Federal Court of Australia

Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58

ORDERS

THE COURT ORDERS THAT:

1.    The cross-appeal is allowed.

2.    The appeal is dismissed.

3.    The warrant of committal of the appellant dated 9 July 2021, issued by Magistrate Previtera pursuant to s 19(9) of the Extradition Act 1988 (Cth), is restored.

4.    The appellant is remanded in custody.

5.    The appellant pay the costs of the first, eighth and ninth respondents below and before the Full Court as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    These reasons concern an appeal and cross-appeal (and notices of contention) with respect to a decision of the primary judge in a case where the applicant, Mr Pauga, had been found to be eligible for surrender to the country of Samoa, after proceedings conducted by the primary magistrate under the Extradition Act 1988 (Cth). The proceedings before the primary judge commenced in July 2021, when Mr Pauga sought, inter alia, an order that he be released from custody or that a writ of habeas corpus issue “to show cause as to the lawfulness of [his] custody”. Those proceedings ultimately involved many separate claims by Mr Pauga about the conduct of each aspect of the extradition process asserting, as a result of each, that his detention was unlawful.

2    The primary judge allowed the application on the sole basis that Mr Pauga was not afforded procedural fairness at the hearing conducted by the primary magistrate pursuant to s 19 of the Extradition Act on 8 and 9 July 2021 (the s 19 hearing). His Honour set aside the warrant of committal of Mr Pauga dated 9 July 2021 (Warrant of Committal) and the matter was remitted for determination according to law.

3    Mr Pauga challenges that remittal, and the refusal by the primary judge of his challenges to other aspects of the extradition process. The eighth and ninth respondents, Samoa and the Commonwealth Attorney-General (referred to collectively as Samoa), challenge by cross-appeal the primary judge’s finding of procedural unfairness.

4    For the reasons below:

(a)    the cross-appeal is allowed;

(b)    Mr Pauga’s appeal is dismissed;

(c)    the Warrant of Committal issued by the primary magistrate pursuant to s 19(9) of the Extradition Act is restored;

(d)    Mr Pauga is remanded in custody.

Statutory scheme

5    In these reasons, all provisions referred to are those in the Extradition Act, unless expressly stated to the contrary.

6    Given the grounds of appeal, it is appropriate at the outset to outline the extradition process. It is described as involving four stages: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389 per Beaumont, Einfeld and Foster JJ; Liem v Republic of Indonesia [2018] FCAFC 135; 265 FCR 251 at [21] per Mortimer, Wigney and Lee JJ. First, the commencement of the extradition process: ss 12 and 16; second, the arrest of a person and remand in custody or on bail: s 15; third, the determination of whether a person is eligible for surrender, and a limited right of merits review by way of rehearing in this Court (which may also be appealed): ss 19 and 21 respectively; and fourth, the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered: s 22. Each stage involves a binary decision by which the process either ends, or progresses to the next stage or to the final surrender decision: Snedden v Minister for Justice [2014] FCAFC 156; 230 FCR 82 at [100].

7    Other than a review under s 21, the powers conferred are administrative: Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; 185 CLR 528 at 538 per Brennan CJ, Dawson and McHugh JJ.

First stage: commencement

8    As to the first stage, s 12 provides as follows:

12    Extradition arrest warrants

(1)    Where:

(a)    an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and

(b)    the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;

the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.

(2)    The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.

(3)    Where:

(a)    the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;

(b)    the person has not been arrested under the warrant; and

(c)    either:

(i)    the Attorney-General decides not to give a notice under subsection 16(1) in relation to the person; or

(ii)    the Attorney-General considers for any other reason that the warrant should be cancelled;

the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant.

(4)    A notice given under subsection (3) is not a legislative instrument.

9    In Matson (Roger) v Keenan [2016] FCA 1549 at [31], Rangiah J accurately described s 12 as follows:

Section 12 of the Act requires that the Magistrate be satisfied “on the basis of information given by affidavit” that the person is an extraditable person. If the Magistrate is so satisfied he or she “shall issue a warrant”. The Magistrate has no residual discretion to refuse to issue an arrest warrant. Therefore, the applicant’s ill health and allegations of dilatoriness in the prosecution were irrelevant to the Magistrate’s decision.

10    Section 16 provides as follows:

16    Notice by Attorney-General

(1)    Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.

Person must be extraditable person in relation to extradition country

(2)    The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

(3)    As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:

(a)    a copy of the notice; and

(b)    copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

shall be given to the person.

(4)    A notice given under subsection (1) is not a legislative instrument.

11    There is no challenge on the appeal to any aspect of the stage one process.

Second stage: arrest and remand

12    The second stage of the process is what occurs after arrest, which is governed by s 15:

15    Remand

(1)    A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested.

(2)    The person shall be remanded by a magistrate or eligible Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.

(3)    If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.

(4)    At any time before proceedings under section 15A, 18 or 19 commence in relation to a person (in this section called the transferee) who is on remand under subsection (2), the Attorney‑General may, by warrant in the statutory form:

(a)    where the transferee is in custody—direct a magistrate or eligible Judge to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory; or

(b)    where the transferee has been granted bail—direct a magistrate or eligible Judge to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate or eligible Judge in a specified State or Territory.

(5)    The transferee shall be remanded by a magistrate or eligible Judge in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.

(6)    A magistrate or eligible Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.

13    The construction of s 15 is in issue on this appeal and will be addressed in more detail when considering the relevant grounds.

Third stage: eligibility for surrender including review by way of rehearing

14    Stage three of the process is the determination under s 19, which is in the following terms:

19    Determination of eligibility for surrender

(1)    Where:

(a)    a person is on remand under section 15;

(b)    the Attorney‑General has given a notice under subsection 16(1) in relation to the person;

(c)    an application is made to a magistrate or eligible Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)    the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(2)    For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)    the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b)    where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents—those documents have been produced to the magistrate or Judge;

(c)    the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)    the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(3)    In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:

(a)    if the offence is an offence of which the person is accused—a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

(b)    if the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:

(i)    the conviction;

(ii)    the sentence imposed or the intention to impose a sentence; and

(iii)    the extent to which a sentence imposed has not been carried out; and

(c)    in any case:

(i)    a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii)    a duly authenticated statement in writing setting out the conduct constituting the offence.

(4)    Where, in the proceedings:

(a)    a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b)    the magistrate or Judge considers the deficiency or deficiencies to be of a minor nature;

the magistrate or Judge shall adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the deficiency or deficiencies to be remedied.

(4A)    If:

(a)    the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person; and

(b)    during proceedings conducted in relation to the person under this section, the Attorney‑General gives an amended notice under subsection 16A(2) in relation to the person; and

(c)    the amended notice specifies one or more extradition offences that were not specified in the original notice; and

(d)    the magistrate or Judge considers it necessary to give the person and the extradition country time to prepare for the conduct of proceedings under this section in relation to any of those extradition offences;

the magistrate or Judge may adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the person and the extradition country to prepare for the conduct of those proceedings.

(5)    In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate or Judge is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

(6)    Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.

(7)    A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a)    it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b)    it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:

(i)    in any case—of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or

(ii)    where the extradition country is a colony, territory or protectorate—of the person administering the Government of that country or of any person administering a Department of the Government of that country.

(7A)    Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).

(8)    Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

(9)    Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:

(a)    order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:

(i)    surrender under a surrender warrant or temporary surrender warrant; or

(ii)    release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5);

(b)    inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 21(1); and

(c)    record in writing the extradition offence or extradition offences in relation to which the magistrate or Judge has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney‑General.

(9A)    A magistrate or eligible Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.

(9B)    An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.

(10)    Where, in the proceedings, the magistrate or Judge determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate or Judge shall:

(a)    order that the person be released; and

(b)    advise the Attorney‑General in writing of the order and of the magistrate’s or Judge’s reasons for determining that the person is not eligible for surrender.

15    The meaning of “extradition objection” referred to in s 19(2)(d) is set out in s 7 as follows:

7    Meaning of extradition objection

For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

(a)    the extradition offence is a political offence in relation to the extradition country; or

(b)    the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or

(c)    on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or

(d)    assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or

(e)    the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

16    In determining eligibility for surrender, a state or territory magistrate or eligible judge of Division 2 of the Federal Circuit and Family Court of Australia, is confined to considering the matters specified in ss 19(1) and (2) and cannot have regard to other matters falling outside the ambit of those sections: Kainhofer at 538-539. This case only involved magistrates, such that further reference to eligible judges is unnecessary. In Kainhofer, the s 19 stage was described as follows at 537 (omitting footnotes):

A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b). The character of “the conduct of the person constituting the offence ... or equivalent conduct” must be ascertained under sub-s (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d). The term “extradition objection” is defined by s 7.

17    It is not the function of a magistrate hearing an application pursuant to s 19 to determine whether the requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 at [82] per Weinberg J; citing Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-413. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538. Rather, the magistrate must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539.

18    The extradition process in Australia involves no consideration or determination of whether the person whose extradition is requested by a foreign country is guilty or innocent of the extradition offence: Vasiljkovic v Commonwealth of Australia [2006] HCA 40; 227 CLR 614 at [33]-[34], per Gleeson CJ, and see ss 3(a) and 19(5).

19    Section 19(2)(d) requires a magistrate to be satisfied that there are not substantial grounds for believing that there is an extradition objection. This threshold is “evaluative in character” and requires that a real or substantial risk be demonstrated: Cabal v United Mexican States (No 2) [2000] FCA 445; 172 ALR 743 (Cabal (No 2)) at [15]; cited with approval by the Full Federal Court in Rahardja v Republic of Indonesia [2000] FCA 1297 at [38]-[39] and [47]. The onus is on the person resisting extradition to establish that there are substantial grounds for believing that there is an extradition objection, and while it does not require proof on the balance of probabilities, it “is not easily discharged”: Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [220].

20    The application of s 19 is also in issue in this appeal, and will be considered in further detail below.

21    Section 21 permits a statutorily limited merits review of the magistrate’s decision by way of rehearing, rather than judicial review limited to correcting error: Republic of South Africa v Dutton [1997] FCA 708; 77 FCR 128 at 136C. A s 21 review is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender: Dutton at 136. Section 21A, enacted in 2012, expressly provides that if a party to the s 19 proceedings was prevented from adducing evidence, and the court considers that they should have been permitted to adduce it, the court may receive that evidence as well as further evidence or submissions that directly relate to it. A s 21 review application was brought by Mr Pauga, and dismissed by the primary judge, a decision that is not challenged on appeal.

Fourth stage: Attorney-General’s surrender

22    As explained above, the final stage of the process, is that if s 19 is satisfied, a discretionary decision reposes with the Attorney-General as to whether a person, found to be eligible, should be surrendered: s 22.

Chronology

23    For factual context, it is convenient to reproduce, in its entirety, the chronology of events filed by Samoa (absent the Court Book references). That chronology accurately records the key events.

24    Mr Pauga did not challenge the chronology of events set out by Samoa, although his case was premised on focusing on certain events and/or characterising them differently (largely by way of granular detail that goes beyond the description of summarising key events). To the extent that additional detail is relevant, it is reflected in the reasons addressing the arguments advanced.

25    The chronology filed by Samoa was as follows:

26    Additional events referred to by Mr Pauga are that: on 24 August 2020, he was received into custody at the Arthur Gorrie Correctional Centre; and on that occasion, as well as on each subsequent date the matter was before a magistrate, Queensland Corrective Services was provided with a document entitled “Verdict and Judgment Record” (Form 44).

27    Aspects of these events are addressed in more detail below.

Primary judgment

28    It is sufficient at this stage to set out an overview of the reasons of the primary judge, with further detail included below where relevant to consideration of the grounds of appeal.

29    The case advanced by Mr Pauga before the primary judge raised many separate contentions as to why his detention was unlawful: see PJ [13]. His Honour noted that he had set out the history of the proceedings relating to the circumstances in which appeal grounds were identified in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. That judgment provided reasons for his Honour’s order that the summary of grounds filed by Mr Pauga on 6 June 2021 be removed from the Court file including, inter alia, that it was fundamentally defective. A further statement of grounds was filed shortly before the final hearing before the primary judge, which are not recited in the primary judgment: see PJ [13]. In that context, his Honour categorised Mr Pauga’s contentions into 12 propositions: see PJ [14].

30    On each of those propositions, his Honour concluded as follows:

(a)    The first proposition was that, contrary to the terms of s 15(1), Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest (with the consequence that he had never been lawfully detained). The primary judge found that proposition to directly contradict the conclusion reached by Crow J in a separate application for a writ of habeas corpus, meaning Mr Pauga was prevented from advancing it: see PJ [243]-[251] and see below at [64]-[65] and [137].

(b)    The second proposition was that, in making orders to remand Mr Pauga and directions and orders as to the conduct of the s 19 hearing, magistrates involved in the matter (including the primary magistrate) purported to exercise judicial power and thereby acted without any lawful authority. The primary judge found that this proposition depended on whether any of the magistrates approached the matter on the basis that they were exercising judicial power, in a way that impugned their actions. His Honour found that the primary magistrate had not done so, and any defect in the orders made by the magistrates who dealt with earlier remands would not entitle Mr Pauga to an order releasing him from custody: see PJ [252]-[264].

(c)    The third proposition was that certain of the instruments purporting to authorise Mr Pauga’s continuing detention in the period from his arrest to the s 19 hearing were not valid because of their contents, and because they were prepared and issued by persons other than the magistrates involved in the matter. The primary judge rejected that proposition, finding that, inter alia, the contents and nature of the charge sheet and Form 44s did not support it: see PJ [265]-[275].

(d)    The fourth proposition was that there was no remand ordered by the primary magistrate at the hearing on 30 October 2020, with the consequence that thereafter Mr Pauga had not been lawfully detained. Given the documents before the Court referring to the fact that Mr Pauga was remanded on 30 October 2020, the primary judge found that the alleged factual basis for this proposition was not established: see PJ [276].

(e)    The fifth proposition was that there was no jurisdiction to conduct the s 19 hearing unless Mr Pauga had been lawfully remanded. The primary judge explained that, on a proper construction of s 19(1)(a), the jurisdictional fact that must be established is that a decision to remand under s 15 has in fact been made (rather than it being necessary to establish that the remand was valid and lawful). Given that, on the evidence, by the time of the s 19 hearing Mr Pauga had been remanded as a matter of fact, the proposition was not established: see PJ [277]-[279].

(f)    The sixth proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because no application had been made for proceedings to be conducted pursuant to the provision in relation to Mr Pauga. The primary judge rejected the proposition, as well as the particulars said to sustain it: see PJ [280]-[286].

(g)    The seventh proposition was that the primary magistrate did not have jurisdiction to conduct the s 19 hearing because, before proceeding with it, her Honour did not form the view that Mr Pauga had been allowed reasonable time in which to prepare. The effect of this proposition was that the s 19 hearing should have been conducted in two stages, with the primary magistrate to consider the preconditions set out in s 19(1) in the first stage. The primary judge did not accept the proposition, concluding that the availability of proceeding in the manner suggested by Mr Pauga did not mean it was required in order for there to be a valid decision: see PJ [287]-[294].

(h)    In alternative to the seventh proposition, the eighth proposition was that the primary magistrate’s consideration of whether Mr Pauga had been allowed a reasonable time in which to prepare for the s 19 hearing was undertaken without affording him procedural fairness. The primary judge did not accept the proposition, finding that her Honour had expressly considered that Mr Pauga had a reasonable opportunity to prepare, and concluding that s 19(1)(d) was met: see PJ [294]-[360].

(i)    In alternative to the seventh and eighth propositions, the ninth proposition was that the primary magistrate’s view that s 19(1)(d) had been met was formed in a manner that was arbitrary and capricious. However, bearing in mind the significance of the provision’s character as a jurisdictional fact, the primary judge found that: the state of mind required to exist by s 19(1)(d) could not be formed arbitrarily or capriciously; and it could not be said that the opinion had not been formed genuinely and in a manner that was reasonably open: see PJ [361]-[368].

(j)    The tenth proposition was that the s 19 hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence, with the consequence that the primary magistrate did not consider whether there were any extradition objections. The primary judge found that Mr Pauga was refused an opportunity to adduce evidence, without being afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections (despite his failure to conform to directions that had been made). Accordingly, his Honour concluded that there had been procedural unfairness in this aspect of the conduct of the s 19 hearing and accepted this proposition: see PJ [369]-[384] and see below at [39].

(k)    The eleventh proposition was that the Warrant of Committal was invalid by reason of the form in which it was issued. The primary judge did not accept this proposition: see PJ [385]-[393].

(l)    The twelfth proposition was that s 15 does not authorise the remand of a person in prison. The primary judge did not accept this proposition: see PJ [394]-[398].

31    The application was considered by reference to those propositions rather than the grounds in the habeas corpus application directly. The application before the primary judge was therefore allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the s 19 hearing. That conclusion was based on his Honour’s finding that there had been a pre-emptory refusal of Mr Pauga’s application to adduce oral evidence. In circumstances where Mr Pauga had demonstrated jurisdictional error, but not that the primary magistrate lacked jurisdiction, the primary judge set aside the Warrant of Committal and remitted the matter for determination according to law: see PJ [10] and PJ [399]-[424].

32    The primary judge also gave reasons for refusing Mr Pauga’s application for bail: at PJ [426]-[440].

33    As adverted to above, on the same day the primary judgment was published, the primary judge also dismissed Mr Pauga’s s 21 review application, which had been heard at the same time as this proceeding: Pauga v Samoa [2022] FCA 1097. That judgment is not the subject of appeal: see the discussion at [64]-[65] below.

Grounds of appeal

34    The second amended supplementary notice of appeal is somewhat convoluted. Mr Pauga did not address his submissions to the grounds advanced in it. The essence of the grounds advanced can be summarised as contending that:

(a)    the primary judge erred by failing to order Mr Pauga’s immediate release upon quashing the decision of primary magistrate (ground 1);

(b)    the primary judge erred by finding at PJ [243]-[251] that the principles of res judicata, issue estoppel and abuse of process prevented Mr Pauga from arguing that he had not been brought before a magistrate as soon as practicable (ground 2);

(c)    Mr Pauga had not been on remand authorised under the Extradition Act (ground 3);

(d)    the relevant hearings before the magistrates were not as persona designata, but as a Court or members of the Court, or not detached from the Court (grounds 4, 5 and 10);

(e)    the primary judge erred by holding that the primary magistrate had jurisdiction to determine the application made to Magistrate Merrin, the seventh respondent (grounds 6 and 12);

(f)    the primary judge erred by holding at PJ [267] that a formal statement by a magistrate that the person shall be remanded would suffice to meet the requirements of s 15(2) (ground 7);

(g)    the primary judge erred by holding at PJ [273] that Mr Pauga bore the evidentiary burden of showing invalidity of the Forms 44 (ground 8);

(h)    the primary judge erred by ordering the remittal of the proceedings to a magistrate who had accepted the function and power to conduct proceedings pursuant to s 19 (ground 9);

(i)    the primary judge erred by finding at PJ [57] and PJ [277] that s 19(1)(a) requires only a remand in fact, as opposed to an “identified chain of identified remands” and Mr Pauga being on lawful remand (ground 11);

(j)    the proceedings pursuant to s 19 could not be conducted until all of the prerequisites set out in s 19(1) were established (ground 13);

(k)    the primary judge erred by finding that consideration of the matters set out in s 19(2) did not require a further hearing (ground 14); and

(l)    the primary judged erred at PJ [356] by holding that Mr Pauga did not attempt to persuade the primary magistrate that the parties had insufficient time to prepare and at PJ [359] by concluding that s 19(1)(d) was met (ground 15).

35    The grounds in the notices of contention are better reproduced than summarised:

(a)    the first notice of contention asserted:

The Federal Court should have upheld the Eighth and Ninth Respondent’s contention that there is a single remand for Section 19 Extradition Act 1988 (Cth) proceedings, and that the remand can be of unspecified duration (being until the relevant proceedings are completed), consistent with the decision of Ireland v Dunne [2021] FCA 245 at [65]-[67]. The Federal Court was wrong to hold otherwise at [36].

(b)    the second notice of contention asserts:

The Federal Court should have upheld the Eighth and Ninth Respondent’s contention that the requirement in section 15(1) of the Extradition Act 1988 (Cth) that a person arrested pursuant to an extradition warrant be ‘brought before’ a magistrate or eligible Judge does not require a person to be physically brought in person. The Federal Court was wrong to hold otherwise at [32].

36    The notice of cross-appeal can be summarised as contending that the primary judge erred by:

(a)    finding at PJ [383] that there was procedural unfairness in the conduct of the hearing by the primary magistrate on 8 and 9 July 2021: by refusing to allow Mr Pauga to adduce evidence concerning extradition objections (see PJ [37] and PJ [381]); and without any indication from the primary magistrate as to the seriousness of the subject matter and the significance of that refusal (see PJ [381]) (ground 1);

(b)    failing to consider and properly take into account the factual context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, for example, by characterising the decision of the primary magistrate as a refusal of the opportunity to lead evidence when Mr Pauga’s counsel had in fact sought an adjournment to prepare evidence (see PJ [371] and PJ [381]) (ground 2);

(c)    failing to consider and properly take into account the legal and statutory context surrounding any extradition objections that were to be raised at the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances, including by failing to consider the objective seriousness of a party alleging the existence of extradition objections (ground 3);

(d)    failing to take into account the eighth respondent’s submissions regarding Mr Pauga’s conduct during the s 19 hearing, including submissions that his decision not to call evidence prior to his request for an adjournment was a deliberate forensic decision (ground 4);

(e)    failing to consider the eighth respondent’s submission in relation to [82] of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (ground 5);

(f)    finding that Mr Pauga’s application for an adjournment was for the purpose of obtaining evidence to support an extradition objection, where that finding was not supported by the evidence (ground 6); and

(g)    not finding, in all the circumstances, that the primary magistrate afforded Mr Pauga procedural fairness at the s 19 hearing (ground 7).

37    The various grounds of appeal, cross-appeal and contention may be divided into the following categories by reference to the stages in the extradition process:

(a)    the second stage of the extradition process, involving being brought before a magistrate as required by s 15(1) and remand as required by s 15(2), and related issues, as raised by appeal grounds 1, 2, 3, 7, 9 and 11 and the two notices of contention (Section 19 hearing) (Being brought before a magistrate and remand);

(b)    the second and third stages of the extradition process and compliance with the executive jurisdiction bestowed on the primary magistrate personum designata and related issues, as raised by appeal grounds 4, 5, 6, 8, 10 and 12 (Personum designata); and

(c)    the third stage of the extradition process under s 19 conducted before the primary magistrate on 8 and 9 July 2021, as raised by the cross-appeal and appeal grounds 13, 14 and 15 (The hearing conducted pursuant to s 19).

38    Although out of order in relation to the different stages of the extradition process, it is convenient to first address the cross-appeal and the appeal grounds addressing the s 19 hearing that took place before the primary magistrate. That is because, if the cross-appeal is successful, the appeal must be dismissed unless Mr Pauga establishes one of his grounds of appeal. It also follows that if the cross-appeal is successful, ground 1 of the appeal does not arise for consideration because there would be no remittal, and therefore nothing to challenge in relation to it.

The hearing conducted pursuant to s 19

Cross-appeal

39    As explained above, the cross-appeal challenges the primary judge’s finding that there was procedural unfairness in the conduct of the s 19 hearing: see PJ [383]. It is helpful at this stage to recite that paragraph in its context:

[379]    … At no point was [counsel for the appellant] afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections despite the failure to conform to the directions that had been made.

[380]    The course taken by the Primary Magistrate was supported expressly by [counsel] for Samoa.

[381]    Therefore, Mr Pauga was refused an opportunity to adduce evidence without hearing from [counsel for the appellant] and without any indication in the reasons or other statements from the Primary Magistrate as to the seriousness of the subject matter and the significance of that refusal for the likely outcome.

[382]    This important point, though buried deeply under the weight of many unmeritorious ones and barely exposed during the course of the hearing, did not lose its significance as a result. As was observed recently, in Nathanson v Minister for Home Affairs [2022] HCA 26 by Kiefel CJ, Keane and Gleeson JJ at [33]: 'There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration': see also [47] (Gageler J). The other members of the court expressed an even firmer position when it came to the consequence of a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision-making process: see [76]-[77] (Gordon J), [121]-[127] (Edelman J).

[383]    In my opinion, there was procedural unfairness in this aspect of the conduct of the July Hearing. Further, the error was of a kind that gave rise to a realistic possibility of a different outcome because the submissions may have led to evidence being led on the important question of extradition objections.

40    In summary, Samoa alleges that the primary judge: erroneously concluded that Mr Pauga (the respondent to the cross-appeal) had been refused the opportunity “to adduce evidence concerning extradition objections”, when the evidence was in fact directed towards why more time was needed to prepare for the hearing; and failed to consider and properly take into account the factual and statutory context of the s 19 hearing in deciding the extent of the obligation of the primary magistrate to afford procedural fairness in the circumstances (and, as a result, erred in applying Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, a factually distinguishable case).

41    Samoa argues that, when those matters are properly considered, no error is established in the conduct of the primary magistrate and rather, her Honour’s refusal to receive the evidence was entirely reasonable. Samoa also submits that once the factual error as to the nature of the evidence is recognised, the primary judge’s conclusion that there was procedural unfairness is inconsistent with his Honour’s earlier conclusions at PJ [359] and PJ [367] (namely, that there was no procedural unfairness in the primary magistrate’s conclusion that Mr Pauga had reasonable time to prepare for the conduct of the proceedings under s 19): s 19(1)(d).

42    Given the nature of this cross-appeal, it is first necessary to consider in some detail the factual and statutory context in which the s 19 hearing occurred.

43    The chronology of events filed by Samoa is reproduced above at [25]. In that context, it is necessary to make some additional observations about the events that bear on the cross-appeal and grounds in relation to the s 19 hearing.

44    First, the evidence sought to be led by Mr Pauga before the primary magistrate was directed to why he needed more time to prepare for the s 19 hearing, rather than being evidence of extradition objections to be adduced at that hearing. This is readily apparent from, for example, the affidavit of Mr Finlayson before the primary judge, as he stated:

[104]    Had I been permitted to give evidence at the hearing on 8 and 9 July 2021, I was prepared to give evidence as to the “roadmap” document supplied to the court in February 2021 and the reasons why the Applicant had not had reasonable time to investigate the matters therein and to prepare for a s 19 EA hearing and to evidence and mount his extradition objections.

45    During the appeal, Mr Pauga conceded that was so. It follows that the evidence sought to be led can properly be characterised as directed towards obtaining an adjournment of the s 19 hearing on the basis that he had not had reasonable time to prepare for the hearing. Significantly, it also follows that the factual basis underpinning the primary judge’s conclusion as to the denial of procedural fairness, is incorrect. Given the lack of assistance given by counsel for Mr Pauga to the primary judge and the manner of and lack of clarity in his submissions before the primary magistrate, the error is understandable.

46    Second, and in that context, we accept Samoa’s submission that Mr Pauga had at least ten opportunities during the course of the extradition proceedings to produce evidence in respect to all relevant matters, including how long he needed to prepare for the s 19 hearing, and he did not take any of those opportunities. These opportunities occurred in the context where Samoa had, on 16 October 2020, filed and served its submissions and the material on which it relied in relation to the s 19 hearing.

47    The opportunities arose at least:

(a)    at the hearing on 11 December 2020, and by the directions made that day (which counsel for Mr Pauga confirmed suited his purposes, but did not comply with);

(b)    at the hearing on 12 February 2021 (during which counsel for Mr Pauga refused to confine his submissions to his failure to comply with directions and responding to Samoa’s submissions) and by directions made that day, which were again not complied with by Mr Pauga (including the direction to file and serve a written plan in affidavit form of the evidence, reports and witnesses that he intended to call);

(c)    at the hearing on 23 February 2021, which represented another opportunity for Mr Pauga to provide evidence or explain why he needed more time;

(d)    at the hearing on 12 March 2021 (during which Mr Pauga stated he was not ready to make the application for recusal of the primary magistrate despite the hearing being listed to hear that application) and by directions made that day (which were not complied with by him). It is noted that the s 19 hearing was listed on this occasion on dates almost four months later, after an exchange in which Mr Pauga’s counsel stated that he did not understand what “the extradition hearing” was, almost five months after Samoa filed their submissions and material;

(e)    at the hearing on 5 July 2021 (which was brought on at the request of Samoa after an email from Mr Pauga’s legal representatives on 30 June 2021 suggested vacating the s 19 hearing), noting that at this time Mr Pauga had not complied with the previous directions (a circumstance raised during the hearing by counsel for Samoa); and

(f)    at the first day of the s 19 hearing on 8 July 2021, during which counsel for Mr Pauga argued for an adjournment but did not indicate that he needed time to prepare evidence.

48    During the appeal hearing, Mr Pauga did not challenge Samoa’s submissions as to the number and nature of the opportunities provided to him. On none of those occasions did he either raise or provide evidence of the time he needed to prepare, the basis for the time required, the reason why directions as to the filing of evidence had not been complied with, or that he would seek to lead oral evidence at the s 19 hearing. Rather, at the various hearings he informed the primary magistrate (without prior notice or evidence), that he was making, or would be making, various applications. Mr Pauga informed the primary magistrate on 23 February 2021 that he intended to challenge various aspects of her Honour’s conduct of the hearings to date by filing a review in this Court (including her Honour’s ability to make directions as to the filing of affidavits for the s 19 hearing), and would do so by 12 March 2021. Tellingly, he failed to do so until 5 July 2021, only 3 days before the scheduled s 19 hearing.

49    We note that in Mr Pauga’s written submissions filed on 11 December 2020, he asserted without any supporting evidence that he required 24 to 36 months to prepare for the s 19 hearing. It was at that time the primary magistrate directed that he file, by 5 February 2021, a written plan as to the evidence, reports or witnesses to be relied on and a timetable as to when those would be available. That direction was made with his concurrence. The document he handed up to the primary magistrate at the hearing on 12 February 2021 (referred to as the “roadmap” and recited in full at PJ [154]) did not comply with the direction, as concluded by the primary magistrate at that hearing. As the primary judge observed at PJ [155], “[n]o lawyer acting reasonably could conceive of such a document as being a document of the kind that might comply with the direction made by the Primary Magistrate on 11 December 2020 (and acceded to by Mr Mancini, Mr Pauga’s counsel at the time)”. The reference to the roadmap document in Mr Finlayson’s affidavit, recited above at [44], which was to be the basis of his evidence at the s 19 hearing, is to this document, which did not comply with the primary magistrate’s directions.

50    We also note that during the s 19 hearing, on 9 July 2021, Mr Pauga submitted that he did not have the opportunity to address the roadmap when it was provided to the primary magistrate. That submission is entirely disingenuous. The transcript of the hearing on 12 February 2021 reflects that his counsel did address that document. Moreover, further opportunity was given to do so by the directions made on 12 February 2021 (set out in the chronology above), which he chose not to comply with.

51    In those circumstances, it is clear that: no further material was put before the primary magistrate at any stage of the proceeding that addressed the issues that were first raised in December 2020; and directions directed to those issues were not complied with.

52    Third, by a summary of the proceedings before the primary magistrate, it is difficult to fully capture the manner in which Mr Pauga conducted the proceedings before the primary magistrate without unduly lengthening these reasons. The primary judge summarised the various mentions before the primary magistrate at PJ [131]-[199], and the s 19 proceedings at PJ [200]-[242], reciting various aspects of the transcript. Mr Pauga makes no challenge to the accuracy of that summary (although Samoa questioned the completeness of the recitation of the correspondence in PJ [191], which is addressed below at [67]).

53    The approach of Mr Pauga’s counsel in the proceedings before the primary magistrate was described by the primary judge when considering his submissions as to bias, inter alia, at PJ [334] as follows:

… There was good reason [for the primary magistrate] to be frustrated. Mr Mancini persisted in disregarding the directions made without explanation. He made repeated oral applications without supporting materials or notice. He threatened applications to disqualify for bias but did not proceed with them, ultimately only advancing his bias submission on the basis that the Primary Magistrate had taken an active role in appearing through counsel in this Court and was required as a witness in these proceedings. Notably, the claim that there was a reasonable apprehension of bias in respect of the Primary Magistrate by reason of matters that occurred prior to the July Hearing was not pressed at the final hearing in the proceedings in this Court. He was disrespectful. He [was] feigning misunderstanding as to what was happening.

54    Although that description related to the application for bias, it is apt in relation to the conduct of the proceedings more generally. The primary judge also described Mr Pauga’s counsel at various times as advancing his submissions with “rudeness” and being “unhelpful and supercilious”: see, for example, PJ [72] and [302]. Those descriptions typify the conduct of Mr Pauga’s counsel before the primary magistrate, as reflected by the transcript of the s 19 hearing. In addition, his counsel acted in a bullish manner, refusing to accept the conduct of the proceedings by the primary magistrate if her Honour took an approach contrary to his submissions. In those circumstances, Mr Pauga’s counsel often ignored the primary magistrate’s decisions, attempted to reargue the position and, in doing so, alleged that he had been denied opportunity to make submissions, when such opportunities had been provided.

55    Fourth, Mr Pauga’s submission on this appeal that the directions made were without jurisdiction and contentious, as if to explain his breaches, is unacceptable. His evidence before the primary judge was that the failure to comply with the primary magistrate’s directions to file evidence was a forensic choice, it is to be assumed made on legal advice. Mr Pauga’s evidence before the primary judge was that he did not want to file material until the question of whether the primary magistrate had jurisdiction had been resolved. That had been resolved, adversely to Mr Pauga, before the matter was listed for the s 19 hearing, and no application for review in this Court was filed until 5 July 2021: see [71] below.

56    Directions are to be complied with unless or until they are overturned on appeal, varied or stayed. If an applicant is going to challenge such decisions, which are said to impact on the conduct of the proceedings, or to seek to vary them in some way, it is incumbent on them to do so in a timely manner. It was not open to Mr Pauga to conclude unilaterally that the directions were not valid and therefore decide not to comply with them, choosing instead not to initiate any proceedings to challenge the directions made, or even seek to vary them. No such applications were brought, in a timely way, or at all. Rather, Mr Pauga repeatedly chose to breach directions.

57    That said, on 23 February 2021, Mr Pauga did apply to the primary magistrate for a stay of her Honour’s directions made on 12 February 2021. That application was on the basis he was going to seek judicial review in this Court of various aspects of the conduct of the proceedings, including her Honour’s ability to make directions. That application reflects his understanding that he was required to comply with the directions. It was rejected on the basis there were no grounds to stay the directions, “particularly there being only a stated vague intention to bring judicial review applications with no draft of such application having been provided or any material in support”. As previously referred to, the primary magistrate then made a direction of liberty to apply to bring the matter back before her Honour. The appellant: did not exercise that liberty; did not file the proceedings in the Federal Court until 5 July 2021; and continued to breach directions made.

58    We note also that there is no ground of appeal challenging the primary judge’s finding made against Mr Pauga on this topic. His Honour concluded the contentions that the directions were made without jurisdiction were plainly misconceived and quite properly not accepted by the primary magistrate: at PJ [344] and see PJ [70]-[73], [261]. See also Dutton v O’Shane [2003] FCAFC 195; 132 FCR 352 at [159]:

It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on “the admissibility of evidence”, on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative.

59    Also, as a starting point, when case management directions include that the evidence or material to be relied on is to be filed by a specified date in advance of the hearing or to be filed in affidavit form, a failure to comply with the directions ordinarily means the evidence cannot be relied on without leave of the decision-maker. No lawyer acting reasonably could have understood they were entitled to ignore the directions, and simply call oral evidence from witnesses instead. As must have been plainly understood by Mr Pauga and his counsel, compliance with such directions was not optional. Moreover, the primary magistrate, at times, made directions, including for material to be filed explaining the breach of earlier directions.

60    At the hearing on 5 July 2021, as had been the case on earlier occasions, Samoa’s submissions included that no evidence had been filed by Mr Pauga. Despite that, he did not raise that he intended to call evidence at the s 19 hearing.

61    Fifth, as referred to above, on 12 March 2021, the s 19 hearing was listed on 8 and 9 July 2021. On that occasion, further directions were made for the preparation for the hearing. The primary magistrate made clear to Mr Pauga that: he was granted liberty to apply to raise the jurisdictional points that he had complained about (which included the validity of any directions given); and if an application was made, a hearing would be set down for that purpose before the s 19 hearing: see PJ [188]. Mr Pauga did not exercise that liberty.

62    Sixth, in that context, Mr Pauga advanced a submission on this appeal that a s 19 hearing is to be conducted in two stages. Namely, a hearing in respect to s 19(1) is to be conducted, and only when the magistrate is satisfied of those preconditions can timetables be set and directions be made for the conduct of the s 19(2) stage. It follows that Mr Pauga is submitting that there must be a temporal separation between the s 19(1) hearing and the s 19(2) hearing. We will return to address the content of that submission below. However, we note that it is unclear how this submission, which contemplates timetables being set by the magistrate, sits with Mr Pauga’s submission that the primary magistrate lacked jurisdiction to make case management directions.

63    For present purposes, it is sufficient to note that this position was not advanced before the primary magistrate. In particular, it was not advanced in Mr Pauga’s written submissions filed on 11 December 2020 (in response to Samoa’s submissions filed on 16 October 2020), where instead he made substantive submissions as to both aspects of s 19. Moreover, on 12 March 2021, when the s 19 hearing was set down, it was for two days (to address all matters in s 19). On that occasion, Samoa addressed the content and procedure in respect to both ss 19(1) and (2), and explained that at the s 19 hearing it would address both aspects of the provision. We note that is in accordance with the usual practice of both aspects being heard at the same time. Samoa agreed that two days was sufficient on the basis that Mr Pauga had put forward no material to be relied upon (despite directions to do so). Mr Pauga ultimately acceded to only two days being set aside. Significantly, he conceded on this appeal that from March 2021, he understood that all of the matters in respect of s 19 would be heard on 8 and 9 July 2021.

64    Seventh, the listing of the s 19 hearing occurred in the context where, on 18 December 2020, Crow J in the Supreme Court of Queensland had dismissed Mr Pauga’s application for a writ of habeas corpus: see [133] below. In doing so, Crow J rejected Mr Pauga’s submission that there had been no valid remands pursuant to s 15(1). In dismissing the application, his Honour observed that Mr Pauga’s submissions were wide ranging, and in so far as complaints were made about the validity of subsequent remand before various magistrates acting persona designata, the avenue to challenge those decisions was by judicial review to the Federal Court (which had not been undertaken). This reflects that, as of December 2020, Mr Pauga was plainly on notice that any such challenges were to be advanced in this Court. The timing of his decision to file the proceeding on 5 July 2021 was also in this context.

65    Mr Pauga did not appeal Crow J’s decision. That said, he did apply to Crow J to recall the decision and reopen the proceedings, but that application was heard and refused. Crow J did not accept that Mr Pauga had not had an opportunity to be heard on each issue he wished to raise, and observed that if he sought to review his Honour’s decision, he should appeal it. We note the reasons of Crow J reflect, inter alia, criticisms of Mr Pauga’s conduct in failing to comply with the orders of the Supreme Court for the filing of submissions in relation to the earlier application, and the consequent effect on the conduct of the hearing.

66    Eighth, it is worthwhile focussing closer attention on the hearing of 5 July 2021. The conduct of Mr Pauga’s counsel during that hearing reflects his conduct during the proceedings more generally.

67    As reflected above at [25] and [47(e)], that hearing occurred as a result of Samoa calling on the matter urgently after receiving an email from Mr Pauga’s legal representatives on 30 June 2021: see the email extracted at PJ [191]. The email was in response to correspondence from Samoa which, inter alia, suggested that the s 19 hearing should be conducted online (given the particular circumstances arising from the COVID-19 pandemic). We note that the primary judge omitted the last line of that email from the extract at PJ [191]. That line stated, “[f]or all these reasons, the hearing next week should be vacated”. Bearing in mind that, by this time, almost nine months had passed since Samoa filed the material on which it relied and almost four months had passed since dates for the s 19 hearing had been set. Samoa expressly raised Mr Pauga’s correspondence indicating that he was going to request the hearing be vacated. Mr Pauga’s counsel disavowed any application to vacate the hearing, and stated that he would be present in person at the s 19 hearing. The primary magistrate understood (and stated her understanding) that there was no application for an adjournment of that hearing and that the representatives of Mr Pauga would appear in person.

68    In addition, as referred to above, during the hearing on 5 July 2021, Samoa: raised that Mr Pauga had not filed any material for the s 19 application in accordance with the many directions made; and submitted that he was “persistently, and consistently, and unexplainably in default of [the primary magistrate’s] orders” in the context of a matter which “need[ed] to proceed” given that he was in custody and Australia had obligations under international law to give effect to the extradition request. Mr Pauga was asked for any submission on those issues and responded simply by stating that they would be appearing in person and “so we are proceeding on that basis”. The primary magistrate then recited some aspects of the history of the matter, including the failure to comply with directions in relation to the filing of material.

69    If Mr Pauga was going to make an adjournment application, as he plainly intended to do, at the very least it should have been made during the hearing on 5 July 2021. That is especially so, given: the application had recently been foreshadowed, which had led Samoa to call the matter on; express opportunity was provided to make the application; and the s 19 hearing was listed only three days later. On this appeal, Mr Pauga submits that what counsel said at that hearing was that he was not making any adjournment application “now”, leaving open that he would be making an application at the s 19 hearing. If that was so, it reflects the manner in which Mr Pauga chose to conduct the proceedings before the primary magistrate. It reflects that his counsel chose to be deliberately opaque as to any intention to seek to adjourn the s 19 hearing. No lawyer acting reasonably could have considered that this was sufficient to put Samoa and the primary magistrate on notice that there definitely was to be an application to adjourn on the first day of the s 19 hearing. That is particularly so in circumstances where, as referred to above, the primary magistrate stated during the hearing on 5 July 2021 that Mr Pauga’s counsel had “made it clear there [was] no application for an adjournment of the [s 19] hearing”. It would also have been obvious to his counsel that the primary magistrate understood from what he had said, that there was to be no application. Indeed, as the primary magistrate observed on 9 July 2021, any reasonable person would have taken the statement at face value. Further, and despite that, at no time during the hearing on 5 July 2021 did counsel state he would be making an application on the first day of the s 19 hearing. Nor did he correct what Mr Pauga now claims was a misunderstanding by the primary magistrate. It can be inferred that this conduct was deliberate.

70    Importantly, on 5 July 2021, Mr Pauga’s counsel also did not raise with the primary magistrate that he had not had sufficient time to prepare for the s 19 hearing, nor did he provide any explanation for breach of the many directions made for the conduct of the s 19 proceedings. He also did not raise that he was going to seek to lead evidence orally at the s 19 hearing, noting that it is clear from the evidence before the primary judge that his intention was to adduce evidence confined to the question of an adjournment.

71    Ninth, the proceedings the subject of this appeal were filed in the Federal Court on 5 July 2021, but had not been filed at the time of the hearing before the primary magistrate on the same day. At that hearing, despite the fact that Mr Pauga’s obvious intention was to file the Federal Court proceedings imminently, his counsel did not inform either Samoa or the primary magistrate of this. This is also in a context where, as the events that followed reflect, it was his intention to submit to the primary magistrate on 8 July 2019 (without notice) that the filing of the documents in the Federal Court meant the s 19 hearing could not proceed.

72    The proceeding filed in the Federal Court on 5 July 2021 sought, inter alia, an interlocutory order restraining the primary magistrate from proceeding with the s 19 hearing. An urgent hearing was conducted before the primary judge on 7 July 2021. At that hearing, counsel for Mr Pauga stated that he anticipated the s 19 hearing would be vacated and adjourned in light of the Federal Court proceedings having been filed. Mr Pauga did not press the application for interlocutory orders and no relief was sought to restrain the primary magistrate. Instead, counsel for Mr Pauga flagged to the primary judge that if the s 19 hearing was not vacated, an interlocutory injunction would be sought. The primary judge, in light of the conduct of the proceeding, refused his request to have liberty to bring the matter on urgently for that purpose. As the primary judge observed, if the hearing before the primary magistrate continued to finalisation, “it was a consequence entirely” of Mr Pauga’s making given the delay, without explanation, in filing the Federal Court proceedings. We also note that Mr Pauga was capable of filing affidavits, given he had done so in the Federal Court proceedings by the time of this hearing before the primary judge.

The s 19 hearing

73    The s 19 hearing commenced on 8 July 2021, in the above context.

74    By this time, almost four months had elapsed since the hearing dates were set. At the outset of the hearing, counsel for Mr Pauga informed the primary magistrate of the Federal Court proceeding. As the primary magistrate attempted to ascertain the relevance of that proceeding, it became apparent that Mr Pauga was applying for her Honour to vacate the s 19 hearing (despite having stated on 5 July 2021 there was no such application): see the description of the events at PJ [200]-[217]. It became apparent that counsel was making more than one application at which time the primary magistrate said:

Well, I’d like you to indicate all of the grounds, because once you’ve indicated what applications you’re making…

75    After an interruption by counsel for Mr Pauga, her Honour continued:

… and I need you to at this point to be complete. I need you - and it's the only opportunity I will be offering you, that while you are now on your feet, you let me know what applications you’re making and the basis of those applications. Because at the directions hearing on Monday, l was given to believe that this matter would proceed today. There was no notice to this court on Monday that there were to be proceedings filed in the Federal Magistrates Court or the Federal Court.

76    We also note that during submissions, Mr Pauga’s counsel, referring to Samoa’s application, stated:

I don't know what application is being made today, but I suspect it's an application by my learned friend to – for your Honour to determine – to conduct proceedings.

77    That statement was entirely disingenuous, with counsel feigning a lack of knowledge in circumstances where, as conceded on the appeal, he was aware the hearing was for all of the s 19 proceeding to be heard. We also note that a day earlier during the hearing before the primary judge, counsel for Mr Pauga had submitted that he understood the primary magistrate had set down the hearing on 8 and 9 July 2021 to “determine anything and everything” and that “we foreshadow Samoa is seeking a final determination”.

78    In that context, during the application, which was heard during the morning of 8 July 2021, counsel for Mr Pauga did not advance as a basis for an adjournment that he needed time to prepare for the s 19 hearing, or had not had reasonable time to do so. In dismissing the application for an adjournment on the bases advanced, the primary magistrate detailed the history of the proceedings. This was accurately summarised by the primary judge at PJ [211]-[217], and given Samoa’s grounds of appeal, bears repeating:

[211]    The Primary Magistrate then delivered oral reasons refusing the applications. They began with a summary of the history of the proceedings that reflects more briefly the chronology that has been described in these reasons. As to the hearing on 12 February 2021 her Honour said:

A bald application, verbal application, was made to have me recuse myself with no evidence supporting submissions and I refused to recuse myself on that basis. I then directed that Mr Pauga file and serve an affidavit setting out all steps taken prior to the 12th of February in furtherance of the directions made in December 2020, such affidavit to include the reasons why the directions of this Court in December had not been complied with. I also directed that Mr Pauga file and serve an affidavit as to a written plan as to the evidence, reports and witnesses he intended to call and a timetable as to when report, statements, etcetera would be available. And that was, in effect, simply a repetition of previous directions made and not complied with.

I directed that the two affidavits the subject of those directions to Mr Pauga on the 12th of February be filed and served before 4 pm on the 26th of February, and I adjourned the matter back before myself on the 12th of March. I should say that on earlier date I made a direction that any recusal application - that is, any application on behalf of Mr Pauga that I recuse myself - be listed for the 12th of March 2021 and I gave liberty to the parties to apply. On the 23rd of February, an application was made on behalf of Mr Pauga that I stay previous orders and there was a lengthy lot of submissions before l dismissed the application for a stay of my orders.

[212]    Then the reasons dealt with the hearing on 12 March 2021 in the following terms:

On the 12th of March it came before the Court and Mr Pauga's legal representatives indicated to the Court that they were not ready to proceed with the application for recusal of myself from the hearing and indicated that they needed transcripts of the proceedings. I indicated to the parties on that date that I proposed listing the section 19 extradition application for hearing. Mr McKechnie said that one day only would be required. As things have turned out and in anticipation of possible further difficulties, the matter was set for two days, being today and tomorrow. I made further directions that Samoa file and serve any material upon which it relies before 4 pm on the 10th of June 2021, and I directed that Mr Pauga file and serve any material upon which he relies before 4 pm on the 24th of June 2021.

[213]    Her Honour then dealt with the events of 5 April 2021 and said:

Mr McKechnie is also correct when he said the Mr Pauga is persistently and consistently and unexplainably in default of the Court's orders …

At no time in the directions hearing was there any indication that there would be either an application or applications, as it turns out, as have been made orally by Mr Mancini this morning or, indeed, any application to the Federal Court as was made yesterday.

[214]    The Primary Magistrate then referred to the proceedings before Crow J and said:

And so I put the history of the matter on the record to indicate what I consider to be repeated attempts by Mr Pauga to delay these proceedings by any means possible without notice or with inadequate notice to either Samoa or the Court. What the intended outcome might be is a question for them, but what is being achieved is further delays in this matter in relation to which Mr Pauga has had no success at any level in relation to arguments before the Court.

[215]    As to the claim of apprehended bias, her Honour said:

The proceedings have previously resulted in a dismissal of an application for stay of orders. The matters of jurisdiction have previously been ventilated and determined. The issue of my recusal is limited in terms of material before this Court to paragraph 73 to 81 of the affidavit of Mr Finlayson filed in the Federal Court yesterday, which is no more than a general dissatisfaction with refusal of orders previously made by me without anything to substantiate the requirements for the Court to be satisfied that there is a reasonable apprehension of bias, except to refer to my manner and demeanour on the 12th of March 2021, which at its highest was expressed as 'patronising behaviour'.

There has also been oral submissions made of my interrupting of Mr Mancini and there is also a reference in one of the transcripts to heated exchanges between myself and Mr Mancini. Now, accepting that that is the behaviour that another Court might determine is the behaviour I have engaged in, it falls far short of what is required for there to be a reasonable apprehension of bias by me towards Mr Pauga. And it will be for another Court to determine when they read all of the transcripts of all of these proceedings, which are attached to Mr Finlayson's affidavit, commencing at page 70 and going all the way through to page 412. I do not think it could be said that Mr Pauga has not had a fair go or a fair hearing.

[216]    Then her Honour dealt with the issues raised in relation to the notices under s 78B of the Judiciary Act and said:

Other matters that have been raised relate to the notice under section 78B and Mr McKechnie's submissions, I accept, in relation to that argument that in the section 19 Extradition Act proceedings, my duties are administrative in nature as persona designate, and, in any event, Mr Pauga has not identified the matter arising under the Constitution or involving its interpretation that would give rise to me having a duty not to proceed. The only vague reference is to institutional integrity. There is no explanation of that. There is no evidence of that. And, in any event, I cannot determine constitutional matters, even if one had been identified, when one has not.

[217]    After dealing with the then recent hearing in this Court, the Primary Magistrate said:

Mr Mancini promises much in terms of applications and delivers little, except at the door of Court orally, with the consequence that matters are delayed. So I dismiss and refuse the applications for a vacation of the hearing dates today and tomorrow. I dismiss the application for an adjournment of these proceedings. To the extent that it is necessary, given that I have made a previous order not stay proceedings, I further dismiss the further application to stay these proceedings. I also dismiss the application that I recuse myself and I determine, as has been the subject of previous orders, that I have jurisdiction to proceed to hear the section 19 application, the extradition application, and will proceed to do so.

…

The submissions to which the documents relied upon by Samoa … are submissions made on the 16ᵗʰ of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which l will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court.

Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26ᵗʰ of July, which was to include any material upon which he seeks to rely.

So that's my decision in relation to the refusal of the adjournment.

79    We note also that where Mr Pauga was directed to provide to the primary magistrate all applications (and there were many), there was no application to lead oral evidence: for a summary of the applications, see PJ [206].

80    After ruling on those applications, the primary magistrate asked Samoa if it wished to commence then, or after the luncheon adjournment. At that point, Samoa raised that counsel for Mr Pauga had flagged that he may make emergency applications to the primary judge and that the luncheon adjournment was an appropriate time to do so. Her Honour then adjourned the matter until after lunch. Mr Pauga did not apply to the Federal Court to restrain the primary magistrate from continuing the s 19 hearing.

81    Samoa presented its case on each step of the s 19 proceedings (in other words, both the subsection 19(1) and 19(2) stages). We will return to address the substance of Mr Pauga’s submission on the nature of a s 19 hearing below. Suffice to say there is nothing unusual or inappropriate about the extraditing country making submissions on both aspects of the s 19 hearing before the extraditee makes submissions. Samoa’s submissions were consistent with the position taken in its written submissions and material filed on 16 October 2020, nine months previously.

82    At the conclusion of Samoa’s submissions, counsel for Mr Pauga sought an adjournment of about 20 minutes to take instructions, which was granted. On resumption of the hearing, counsel sought to confirm on the record that Samoa had closed its case. Once that was confirmed, the primary magistrate asked counsel for his submissions. At this time, counsel applied for an adjournment until the next day. The purpose advanced was to investigate the material relied on by Samoa and to “prepare three witnesses for the purposes of giving evidence tomorrow on the s 19 question and call them for that purpose”. It is to be noted that counsel did not identify the “s 19 question” referred to, nor any contemporaneous evidence of steps taken to prepare the three witnesses referred to. Mr Pauga also did not submit that he sought to call that evidence for the purpose of persuading the primary magistrate that he had not had a reasonable opportunity to prepare: see PJ [353].

83    This was the first time that Mr Pauga informed the primary magistrate of any intention to call oral evidence. As explained above, despite the very many opportunities to do so, and in the face of directions for affidavits to be filed, via his counsel, he chose to withhold this intended approach. Further, the application for an adjournment was also made in a context where it had earlier been made abundantly clear to counsel for Mr Pauga, at the outset of the hearing, of the need to identify all applications he was making and the basis for them.

84    Her Honour stated:

HER HONOUR: Well, the adjournment is refused, Mr Mancini, for these reasons. The submissions to which the documents relied upon by Samoa are attached are submissions made on the 16th of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which I will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court.

Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26th of June, which was to include any material upon which he seeks to rely.

So that's my decision in relation to the refusal of the adjournment.

MR MANCINI: Well, your Honour, can I take that as an indication of what your Honour's thinking so I can respond to that. So the - - -

HER HONOUR: No. That's my – in fact, my order. I'm - - -

MR MANCINI: Well, your Honour - - -

HER HONOUR: And I’m giving my reasons, thank you, Mr Mancini. Don't interrupt me.

MR MANCINI: Well, your Honour, can't I be heard about that?

HER HONOUR: I also refer to his Honour Judge French in Cabal v United Mexican States, that is the decision at tab 9, and, for your information, it is the 29th of August 2000. At paragraph 165 he talks about authentication in relation to provisions of section 19(7)(a) and (7)(b)(i), and goes on to say at paragraph 167:

Section 19, paragraph 6, renders any document which is duly authenticated admissible in the proceedings. That is on the face of it a facultative provision.

In paragraph 168:

The requirements of authorisation relevant for present purposes are "purported" signature or certification and "purported" sealing. It is not necessary for the requesting country to prove to the magistrate that the signature or certification relied upon is that of a judge, magistrate or officer provided that appears on the face of the authenticating document. Moreover, it is not part of the function of the magistrate or this Court on review, to look behind the certification process to any statutory requirements of the requesting country which govern certification of official or judicial documents. It is not necessary to prove that the seal is an official seal of the kind specified provided that it appears on the face of it to be such a seal. Nor is it necessary to look behind the seal to determine whether or not it complies with the law of the requesting country.

Now, on that basis and on the basis that Mr Pauga has had nine months to respond to fulsome, clear, concise submissions made nine months ago, the adjournment today is denied and the calling of any witnesses is refused. I am not going to have at the eleventh hour yet again an application made on the fly in the hope that this Court or me, however you want to refer to me – and so that application is adjourned [sic] as well.

So what you are left with, Mr Mancini, is submissions that I would like you to make for the next three-quarters of an hour, and if you have not finished by then, we will continue in the morning. But there will be no witnesses to be called. There will be no adjournment.

85    Mr Pauga’s submission on this appeal, by reference to the email of 30 June 2021, that Samoa was on notice that he intended to call witnesses, cannot be accepted. Although Mr Pauga’s legal representatives did refer in that email to issuing summons for witnesses to attend and to produce documents, this had never eventuated. That was also in a context where the same email foreshadowed a vacation of the s 19 hearing, which led to the hearing before the primary magistrate on 5 July 2021, during which counsel for Mr Pauga disavowed that there was any application to vacate the hearing. At no time, either in correspondence or at the hearing on 5 July 2021, did Mr Pauga inform Samoa, or the primary magistrate, of an intention to call witnesses at the s 19 hearing.

86    Mr Pauga’s submission in this appeal as to Samoa being on notice also misses the point. Directions had been made, and repeatedly breached, for the filing of evidence. Those directions allowed for notice to be given to Samoa of the evidence to be called (not just that Mr Pauga intended to call witnesses generally). His failure to comply with those directions therefore gave rise to the compelling inference that no evidence was to be called.

87    On the morning of 9 July 2021, Mr Pauga made another application without notice or evidence. This application related to the hearing (or at least part thereof) being held in closed court, and was denied by the primary magistrate. No challenge is made to that ruling. Mr Pauga thereafter had the opportunity to make submissions.

88    The tenor and nature of the submissions advanced by counsel for Mr Pauga are reflected by this passage:

… It’s Mr Pauga that has the right to be told by the court, by the persona, by the magistrate and by Samoa. And they’ve never – and nobody has ever told Mr Pauga how it’s going to happen at all. So we haven’t had a process, other than a process that has been conducted arbitrarily, on the run, from time-to-time.

And so we get to a point, what is to be heard? Nobody is clear. We still don’t know what your Honour’s doing, because your Honour hasn’t gone through the preconditions and the point is your Honour has no jurisdiction at the moment to entertain and to commence the proceedings under section 19.

And so all of these things had to be talked about. Well, where are you going with that? How long do you need for that? Is that a reasonable time? What do you need to do? That’s what we were trying to articulate to your Honour. And when, your Honour, any court official is asked by a party, “Your Honour, we’d like to investigate this,” “Yes, how much time do you need?” – that’s how it usually works. And then the court hears it and makes a decision about whether that time will be allowed. And, of course, that’s never happened.

89    As can be seen, that submission is disingenuous, unhelpful and factually incorrect. Mr Pauga had repeatedly been provided opportunities to make submissions and to provide material to explain how long he needed to prepare. He was provided considerable latitude by the primary magistrate, including in circumstances where he had not complied with directions designed to ensure the s 19 hearing would take place, and in a timely and orderly fashion. It was only when he had repeatedly not complied with those directions (or taken those opportunities), that the matter was listed for hearing on 8 and 9 July 2021, even then, leaving four months until the hearing. In the same vein, Mr Pauga made submissions that he had never acceded to the validity of the directions to file affidavits and therefore could not comply, and claimed erroneously that the primary magistrate had not made rulings on various submissions previously made. He also complained, inter alia, that he needed to issue subpoenas to witnesses to attend and that the primary magistrate had not yet heard him on whether he sought to issue subpoenas. Again, this was a matter that had never been raised prior to 9 July 2021, despite many opportunities to do so.

90    In the middle of his submissions, counsel for Mr Pauga also made another application to adjourn, this time for about a week on the basis that he had been:

… reliably informed that these proceedings and Mr Pauga’s extradition, upon a change of government, will cease and it far better that my client’s liberty not be compromised by virtue of that in the short delay, in the context of the very dramatic circumstances in Samoa and the pending change of government and the reliable information, your Honour, that’s been given to me that this will end when the new Attorney-General comes in.

91    Despite the opportunities given, counsel repeatedly made the same submission, to the effect:

Your Honour hasn’t commenced any proceedings relevant to Samoa’s application and your Honour hasn’t done so, and cannot do so, as well. So you haven’t done it and you haven’t exercised the determination about the pre-conditions being satisfied because your Honour hasn’t done – hasn’t made that determination at all.

92    And:

Your Honour cannot embark upon a determination under section 19 because your Honour hasn’t done that which is required by section 19. Section 19 requires your Honour’s determination in the way mapped out by Mr McKechnie first for your Honour to do those things, and having done those things, the magistrate or judge shall conduct proceedings. So we haven’t yet started to conduct proceedings. That’s a pre-condition to the conduct of the proceedings and the proceedings, your Honour, will be conducted when your Honour says so, and your Honour has to be satisfied about these matters.

So, your Honour, in respect to that, in addition to the submissions we’ve made – and when your Honour’s done that, then we’ll present our case because we don’t present our case ahead of your Honour conducting proceedings, you see, because your Honour hasn’t started to conduct proceedings and we’ll be asking to do things for the purposes of the conducting of proceedings, calling evidence, issuing subpoenas, et cetera, calling witnesses, et cetera.

93    Counsel for Mr Pauga also asserted that the primary magistrate had never heard from him about: how long he needed to prepare; whether he was ready; or whether he had had reasonable time to prepare. That submission was made in circumstances where, as outlined above, many opportunities had been given for him to be heard on exactly those issues.

94    The primary magistrate explained to counsel for Mr Pauga that he was to use the time he had during the hearing to make submissions as he saw fit. Counsel made it plain that he did not accept the ruling of the primary magistrate as to the conduct of the proceeding, and the primary focus of his submissions was directed accordingly. That was a forensic choice by him on behalf of his client. Counsel repeatedly referred to Peniche v Hannan [1999] FCA 915 as guidance as to the manner in which the hearing must be conducted in two stages. He submitted that he could not (and would not) present his case on s 19(2), including calling witnesses, unless a formal ruling was made in respect of s 19(1). On his submission, only then could he, inter alia, apply for subpoenas for witnesses to attend the s 19(2) stage (which was to occur on later occasion). The submission was made in circumstances where the primary magistrate had explained that the hearing would proceed on the basis that Mr Pauga, as Samoa had done, could make submissions on both of ss 19(1) and (2). That was also the position understood by Mr Pauga since the hearing dates were set.

95    It bears repeating that Mr Pauga submitted that he was, according to his counsel, still seeking time to investigate any extradition objections and to prepare such evidence, including by travelling to Samoa: see, for example, PJ [237].

96    Having allowed Mr Pauga substantial time in which to make submissions (an aspect of the conduct of the proceeding to which he takes no issue), the primary magistrate heard Samoa in reply, before ruling in respect to each aspect of s 19.

Further issues

97    Before going further, it is appropriate to address three topics.

98    First, Mr Pauga’s submission that a s 19 hearing must be conducted in two stages, temporally separate. The high point of his submission on the proper construction of s 19 depends on: the text of s 19, particularly the words “shall conduct proceedings” after s 19(1)(d); and Peniche v Hannan. It was submitted that case supports the proposition that s 19(1) must be considered first, and on an occasion temporally separate to s 19(2), because only after making a finding in relation to s 19(1) can a magistrate make directions as to the conduct of the s 19(2) stage of proceedings. This, it was submitted, was because the magistrate had no jurisdiction to conduct the proceedings until s 19(1) was satisfied.

99    The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14], citing Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [35]-[39] and [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408.

100    The terms of s 19 do not suggest that both stages cannot be conducted within the same hearing, as the primary judge correctly found at PJ [291], reproduced immediately below. That is, there is nothing in the text of s 19, considered in context and given its purpose, which requires the hearing to be conducted on temporally separate days, or which requires the submissions and evidence in relation to the second stage to be heard after the completion of the first stage. The provision does require that the magistrate must be satisfied of the s 19(1) preconditions before they can determine the requirements in s 19(2). However, the hearing conducted can relate to both of those sub-sections, noting also that, generally speaking, extradition proceedings ought to proceed expeditiously: Peniche v Hannan at [22].

101    The primary judge concluded at PJ [291] that:

However, the availability of that way of proceeding did not mean that it was required in order for there to be a valid decision for the purposes of s 19 that a person is eligible for surrender. It was possible for a magistrate to proceed to conduct a single hearing to consider both the Four Pre-Conditions and the matters specified in s 19(2) provided the magistrate then considered the evidence and submissions as to whether the Four Pre-Conditions were satisfied and, in particular, formed the state of mind required by s 19(1)(d). Only if that state of mind existed could the magistrate proceed to conduct the Section 19 Proceedings and determine whether the person was eligible for surrender. But the view required by s 19(1)(d) could be formed after a single hearing at which evidence and submissions as to the Four Pre-Conditions as well as evidence and submissions on the Section 19 Proceedings were received.

102    Properly read, Peniche v Hannan does not stand for any contrary proposition. Mr Pauga could not point to any point of principle in Peniche v Hannan in support of his construction. Rather, Peniche v Hannan reflects no more than the way in which the proceeding happened to be conducted in the circumstances of that case. There, Mr Peniche brought an application to vacate the s 19 hearing (over a month before the date of that hearing) on two bases, one being that he had not had reasonable time in which to prepare for the conduct of the s 19 proceedings, meaning the s 19(1)(d) condition had not been satisfied: Peniche v Hannan at [6]. In support of that application, Mr Peniche relied on an affidavit from his solicitor which set out the work undertaken by his lawyers in preparation of the hearing, and why more time was required: Peniche v Hannan at [33]. The adjournment application was refused by the magistrate, and the application for a s 21 review was dismissed, as no error was established in the magistrate’s decision. It may be accepted that there are occasions when the stages of the application are addressed separately, as occurred in Peniche v Hannan. However, neither the text of the provision, nor Peniche v Hannan, require that to occur. It is a matter that depends on the circumstances of the particular case.

103    Notably, although Mr Pauga places reliance on Peniche v Hannan, he did not take any of the steps undertaken by the extraditee in that case to have the issue determined before the date of the hearing. It therefore only serves to highlight what he could have done, but chose not to do. Knowing that the primary magistrate was going to address both aspects of s 19 at the s 19 hearing, he did not bring an application in advance. Instead, he misled the primary magistrate as to an adjournment application by disavowing any application to vacate the s 19 hearing on 5 July 2021. Nor did he provide any evidence in support of needing further time to prepare. As previously stated, no explanation was proffered at any time as to why that was not done, and why that could not have been done.

104    If Mr Pauga had complied with any of the directions in place that provided him with an opportunity to file evidence, including as to what was needed to be done and the amount of time needed to prepare (for example, on 11 December 2020 and 23 February 2021), the issue of reasonable time to prepare undoubtedly would have been addressed at that time (or at least at a time earlier than 8 July 2021). It ought to be noted also that the dates for the hearing of the s 19 application were not set until he had the opportunity (on more than one occasion) to provide material as to how long he needed to prepare for it. Mr Pauga chose not to comply with the directions.

105    Second, there is a s 21 statutory right of merits review to this Court from a determination of eligibility at the s 19 stage of the extradition process. In relation to that review, s 21A provides that if a party to the relevant s 19 proceedings was prevented from adducing evidence in the proceedings, and the review court considers that the party should have been permitted to adduce that excluded evidence, the court may receive it (as well as submissions or further evidence relating to it): s 21A(2), as referred to above at [21]. Mr Pauga sought such a review, which was heard at the same time as this application before the primary judge. The review was dismissed: Pauga v Samoa. In bringing that review, Mr Pauga never challenged the primary magistrate’s conclusion that he had been given reasonable time to prepare for the hearing, as per s 19(1)(d). Nor did he attempt to put before the Court any evidence which he said had been excluded or he had been prevented from leading during the s 19 hearing. In particular, no evidence was put before the Court to base an extradition objection which was said to have been excluded. There was also no challenge to the findings by the primary magistrate in relation to extradition objections.

106    Third, as explained above at [7], the s 19 hearing related to the third stage of the extradition process, not the final stage of the extradition process. The discretionary decision of the Attorney-General pursuant to s 22 remained, and we note that material relevant to the decision as to whether a person, although eligible for extradition, will be extradited, can be put to the Attorney-General at that stage. It follows that Mr Pauga has a further opportunity to provide submissions and evidence on extradition objections for the purposes of s 22(3)(a), or other matters relevant to the s 22 discretion.

Conclusion on the cross-appeal

107    As submitted by Samoa on the cross-appeal, the conduct of the primary magistrate is framed by the primary judge as refusal of an opportunity for Mr Pauga to “adduce evidence [concerning extradition objections] without hearing from [his counsel] and without any indication in the reasons or other statements … as to the seriousness of the subject matter and the significance of that refusal for the likely outcome”: see PJ [381], also see PJ [379] and [383].

108    That conclusion is underpinned by an incorrect factual premise as to the topic on which the evidence was sought to be led: see [44]-[45] above. As Mr Pauga conceded, the evidence he sought to lead was instead directed to s 19(1)(d), its intended consequence being an adjournment of the s 19 hearing. Therefore, the primary judge’s conclusion that “[a]t no point was he afforded an opportunity to advance submissions as to why evidence should be received concerning extradition objections”, cannot be sustained: see PJ [379].

109    It is also important to recall that there is no appeal ground challenging the primary judge’s findings in relation to the eighth or ninth propositions, namely that: there was no procedural unfairness in the primary magistrate’s conclusion that Mr Pauga had reasonable time to prepare for the conduct of the s 19 proceedings; and the primary magistrate’s decision that s 19(1)(d) had been met was not made arbitrarily. This provides a significant hurdle for him. Once the actual nature of the evidence sought to be led in the s 19 hearing is appreciated, it is apparent it is necessarily encompassed by those conclusions.

110    As the chronology of events reflects, Mr Pauga made a number of deliberate forensic decisions, including not to comply with directions made by the primary magistrate as to the conduct of the proceeding. That decision not to comply included non-compliance with directions as to: filing material and evidence to be relied on in the s 19 hearing; explaining the failure to comply with directions; and explaining how much time was needed to prepare for the s 19 hearing. Mr Pauga also decided not to inform the primary magistrate in advance of the hearing: of his intention to call oral evidence; of his explanation for failing to comply with the directions; that he considered he had not had reasonable time to prepare for the hearing; or that he intended to apply for an adjournment on the day of the hearing (having disavowed the intention to make an application to vacate the hearing three days earlier).

111    This was all in a context where there were at least ten opportunities to inform the primary magistrate of those matters, as well as liberty to apply to bring the matter back before the primary magistrate. It was also in a context where Mr Pauga: was aware that both stages of s 19 were listed to be heard on 8 and 9 July 2021 (as he conceded on the appeal); filed proceedings in this Court only on 5 July 2021, almost five months after he flagged with the primary magistrate his intention to do so; and failed to agitate the interlocutory relief referred to in the application filed in the Federal Court, but used it as a pretence for an adjournment of the s 19 hearing.

112    We cannot agree with the primary judge that there was any denial of procedural fairness. The decision of the primary magistrate, in the particular circumstances of this case, was reasonable and involved no practical injustice.

113    There is no issue that the primary magistrate was obliged to accord procedural fairness to Mr Pauga, which included the provision of a reasonable opportunity to present his evidence and make submissions. That said, in Li at [82], Hayne, Kiefel and Bell JJ observed:

It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

114    The reasons for the primary magistrate’s refusal, when considered in the context of these proceedings, were made abundantly clear. In this case, it was reasonable for the primary magistrate to conclude that “enough is enough”.

115    In any event, as reflected in the summary of the s 19 hearing above at [73]-[96], Mr Pauga was provided an opportunity at the outset of the hearing to list all the applications he intended to make, and the bases for them. Yet in doing so, he did not make an application for an adjournment on the basis he had not had reasonable time to prepare for the hearing (although he did make an adjournment application on other bases), nor did he seek leave to call oral evidence. After the applications which had been identified were heard and determined, and the adjournment refused, Mr Pauga was reminded by the primary magistrate that it was for him to determine what submissions he wanted to put to her Honour. By his counsel, he chose, in large part, to focus on and re-agitate his submission that s 19 required a two-stage hearing. He did so in circumstances where it was clear that the primary magistrate had decided the hearing would address both stages of s 19 (and, as explained above, that submission was, in any event, misconceived). Counsel made a forensic choice to use the hearing time, in large part, to incorrectly and repeatedly insist: that he had not been heard on having a reasonable opportunity to prepare for the hearing; that the primary judge could not proceed as her Honour was; that the directions her Honour made as to the filing of evidence were invalid; and that he did not understand the application. He had opportunity to make submissions on other topics, and he chose to do so only to a limited extent.

116    Moreover, there was no evidence before the primary judge identifying the submission Mr Pauga was said to have been prevented from advancing, that being, why he should have been able to lead oral evidence regarding extradition objections. This is consistent with the fact that the evidence sought to be led at that hearing was directed only to having reasonable time to prepare for the hearing, as conceded by Mr Pauga during this appeal.

117    Leaving aside that the primary judge’s conclusion as to procedural fairness was based on an incorrect factual basis, it is also appropriate to address the two considerations on which his Honour placed particular emphasis.

118    First, the primary judge at PJ [376]-[377] made observations about the nature of the directions to file evidence and the consequences of a failure to do so. The nature and effect of the directions is described above at [55]-[59] and does not need to be repeated. Suffice to say that we do not agree with the description by his Honour. We also note that approach by the primary judge is somewhat inconsistent with his Honour’s approach to determining the consequences of Mr Pauga’s breaches of directions on the question of the reasonable time to prepare (which were considered as part of the eighth proposition in the primary judgment: see [30(h)] above).

119    Second, the primary judge heavily relied on the serious consequences for Mr Pauga of the ruling made by the primary magistrate. However, there is no sound basis to suggest that the primary magistrate did not consider the serious consequences of her Honour’s refusal. Those consequences must also be viewed in their context. Mr Pauga was well aware: of the potential consequences of a s 19 hearing when he made the forensic decisions set out above; and that he bore the onus of establishing any objections. As explained above, in light of the directions made and his forensic decisions up to that point, he could have had no reasonable expectation: that the s 19 hearing would be adjourned; or that, despite failing to comply with directions for the filing of evidence, he could simply choose to lead evidence orally regarding reasonable time to prepare for calling evidence sometime in the future. Mr Pauga was also well aware of the consequences of his approach. As reflected in his counsel’s submissions to the primary judge on 7 July 2021, if the primary magistrate did not vacate the s 19 hearing, he expected the consequence to be that it would proceed to the finalisation of the s 19 stage of the extradition process. That circumstance was of Mr Pauga’s own making.

120    To conclude, we note that the primary judge, when deciding the tenth proposition, did not appear to properly consider the factual or statutory context in which the primary magistrate’s ruling was made.

121    Providing procedural fairness does not require that proceedings are conducted only in a manner and at a time demanded or desired by an extraditee. The primary magistrate was not under an obligation to afford every opportunity to Mr Pauga to present his best possible case, only a reasonable opportunity. Such reasonable opportunity was clearly given.

122    Samoa has established its cross-appeal. Accordingly, for Mr Pauga to succeed on his appeal, he must establish one of his grounds of appeal. As a consequence of our conclusion on the cross-appeal, ground 1 of Mr Pauga’s appeal, which asserts error in the primary judge ordering remand consequential on his quashing the Warrant of Committal issued by the primary magistrate (having overturned her Honour’s finding on s 19 on the basis of denial of procedural fairness), no longer arises for consideration.

Appeal grounds 13, 14 and 15

123    Mr Pauga also appealed aspects of the primary judge’s conclusions in respect to the s 19 hearing.

124    Ground 13 challenges the primary judge’s conclusion that the s 19 hearing could be conducted as a single hearing, and not as two temporally separate hearings. These submissions have been addressed and considered above at [98]-[104] and do not need to be repeated. Suffice to say that Mr Pauga has not established any error in the primary judge’s conclusion. Although each stage needs to be separately determined and in order, there is no obligation to conduct a s 19(1) hearing separately from a s 19(2) hearing. In most extradition cases, the preparation timetable will ensure that a reasonable time has been allowed for both sides to prepare, and findings as to the other jurisdictional requirements in s 19(1) will often be more of a formality in practice. It is to be expected that any unforeseen problems in preparation would be raised and addressed well before the scheduled s 19 hearing, unlike what Mr Pauga chose to do.

125    Further, for the reasons given above, there was no denial of procedural fairness in the conduct of the s 19 hearing.

126    In so far as ground 14 suggested that: Mr Pauga was denied an opportunity to make submissions; the primary magistrate had implicitly pre-determined his eligibility for surrender; and the primary magistrate failed to perform her Honour’s statutory duty to consider the available evidence and submissions as to extradition objections. Those matters are not established and are contrary to what actually took place at the s 19 hearing (as detailed at some length above). Moreover, as noted above, Mr Pauga does not challenge by his grounds of appeal the primary judge’s conclusions that there was no error in the primary magistrate’s conclusion with respect to s 19(1)(d), and that the conclusion was not arbitrarily or capriciously made by her Honour. There is also no ground challenging the primary magistrate’s conclusion that no extradition objections had been established.

127    Although in ground 15 Mr Pauga challenges a factual finding in PJ [356], he made no submissions in support of it. He only advanced a written submission alleging an error with a statement in PJ [357]. That criticism is ill-founded as the passage, read in context, relates to a description of events on 8 July 2021 after the adjournment application. Further, it is an accurate recitation of events at that time. The passage of the transcript relied on to support Mr Pauga’s complaint also does not assist him. Importantly, the paragraph complained of (and PJ [356] and [359] complained of in ground 15) appear in the part of the primary judgment considering the eighth proposition (and relatedly the seventh and ninth propositions), the conclusion of which is not challenged on this appeal. Ground 15, even if factually correct, cannot have any effect on the fate of the appeal.

128    Mr Pauga has not established any of grounds 13, 14 or 15 relating to the hearing conducted pursuant to s 19.

Being brought before a magistrate and remand thereafter

Introduction

129    This topic covers appeal grounds 2, 3, 7, 9 and 11, as well as the two notices of contention relied upon by Samoa. The number of appeal grounds that require determination are reduced because of Samoa’s success on the cross-appeal and our conclusions in favour of the notices of contention: see [147]-[180] below.

130    Mr Pauga’s case before the primary judge and on appeal is that the requirements of s 15 were not observed following his arrest on an extradition arrest warrant issued by a magistrate in the Australian Capital Territory, such that his detention and remand was unlawful, not just at the time of non-compliance, but on an ongoing basis.

131    Section 15(1) required Mr Pauga to be “brought as soon as practicable before” a Queensland magistrate or eligible judge.

132    The events from Mr Pauga’s arrest and remand on 20 August 2020 and thereafter were summarised in some detail by the primary judge, including reproducing parts of the written record of Mr Pauga being remanded in custody: see PJ [81]-[98]. He was remanded in custody by a magistrate in Queensland on the day of his arrest, 20 August 2020. At the hearing before the magistrate he was represented by a solicitor who appeared by telephone, having obtained instructions by telephone from him. His solicitor consented to him being remanded in custody until 3 September 2020 (which was the next court date). On 20 August 2020, Mr Pauga did not physically appear in court and instead remained in the Brisbane watch house. After several mentions on 3, 11 and 18 September 2020, at which Mr Pauga did not appear except by his solicitor or counsel, or via videolink, he appeared physically in person on 21 and 22 September 2020, and was also legally represented at that time: see PJ [100]-[120].

133    Mr Pauga brought an initial application in the nature of habeas corpus under the Human Rights Act 2019 (Qld) in the Queensland Magistrates Court on 21 September 2021, which was removed to the Supreme Court of Queensland on his application. This application was subsequently amended on 6 November 2021. On 10 December 2020, a judge of that Court, Crow J, heard the application, and dismissed it on 18 December 2020: see [64]-[65] above. His Honour concluded that s 15(1) required that Mr Pauga be brought physically before the magistrate, but found that he had been brought physically before a magistrate as soon as practicable, on 21 September 2020, with the delay being due to the circumstances arising out of the COVID-19 pandemic. As noted above, Mr Pauga did not appeal from that decision, although he did unsuccessfully seek to reopen the application.

134    Mr Pauga’s challenge to the initial remand was addressed by the primary judge in the first proposition (see PJ [243]-[251] and [30(a)] above), although aspects of his arguments were also addressed when his Honour considered the statutory scheme.

135    Given our conclusions below, there are three topics in relation to remand which need to be addressed.

136    First, the primary judge acceded to Mr Pauga’s argument that s 15(1) required him to be brought physically before the magistrate: see PJ [26]-[32]. Mr Pauga contends that the primary judge was correct. His Honour’s conclusion is challenged by Samoa’s second notice of contention: see [35(b)] above. For the reasons below at [147]-[171], Samoa’s contention is correct. On the day of his arrest, 20 August 2020, Mr Pauga was brought before a magistrate as required by s 15(1) by reason of being legally represented at that hearing.

137    Second, the primary judge concluded by the principles of res judicata, issue estoppel and abuse of process, that Mr Pauga could not contradict the conclusion reached by Crow J that he had been brought before a magistrate as soon as practicable, being the first date upon which he appeared in person: see PJ [246]-[250]. His Honour therefore did not separately consider or determine whether this had in fact taken place as soon as practicable. Mr Pauga contends by appeal ground 2 that his Honour erred in finding that res judicata, issue estoppel and abuse of process applied to a habeas corpus application, while Samoa contends that his Honour was correct. Strictly speaking, this question does not arise because of our conclusion below that Mr Pauga was: brought before a magistrate on the day of his arrest, 20 August 2020; remanded in accordance with the requirements of s 15(1) and (2); and therefore lawfully detained from that point onward. However, for more abundant caution it is best that this ground is addressed. For the reasons below at [181]-[189], his Honour was correct as to the unavailability of habeas corpus because of the concluded view of Crow J in dismissing the same application in substance, such that appeal ground 2, if it arises, must fail.

138    Third, the primary judge also found that s 15(2) did not contemplate a single remand until the proceeding under s 19 had concluded, as contended by Samoa (which would then encompass, as expressly provided, such period or periods as may be necessary for that proceeding to take place). Rather, s 15(2) contemplated a separate remand between each court date, upon the basis that it would be impractical to have a single remand: see PJ [33]-[38]. Mr Pauga contends that this conclusion by his Honour was correct. He further argued before the primary judge, that numerous of the subsequent remands were also not valid, and reasserts those unsuccessful arguments before this Court by additional grounds of appeal. For completeness, it should be noted that no purpose for remand other than the s 19 proceeding was applicable, as there was no waiver of extradition under s 15A, nor a consent to surrender under s 18 (both of which are also contemplated as a basis for remand by s 15(2)).

139    The primary judge’s conclusion that a series of remands was required under s 15(2) rather than a single remand on 20 August 2020 that extended to the end of the s 19 proceeding, is challenged by Samoa’s first notice of contention: see [35(a)] above. For the reasons below at [173]-[180], Samoa’s contention is correct. Only a single remand was required by s 15(2), to run from the time of Mr Pauga’s initial remand on arrest until, relevantly, the completion of the s 19 hearing and the issue of the Warrant of Committal, which then became the basis for remand for the next stage of the extradition process.

140    As a result of those conclusions, the remaining grounds of appeal which address remand do not need to be considered. For completeness, these are as follows.

141    By appeal ground 3, Mr Pauga continues to maintain that his initial detention was unlawful, and that this incurably tainted his detention as unlawful ever since, even after he had appeared physically in person on 21 September 2020. He asserts that is because there must be a continuous chain of lawful detention. Appeal ground 3 therefore does not arise because of the conclusion we have reached that there only needs to be a single remand from the time of arrest until, relevantly, the end of the s 19 process, and that the remand on 20 August 2020 met the requirements of s 15(2) so as to be lawful. For completeness however, if appeal ground 3 had required determination, it would have been decided adversely to Mr Pauga, because the grant of habeas corpus relief requires that detention be unlawful at the time the application is decided, and there is no sound basis for concluding that any period of unlawful detention renders the entire period of detention unlawful for that purpose. Even if there had been a period of unlawful detention between the time of his arrest on 20 August 2020 and when Mr Pauga was physically brought before a magistrate on 21 September 2020, the detention would have been lawful from that point and habeas corpus relief would not be available: see Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43 at [47]-[48] and [67]-[72] per Kiefel CJ, Gageler, Keane and Steward JJ; applied in Commonwealth of Australia v MZZHL [2021] FCAFC 191; 289 FCR 135 at [29].

142    By appeal ground 7, Mr Pauga maintains his argument before the primary judge that each subsequent remand had to have a bespoke written warrant of remand, and the fact of there being a remand without such documentation did not meet the continuing requirements of s 15(2). His Honour rejected that argument at PJ [267]-[275]. This argument does not require determination in light of the conclusion reached that there only needed to be single remand until the end of the s 19 proceeding, and the documented remand that took place on the day of Mr Pauga’s arrest on 20 August 2020 met the requirements of s 15(2).

143    Similarly, appeal ground 9, which challenges the conclusion at PJ [273] that Mr Pauga had not discharged the burden of showing that the remand documents used for subsequent remands were invalid, does not arise in light of the conclusion below that there was a single valid remand on 20 August 2020: see discussion at [172] and [196(b)] below.

144    Finally, appeal ground 11 challenges the primary judge’s conclusion that the remand under s 15(2) required by s 19(1)(a) only had to be a remand in fact (not that it had to be proven that it was valid and lawful) and asserts that there had to be an identified chain of remands. This ground does not arise in light of the conclusion below that there was a single valid remand on 20 August 2020 that was documented.

145    Had any of the appeal grounds 7, 9 or 11 required determination upon the assumption that more than one remand was required by s 15(2), they would have failed because no error on the part of the primary judge was demonstrated.

146    It follows from the above that a determination in relation to issues raised by s 15 is only required on appeal ground 2 (for more abundant caution), and for the two notices of contention.

Does “brought before” in s 15(1) mean “brought physically before”?

147    At the appeal hearing, leave was granted to Samoa to file a second notice of contention on the meaning of “brought before” in s 15(1), challenging the primary judge’s conclusion that this required Mr Pauga to be brought physically before a magistrate: see PJ [26]-[32]. This topic was the subject of oral submissions during the appeal, and was also addressed by way of post-appeal hearing written submissions (after the notice of contention was formally filed).

148    The submissions for Samoa are reflected in the reasoning regarding statutory construction below, as are the submissions made about the primary judge’s reasoning. Samoa submits that a requirement of physical appearance to meet the obligation imposed by s 15(1) is not supported by common law or criminal law reasoning. Samoa also submits that such reasoning should not be used to construe the Extradition Act, characterising that as an error pervading the reasoning of both the primary judge and Crow J on this topic.

149    The submissions for Mr Pauga draw an analogy between arrest and detention in criminal and other curial processes, seeking to support the conclusion reached by the primary judge that s 15(1) required him to be physically brought before the magistrate, and that this requirement could not be met by him being legally represented. The substance of Mr Pauga’s submissions is that this Court should uphold the reasoning of the primary judge, including the observations in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 98, addressed below. Mr Pauga also relied upon the language of other provisions of the Extradition Act, however those provisions did not assist with the interpretive task at hand.

150    By s 3(a), the law relating to extradition is expressly codified to provide for proceedings by which judicial officers of courts acting personum designata may determine whether a person is to be, or is eligible to be, extradited, without any determination of guilt or innocence, to New Zealand and to “extradition countries”. Extradition countries are: those countries, other than New Zealand, declared by regulation (including some lesser territories or places); and foreign states to which the former Extradition (Foreign States) Act 1966 (Cth) (Foreign States Act) had applied that have not been excluded by regulation. This is achieved by a “tightly structured scheme” by which a person sought to be extradited by another country may be surrendered: Snedden at [6] and [100]-[101] (Middleton and Wigney JJ, with Pagone J agreeing). As already explained, that scheme is required to be applied by a number of distinct stages. Each stage involves a binary decision on stated criteria either bringing the process to an end, typically with a direction to release the person, or allowing it to progress to the next stage: Snedden at [100].

151    The meaning to be given to “brought before” in s 15(1) is a question of statutory construction, to be determined in accordance with the principles summarised in Snedden at [96]-[99], also see [99] above. The subject matter, structure and scheme of the Extradition Act are important contextual considerations for interpreting the meaning to be given to particular provisions: Snedden at [100], following the quote at [99] from Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd [2014] FCAFC 70; 222 FCR 13 at [75] about the relative importance of context in different statutory settings.

152    In particular, regard must also be had to Australia’s treaty and international law obligations, rather than common law presumptions as to liberty and bail: United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 at [58] and [72]. From this, it follows that general principles concerning personal liberty in other contexts, including such cases as Williams v The Queen [1986] HCA 88; 161 CLR 278 relied upon by Mr Pauga, concerning the rights of persons arrested and charged with criminal offences, provide limited, if any, assistance to construing provisions of the Extradition Act: Snedden at [112].

153    The Extradition Act regime in s 15 that applies after arrest under an extradition arrest warrant, requires the person the subject of an extradition request to be brought before a magistrate or eligible judge, and requires them to be remanded, ordinarily in custody, pending proceedings for waiver of extradition, consent to surrender, or determination of eligibility for surrender. As was pointed out in Tsvetnenko v United States of America [2019] FCAFC 74; 269 FCR 225 at [30], the very limited nature of the discretion to be remanded on bail bestowed by s 15(2) is only enlivened when the threshold of special circumstances has been established. There is no decision required to be made under s 15(1), and the extraditee must be remanded under s 15(2). That said, as a practical matter, including in this case, there will usually be a need, independently of s 15(1), for procedural orders or directions to allow for the obtaining of instructions, the making and hearing of any bail application, and the preparation of the s 19 proceeding (or for a waiver or consent proceeding).

154    Generally, any comparison with criminal proceedings must be approached with considerable caution. A defendant’s appearance via a lawyer is commonplace for the first mention of a matter in a criminal court (even when a defendant has been remanded in custody by the refusal of police bail). Ordinarily, that position is only required to be departed from when there is a hearing at which substantive rights are being determined. In that context, it is difficult to see why the requirements would be more onerous and less practical for the initial stage of an extradition proceeding where no such rights are in issue except as to bail, which is tightly circumscribed. It will often be the case that a person who is the subject of an extradition request, no less than a person charged with a criminal offence, will not only be content to appear via a lawyer, but positively may not want to be required to appear in person. This may be for a variety of reasons, including the obtaining of informed legal advice about the extradition proceeding.

155    The live question is what is necessary to achieve the evident objective of s 15(1), namely to ensure that an independent person is seized of the matter, including the due progress and regularity of the extradition proceeding, the mandatory remand required by s 15(2), and, if raised, the question of whether that remand should be on bail instead of being in custody. Yet Mr Pauga maintained that s 15(1) requires such a person to appear in person despite being legally represented, even against their will. Such a proposition may be seen to amount to a triumph of form over the substance of what ss 15(1) and 15(2) require. There is no question that a person the subject of extradition, and arrested for that purpose, must in some way be brought before a magistrate (or eligible judge). The relevant question is whether that must be personally and physically, or whether that can take place by way of a legal representative.

156    Given the reliance placed on Winkler by both the primary judge and Mr Pauga, that case requires closer consideration. The Full Court (Wilcox, Burchett and O’Loughlin JJ) in Winkler addressed the predecessor extradition legislation, the Foreign States Act. Section 15(1)(b) of the Foreign States Act was quite unlike any part of s 15 of the Extradition Act. It provided, in the context of a requisition for the surrender of a person who was then referred to as the fugitive, that once a warrant for apprehension had been issued, the Attorney-General could issue a notice directed to any magistrate before whom that person “may be brought”, informing the magistrate that the requisition had been made. Importantly, extradition under the Foreign States Act involved a determination of whether the person was liable to be surrendered, including whether there was sufficient evidence to justify trial, or committal for trial, if the offence had been committed in Australia. Dispensing with the prima facie case aspect of extradition was an important part of the changes brought about by the Extradition Act.

157    In Winkler at 98, Wilcox and O’Loughlin JJ, in a passage quoted at PJ [29], said of s 15(1)(b) of the Foreign States Act (emphasis added by the primary judge):

If a person arrested under a warrant was remanded in custody to appear at a later date, it would be a natural use of language to describe him as being 'brought' before the magistrate on the remand day. Perhaps the phrase 'may be brought' less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is ‘brought’ to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions.

158    The primary judge’s reliance on the bolded part of the above passage was misplaced. Winkler was not concerned with the interpretation of the provision dealing with the aftermath of the initial arrest of Mr Winkler. That was to be found in the former s 17(1) of the Foreign States Act, parallel to the current s 15(1) of the Extradition Act, providing that Mr Winkler “be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended”. Thus, Winkler was not concerned with Mr Winkler’s initial appearance before a magistrate, after which he was remanded on bail. Nor was Winkler concerned with any obligation imposed upon those who arrested Mr Winkler. Rather, it was concerned with whether Mr Winkler’s obligation to attend court subsequently in accordance with his prior remand and bail conditions, and the expressly finite remand period of not more than seven days discussed below, fell within the words of s 15(1)(b) of the Foreign States Act. That is, this aspect of Winkler concerned the question of whether Mr Winkler in fact physically appearing, as he was required to do by the terms of his remand and bail, amounted to him being “brought before” the magistrate as contemplated by the former s 15(1)(b), a provision quite unlike the present s 15(1).

159    Thus, Winkler was dealing with a different legislative provision, for a different purpose, using different language in a markedly different extradition regime. It cannot safely be relied upon to determine the meaning to be given to the requirement that Mr Pauga be “brought before” a magistrate in s 15(1) of the Extradition Act.

160    The primary judge’s reasoning, going beyond Winkler, was that a requirement for there to be a physical appearance before a judicial officer acting administratively persona designata, afforded a substantial protection for an arrested or detained person. This is because it would enable such a judicial officer, albeit personum designata, to question the person directly: see PJ [30]. His Honour reasoned that this was not just for the purposes of identification, but also to hear any complaint, and to determine whether any answers to questions were being given free from threat, intimidation or other oppressive conduct arising from the circumstances in which the person is being held. His Honour also noted the limits on the role of a magistrate in relation to identification for the purposes of extradition proceedings identified in Marku v Republic of Albania [2013] FCAFC 51; 212 FCR 50 at [74].

161    Respectfully, the primary judge’s reasoning misconceives and thereby overstates the role of a magistrate. As the Full Court observed in Marku at [61]-[62], even at the more substantive s 19 stage, and therefore no less at any earlier stage, a magistrate has no jurisdiction to determine any question of identity, for which remedies are available: also see Marku at [65]-[66]. Rather, a magistrate is required to assume, and not independently determine, that the person on remand is validly remanded and is an extraditable person: see Kainhofer at 538-9, 541 and 552. In any event, it is not readily apparent how any of those objectives relied on by the primary judge are not met by a defendant appearing via legal representation, acting on instructions.

162    The primary judge also placed significance on the use of the common law phrase “brought before” in s 15, which his Honour found usually means “physically brought before” in the context of arrest and detention. There are two difficulties with that analysis. First, it is well established that when a court is interpreting a code, which the Extradition Act is expressly stated to be at s 3(a), while there may be occasions when it is appropriate to refer to the common law, such as for a technical legal term or an interpretation that is well established, generally speaking, common law principles will have limited application or utility: cf R v JS [2007] NSWCCA 272; 230 FLR 276 at [145]-[150], especially [149]. Second, his Honour’s analysis involves inserting into a statute the word “physically” that parliament must be taken deliberately to have chosen not to use, in the course of substantially changing the previous extradition regime. In the absence of any basis for a finding of special circumstances (which is very hard to surmount, especially at the time of the first appearance before a magistrate), the role of a magistrate is tightly constrained at all stages, but especially at the s 15 stage.

163    Finally, the primary judge found that the effectiveness of the protection afforded by the common law requirement of being brought physically before a magistrate would be substantially undermined if it could be met by some other form of appearance, noting that the Extradition Act does not make provision for, for example, remote appearance. His Honour also noted that is in contrast to the case for an arrested or remanded person facing criminal charges under s 178C of the Justices Act 1886 (Qld). The above observations apply to this reasoning as well.

164    As explained above, Mr Pauga relied on an analogy with the criminal law to support his submission that physical appearance in person was required. In that context, and with due regard to the caution in relying upon criminal law practices and procedures on this topic under the very different regime in the Extradition Act, it is useful to consider whether there was or is any invariable practice of a person appearing in person in criminal proceedings. If that is not necessarily so, it casts doubt on any residual value of any interpretive analogy being drawn.

165    In McKellar v Director of Public Prosecutions [2014] NSWSC 459; 240 A Crim R 285, Adamson J (as her Honour then was), considered the procedure to be adopted when an accused person was not present under s 196 of the Crimes (Appeal and Review) Act 2001 (NSW). In doing so, her Honour traced aspects of the history of English and thereby New South Wales legislation, and cases on that legislation and common practice, that permitted a person to appear in person or by a lawyer, going back to the mid-19th century. This even extended to a lawyer entering a guilty plea on behalf of an absent client, which remains commonplace at least in New South Wales. At [29] of McKellar, her Honour quoted from the predecessor to the New South Wales Court of Appeal, being the Full Court in Banco, in Ex parte Hughes; Re Moulden (1946) 47 SR (NSW) 91 per Jordan CJ, with whom Street J agreed, who said at 95:

… it is well settled that when a trial before justices is proceeding in the ordinary way, by an information laid before a justice followed by a summons, the accused is not required to appear in person; he may appear by counsel or attorney. This is recognised by s 77 of the Justices Act, and has been decided by the cases of Bessell v Wilson (1853) 1 El & Bl 489 at 499-500; R v Thompson [1909] 2 KB 614 and R v Montgomery (1910) 102 LT 325 … there was nothing to prevent the magistrate from proceeding with the trial, since the accused was represented by an attorney who was ready, and wished, to go on.