, in the earlier s 21 proceedings to which I have referred: Brock v Minister for Home Affairs (2008) 170 FCR 434 per Lindgren and Tracey JJ at [59].

51    The application challenging the s 16 notice is also futile as "the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached": Brock per Lindgren and Tracey JJ at [77]; Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 at [80].

52    A Magistrate exercising functions under s 19 of the Extradition Act proceeds on the basis that the person whose surrender is sought is an 'extraditable person': Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 539 (Brennan CJ, Dawson and McHugh JJ) and 541 (Toohey J). In Brock, Lindgren and Tracey JJ stated, at [77], that

the magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister's having been previously satisfied that it was met for s 16 purposes.

53    Ground 1, for all these reasons, is not made out.

24        The second and third grounds considered by the primary judge were that the Magistrate’s determination that the appellant was an “eligible person”, and the order committing the appellant to imprisonment, were beyond jurisdiction, unlawful and void. The appellant’s submissions in support of this ground were based upon the contention that the s 16 notice was not a valid notice. As the first ground failed, so, consequentially, did the second and third grounds.

25        The fourth ground was that the Minister erred in law “in failing to give proper, realistic and genuine consideration” as to whether, in the exercise of his discretion he should refuse extradition having regard to: the provisions of the Act and the Treaty on Extradition between Australia and Ireland done 2 September 1985 (‘the Treaty’); the political nature and surrounding circumstances of the request for extradition; the procedures which had previously occurred in the extradition process; and all other relevant factors. The appellant submitted that “after reading the documentation which he had submitted, ‘no reasonable Minister could have found that there was no ‘extradition objection’, that Article III of the Treaty was not invoked, and that there was not a real risk that the applicant's fundamental human rights would be violated by the requesting State’” (Reasons at [69]). On this basis the appellant contended that it could inferred that the Minister had “failed to account for these circumstances,” and that it followed that the Minister took into account irrelevant considerations, namely, the long-standing “policy” that the Minister would not refuse extradition in making the decision to surrender the applicant under s 22 of the Act (Reasons at [69]). The primary judge rejected this ground as being without substance. His Honour’s reasons for doing so also dealt with Grounds 4A and 4B.

26        Ground 4A (which was considered in conjunction with Ground 4), that the appellant has a valid extradition objection under 7(c) of the Act that was not properly considered by the Minister, also failed. As with ground 4, the primary judge noted that the s 22 submission took into account the appellant’s representations in relation to possible prejudice at his trial in terms of the extradition objection set out at s 7(c) of the Act. His Honour held that (Reasons at [76]-[77]):

76    …[n]otwithstanding the representations made by the applicant and the material he provided, the Department was entitled to express the view at [66] of the s 22 submission that it did not possess any information suggesting that the applicant would be prejudiced at trial for any of the reasons set out at s 7(c) of the Extradition Act. It was open to the Minister, who had all the applicant’s representations before him to similarly conclude that he was not satisfied that there was an extradition objection under s 7(c) of the Extradition Act. The Minister was entitled to reject the applicant’s contentions to the contrary as being otherwise unsupported. The Minister, on the other hand, may have accepted the applicant’s submissions in this respect despite the Departmental comment. As a fact the Minister rejected the applicant’s submissions.

77    There is, accordingly, no basis for the applicant's contention that the Minister "failed to give a fair, properly reasoned and informed consideration" to his claim that any current proceedings against him might be prejudicially affected by the political bias against Catholic lawyers involved in the property market. The applicant has not demonstrated any jurisdictional error by the Minister in his consideration of whether there is any extradition objection in terms of s 7(c) of the Extradition Act.

27        Ground 4B was that the nationality of the appellant’s family should be considered as a basis for discretionary refusal under s 22(3)(f) of the Act. It was considered in conjunction with ground 4. The appellant submitted that the Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by the Act and the Treaty, he should refuse extradition, having regard to the fact that the appellant’s family are nationals of Australia, taken together with the time spent in Australia with his young, dependant family, the birth of his children in Australia and other relevant factors. In the alternative, the appellant contended that the Minister’s decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.

28        The primary judge noted that the appellant’s extensive representations and 130 pages of supporting material were placed before the Minister as Attachment D to the s 22 submissions. The appellant’s representations were summarised in the submissions. It was apparent from the terms of the submissions that the Minister was informed of the personal circumstances of the appellant and of his family. His Honour found that the Minister’s decision that the appellant should be surrendered notwithstanding these representations was not so unreasonable as to be explicable only on the basis that insufficient attention was paid to the appellant’s family’s circumstances. As the primary judge correctly said at [65] there is “no basis for the allegation that the Minister relied solely on the Department's submissions, the decisions in previous court proceedings, and a policy that Australia will not refuse extradition”.

29        The fifth ground of review considered by the primary judge was that the Minister erred in law and misdirected himself on a fundamental matter regarding the terms of Article III paras 1(a) and (b) of the Treaty, in that he failed to take into account relevant considerations which he was bound to consider, and thereby failed to properly exercise his jurisdiction under s 22 of the Act.

30        The primary judge noted (Reasons at [96]) that:

96    Article III relevantly provides that extradition shall not be granted (1(a)) if the offence for which extradition is requested is a political offence or an offence connected with a political offence or (1(b)) if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that his position may be prejudiced for any of those reasons.

31         His Honour observed that this ground, in substance, sought merits review of the Minister’s decision. Detailed representations in relation to these matters had all been set out in the s 22 submission to the Minister. The primary judge found that there was no basis for the appellant’s assertions that the Minister failed to have regard to the matters set out in paras 1(a) and (b) of Article III of the Treaty. Accordingly, this ground failed.

32        The sixth ground raised by the appellant was that the Minister failed to take into account relevant considerations when considering whether, in accordance with subsections 22(2) and (3) of the Act, and in particular s 22(3)(f), it would be oppressive and incompatible with humanitarian considerations to surrender him for extradition, given the length of time he and his family have been resident in Australia, the appellant’s health issues, the length of time since the offences were alleged to have been committed, and consequent difficulties which the appellant may have in presenting evidence in his defence and the lack of relative seriousness of the alleged offences when weighed against the time which the appellant has been in custody.

33        The primary judge noted that there was no evidence that the Minister had failed to take these matters into account. In any event, these were not matters which, even if established by evidence, were apt to establish jurisdictional error by the Minister, having regard to the Minister’s responsibilities under s 22 of the Act.

34        Ground 7 was based on the appellant’s assertion that the Minister made an error of law and fact and misdirected himself on a fundamental matter regarding whether the appellant was capable of being surrendered under the Act, and made a jurisdictional error, in terms of ss 22(3)(d) and 22(4), in that no speciality assurance had been given by Ireland in relation to the appellant, nor should Ireland be taken to have given a speciality assurance in relation to the appellant.

35        In this regard, his Honour noted (Reasons at [115]-[116]):

115    [The appellant] contends, somewhat obscurely, that no provision of the law of Ireland, or a provision of an extradition treaty in relation to Ireland, or an undertaking given by Ireland to Australia exists in relation to him and that he, after being surrendered to Ireland, will not, unless he has left or had the opportunity of leaving Ireland; be detained or tried in Ireland for any offence that is alleged to have been committed, or was committed, before his surrender other than the offences listed in subsections 22(4)(d)(i)-(iii) of the Act. Accordingly, he submits the Minister's decision was ultra vires in relation to s 22(2) and s 22(3)(d) and should be quashed.

116    It is common ground that, pursuant to s 22(3)(d) of the Extradition Act, Ireland must give a speciality assurance in relation to the applicant.

36        His Honour held that if, contrary to the Minister’s submission, the rules of speciality in the Treaty did not meet the requirements of the Act, it would be futile to remit the matter to the Minister for reconsideration as Ireland had advised that it would provide a speciality assurance in the specific terms of s 22(4). Accordingly his Honour refused to exercise his discretion in favour of a remittal to the Minister.

37        Ground 8 asserted that the Minister’s decision was flawed by illogical and irrational conclusions and his decision was so unreasonable that his exercise of discretion should be found to have miscarried and that he consequently exceeded his jurisdiction under s 22 of the Act. With respect to this ground, his Honour said that (Reasons at [121]):

121    The [appellant] submits that, in making his decision, the Minister proceeded to take into account a mistaken notion of comity and wrong premises regarding significant facts such as those regarding the applicant's migration status and proceedings before the courts, while omitting to have regard to other relevant propositions and distinctions, such as the applicant's dependants, the quasi-criminal nature and relative lack of seriousness of the alleged offences, and the surrounding political circumstances of the type of the alleged offences and the request and the media interest and allegations of police corruption in Ireland. He submits that the logical incoherence of the total reasoning process constitutes a failure by the Minister to exercise his jurisdiction under s 22 in a lawful and proper manner.

38        His Honour held that there was no prohibition against the appellant’s surrender. In any event, it was open to the Minister, on the material before him, to determine that the appellant be surrendered to Ireland.

39        Ground 9 concerned the Minister’s failure to give reasons. The appellant submitted in this regard that the Minister erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the appellant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination was of no legal effect.

40        The primary judge held that this ground failed. Even if there were a statutory obligation to provide reasons, and in his Honour’s opinion there was not, the failure to discharge that obligation did not of itself vitiate the s 22 decision of the Minster for jurisdictional error.

41        In the upshot, his Honour dismissed the application and ordered that the appellant pay the costs of the proceedings before him.

THE FIRST APPLICATION FOR AN ADJOURNMENT

42        When the matter was called on for hearing in this Court on 6 March 2012, Mr McIntosh of Counsel appeared for the appellant. Mr McIntosh sought an adjournment to enable Senior Counsel to be briefed to appear on some later occasion for the appellant.

43        The appellant, by his latest amended notice of appeal, sought to raise 24 grounds of appeal. Many of these grounds were ill-expressed or so wide as to be meaningless or sought to challenge administrative decisions other than the Minister’s s 22 decision which, as the learned primary judge noted, had been the subject of concluded litigation. The attempt to reargue issues which had previously been resolved is properly characterised as an abuse of process. Moreover, the parties had been directed to file written outlines of their arguments, but the appellant did not comply with that direction. The appellant had been afforded ample opportunity to prepare for the hearing given that the parties had been notified of the hearing date on 15 November 2011.

44        In these circumstances, Mr McIntosh was invited by the Court to identify those points in the appeal which were reasonably arguable on the appellant’s behalf. This invitation was made by the Court, not with a view to requiring Mr McIntosh to persuade the Court of the merit of any point, but with a view to justifying an adjournment of the hearing of the appeal to enable Senior Counsel to appear for the appellant. The Court took this course having regard to the undesirability of pointless delay especially given the appellant’s insistence upon attempting to re-argue the correctness of determinations which had previously been reviewed by the Courts.

45        Mr McIntosh submitted that there were three points which were arguable on the appellant’s behalf. The first of these was that insufficient regard had been paid by the Minister to the United Nations Convention and the Rights of the Child. When pressed on this point, with the absence of any evident reason to doubt that the Minister was alive to the appellant’s family’s circumstances, Mr McIntosh was not able to identify any arguable error in the reasons of the primary judge which dealt with this issue.

46        The second point raised by Mr McIntosh seemed to be that the matters alleged against the appellant are not offences under Irish law. This issue was dealt with in relation to the s 19 decision and determined by Barker J in O’Donoghue v Ireland [2009] FCA 618 and the Full Court of the Federal Court in O’Donoghue v Ireland (2009) 263 ALR 392. Mr McIntosh did not seek to press the point.

47        The third point raised by Mr McIntosh involved a number of complaints clustered around the assertion that the appellant was prejudiced by reason of the refusal of the primary judge to allow him an adjournment to consider, and make submissions in relation to, Ireland’s request for extradition dated 26 May 2004 when this document was made available at the hearing before the primary judge. The appellant sought to argue that the document was either irregular or evidence of “fraud” on the part of someone so that the whole extradition process up to and including the Minister’s s 22 decision was invalid. As has been seen, this argument was rejected by the primary judge as an abuse of process. In that regard his Honour was correct. The appellant was seeking to agitate a matter which was both res judicata and irrelevant to the considerations relevant to the exercise of the Minister’s discretion under s 22 of the Act.

48        Allied to these complaints was an assertion that the request for extradition which was made by the Irish Embassy in Australia was made without the authority of the Republic of Ireland. Mr McIntosh was not able to identify any basis for this assertion of a want of authority on the part of the Irish Embassy.

49        The Court did not consider that any of the three points raised by Mr McIntosh were fairly arguable. Nor were we persuaded by Mr McIntosh’s suggestion that an adjournment should be granted for no other reason than that some arguable point might emerge. The Court concluded that it had not been shown that the appellant would be prejudiced by the refusal of an adjournment to allow Senior Counsel to appear on a subsequent date and that further delay in the disposition of the appeal was not in the interests of justice having regard to the lack of utility in further delay.

50        Accordingly, the application for an adjournment was refused.

THE SECOND APPLICATION FOR AN ADJOURNMENT AND THE APPEAL

51        Once the Court had rejected Mr McIntosh’s application, the appellant appeared on his own behalf on the hearing of the appeal. Mr McIntosh was given leave to withdraw.

52        The appellant renewed his application for an adjournment citing the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292 (Dietrich) in support of his application. In Dietrich the High Court held that courts in Australia have the power to stay criminal proceedings that will result in an unfair trial. That power extends to a case in which legal representation is essential to a fair trial as will usually be the case where an accused person is charged with a serious offence. Where an accused is unrepresented through no fault of his or her own, the court should, in the absence of exceptional circumstances, adjourn, postpone or stay the trial until legal representation is available.

53        There are several points on which Dietrich is to be distinguished from this case. This is a civil, not a criminal case. While the appellant is in custody awaiting his return to Ireland, the proceedings in this Court are not concerned to establish his guilt of the charges alleged against him by Ireland. More importantly, the appellant was represented by Senior Counsel at the hearing below. Thereafter, the appellant instituted this appeal himself: it is he who seeks to call in aid the judicial power of the Commonwealth. The appellant having moved the Court by way of appeal it is not for him to insist that the appeal proceed at his convenience. Moreover, there is an element of unreasonableness in the appellant’s insistence upon seeking on this appeal to reopen decisions made at earlier stages in the extradition process.

54        The more is the appellant’s insistence unreasonable because, as the primary judge stated in Reasons No 2 at [2], his Senior Counsel had effectively conceded that the written submissions, drafted almost entirely by the appellant himself, and filed for the trial were, with one exception, without merit. The appellant now seeks to reagitate many of those matters on appeal. Such conduct amounts to an abuse of the process of the Court. That is because proceedings or contentions that are foredoomed to fail will constitute an abuse of process, regardless of the propriety of purpose of the person responsible for instituting and maintaining them: cf Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. As Gibbs CJ, Wilson Brennan and Dawson JJ said in Coulton v Holcombe (1986) 162 CLR 1 at 7:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework …

55        Points that have been conceded at trial, ordinarily, ought not to be revived in an appeal. It is elementary that a party is bound by the conduct of his case: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 4841 at 483; 60 ALR 68 at 71. The appellant, both on his own part, and with the limited assistance of Mr McIntosh, did not demonstrate any basis to suggest that the concession at trial of his Senior Counsel noted by the primary judge was other than soundly made. His Honour’s reasons which dealt with those issues, despite the concession, demonstrated as much.

56        The appellant persisted in urging the third point adumbrated by Mr McIntosh. The appellant persisted with the argument that the entire extradition process was invalid because there had not been a valid request for extradition, either because the request was affected by serious irregularity or because this irregularity betrayed fraud in relation to the request. In relation to these arguments, the appellant seeks leave to amend his notice of appeal to include three additional grounds of appeal. These are that the learned trial judge erred in;

1.    relying upon and allowing the affidavit of Shannon Cuthbertson to be admitted in the absence of any reasonable opportunity to respond by the applicant;

2.    denying the Applicant an opportunity to examine Shannon Cuthbertson or the author of the request for extradition dated 26 May 2004; and

3.    accepting the request for extradition from Ireland dated 26 May 2004 as it was issued by the Irish Embassy in Canberra and was without jurisdiction or power to bind the State of Ireland.

57        The affidavit of Ms Cuthbertson affirmed on 6 June 2011 annexed the Embassy of Ireland’s diplomatic note VOD/01 dated 26 May 2004 in which Ireland requested the appellant’s extradition. The note was produced at the hearing on 13 June 2011 in response to a request for its production. It had not previously been said to be relevant to any issue between the parties. Senior Counsel for the appellant did not object to Ms Cuthbertson’s affidavit, and did not seek to cross-examine her. Further, Senior Counsel for the appellant did not make any submissions to the effect that the Court should not accept the Ireland request for extradition dated 26 May 2004 on the basis that “it was issued by the Irish Embassy in Canberra and was without jurisdiction or power to bind the State of Ireland”.

58        As to the timing of the notice, the primary judge was correct in noting that a request in writing by Ireland for the surrender of the appellant was received by Australia on or about 26 May 2004 from the Irish Embassy in Australia and in rejecting the appellant’s contention that the request for extradition in fact came from Ireland only on 24 March 2005. As his Honour said, the document of 24 March 2005 was not a request for extradition but a document in support of its earlier request. See Reasons 2 [40]-[46] set out above.

59        As to the point that the request was beyond the authority of the Irish Embassy, no basis was identified to cast doubt on the Embassy’s authority. Moreover, on 22 December 2004, the Department of Foreign Affairs of the Republic of Ireland in Dublin wrote to the Australian Embassy there referring to “an Irish request for the extradition of [the appellant] … made via the Irish Embassy in Canberra under cover of Note (VOD/01) dated 26 May 2004”. The letter noted that the appellant had been arrested in Australia on 21 December 2004 on a provisional warrant pursuant to a request by the Irish police. The December 2004 communication confirmed the authority of the Irish Embassy in Canberra. These communications occurred prior to 5 January 2005 when the then Attorney-General signed the s 16 notice in respect of Ireland’s request for extradition of the appellant. It follows that the appellant’s argument is unsustainable.

60        Insofar as the appellant complains that he was not present in court at the hearing on 13 June 2011, notwithstanding that he had been brought into the precincts of the Court, the appellant made a written complaint to his Honour that he had suffered prejudice as a result of this. Consequently, the primary judge reconvened the hearing of the application to enable the appellant to make submissions as to the alleged prejudice. The matter came back before the primary judge on 7 July 2011, at which time the appellant made an oral application seeking an adjournment for three months to enable him to re-argue his application. It is hardly surprising that this application was refused. The appellant had earlier been represented by Senior Counsel who chose not to take any point about the date of the request when the matter had been before his Honour. There was no reason to think that the grant of an adjournment would make a bad point better.

61        The appellant had received a full and fair hearing in relation to all the grounds of his application. There was no basis for an adjournment. His Honour was right to refuse the appellant’s application.

62        We are unable to discern any prejudice to the appellant by reason of the refusal by the primary judge of the appellant’s motion for an adjournment of three months to enable him to re-argue his application. The appellant had been given ample opportunity to make any point that could fairly be made. The reality was that there was no point that could fairly be made.

63        As to the primary judge’s refusal to allow the appellant to amend Ground 1 of his grounds of review, the primary judge’s reasons for refusing leave to amend are set out in his Reasons for Judgment in O’Donoghue v Honourable Brendan O’Connor [2011] FCA 813. Those reveal no discernible error. The primary judge was not persuaded that any of the documents tendered by the appellant would affect the result of the appellant’s proposed ground of alleged fraud. The primary judge was right.

64        The appellant, unfortunately, seems to be unwilling or unable to accept that his challenge to the validity of the extradition process on the basis that it is “all a fraud” is overwhelmingly implausible, especially given the years of travail in which Ireland has been engaged to procure his return and the absence of any real reason for anyone to seek to perpetrate such a fraud. It may be that the appellant is motivated by a genuine subjective belief in the validity of the points he persists in arguing. However that may be, there is no objective basis for the contentions which he wishes to pursue.

CONCLUSION AND ORDERS

65        As we noted above, the application for an adjournment of the hearing of the appeal in which the appellant was represented by Mr McIntosh of Counsel was refused. After Mr McIntosh’s withdrawal, the appellant renewed his application for an adjournment. He did not succeed, where Mr McIntosh had failed, in articulating an arguable basis to challenge the decision of the primary judge. The appellant’s renewed application for an adjournment should be dismissed.

66        The appellant did not identify, and we are unable to discern, any reason to doubt that the decision of the primary judge was correct. Accordingly, the appeal must be dismissed.

67        The appellant must pay the respondent’s costs to be taxed if not earlier agreed.

68        At the hearing, the appellant asked the Court to extend the injunction currently in place. Having regard to the absence of merit in the appeal, we are not disposed to extend the operation of the injunction. It was in terms limited to expire on the determination of the appeal.

69        The appellant did not press his application for bail at the hearing of the appeal. The application for bail has no prospect of success given the failure of the appeal. There is no point in further adjourning that application. It should be allowed to lapse.

Associate:

Dated:    2 April 2012