FEDERAL COURT OF AUSTRALIA

Johnson v Williams (Attorney-General) [1999] FCA 586

EXTRADITION – application by accused person to Attorney-General to withdraw request for extradition – alleged failure on the part of the Attorney-General to assess that the applicant would obtain a stay of prosecution on the authority of Dietrich v The Queen [1992] 177 CLR 292 – alleged failure on the part of the Attorney-General to have regard to the fact that the applicant’s co-accused had obtained a stay on Dietrich principles and the stated intention of the Commonwealth Director of Public Prosecutions to prosecute all accused jointly -–fragmentation of the criminal process – fragmentation of the extradition process.

Judiciary Act 1903 (Cth)

Federal Court of Australia Act 1976 (Cth)

Extradition Act 1988 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Extradition Act 1989 (UK)

Johnson v Holmes (unreported:  Wilcox, Tamberlin and Merkel JJ; judgment delivered 18 November 1998) cited

Attorney-General v Foster (1999) 161 ALR 233 referred to

Dietrich v The Queen [1992] 177 CLR 292 cited

R v Secretary of State for the Home Department, ex parte Johnson (1998) 4 All ER 635 applied

Bass v Permanent Trustee Co Ltd (unreported: Judgment delivered 24 March 1999) applied

Beach Petroleum NL v Johnson (1993) 114 ALR 411 cited

The Queen v Toohey: Ex parte Northern Land Council (1980-1981) 151 CLR 170 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 followed

Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147ALR 608 cited

Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 referred to

Prasad v Minister for Immigration and Ethnic Affairs(1985) 65 ALR 549 noted

Hunter Valley Developments Pty Ltd v Kohen (1984) 3 FCR 344 applied

Newby v Moodie (1988) 83 ALR 523 followed

Yates v Wilson (1989) 168 CLR 338 followed

Harris v Attorney-General (1994) 52 FCR 386 applied

MALCOLM KEITH JOHNSON v DARYL WILLIAMS IN HIS CAPACITY AS ATTORNEY GENERAL & ORS

NO S 3 OF 1999

O’LOUGHLIN J

ADELAIDE

7 MAY 1999

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondents which costs are to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Application dated 22 January 1999 for orders of prohibition pursuant to s 39B of the Judiciary Act 1903 (Cth) and for declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth).

1                     Subsection 39B(1) of the Judiciary Act states that:

“The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

Section 21 of the Federal Court of Australia Act provides that:

“(1)            The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

  (2)            A suit is not open to objection on the ground that a declaratory order only is sought.”

The First Proceedings

2                     The proceedings that are presently before the Court (“the current proceedings”) represent another attempt by Malcolm Keith Johnson (“the applicant” or “Mr Johnson”) to avoid being extradited from the United Kingdom to Australia.  On 16 October 1997, I published a judgment in which I summarily dismissed an earlier like application that Mr Johnson had made (“the first proceedings”).  On that occasion Mr Johnson sought (among other things) to attack the authority of the National Crime Authority (“the NCA”) to investigate the offences that he had allegedly committed; he also wished to argue that the respondent in the first proceedings, Mr Holmes, was not entitled to engage in certain decision making processes and that the authorisation that the Commonwealth Attorney-General purported to grant to Mr Holmes to lay charges under subs 229(4) of the Companies (South Australia) Code 1981 (“the Code”) was flawed.  Another argument that Mr Johnson intended to raise was to the effect that the Commonwealth Director of Public Prosecutions (“the DPP”) was not entitled to conduct the intended prosecution.

3                     These were weighty issues, but all of them were matters that would have been open to challenge from the outset of the extradition process.  None of them was in any sense “new” or “recent”.  It was for this reason that the respondents in the first proceedings were able to argue successfully that Mr Johnson’s application had not been made to this court within a reasonable time; that in turn lead to the summary dismissal of his application.  Mr Johnson sought an extension of time within which to appeal against that decision.  In rejecting his application, the Full Court said:

“His Honour gave judgment on 16 October 1997.  The Federal Court Rules fix a period of twenty one days for the filing of a Notice of Appeal.  That period elapsed on 6 November 1997 without any appeal having been initiated.  However Mr Johnson’s solicitors had apparently given to counsel for the DPP an informal indication of an appeal.  On 20 November the DPP informed Mr Johnson’s solicitors that no objection would be taken to the lateness of an appeal if a Notice of Appeal was filed by close of business on the following day, 21 November.  This was not done.  It was not until 28 January 1998 that a document was filed, this being an application for leave to appeal (on the supposition that the order in the Court below was not a final order).  Both parties agreed before the Full Court that the order was a final order.  Consequently, the application was treated by the Full Court as an application for extension of time to appeal.

The solicitors for Mr Johnson filed affidavits in the Full Court proceedings that were designed to establish that the reason why no action was taken, before 28 January 1998 was Mr Johnson’s impecuniosity.  The DPP indicated he would object to those affidavits being read unless the deponents were made available for cross-examination.  This was impracticable.  Even though a video-link could be used, time differences created a real problem.  However, the Court was prepared to assume that Mr Johnson’s assertion was correct.  Even so, it was the unanimous view of the Court that the application ought to be dismissed.

Assuming impecuniosity, the Court nevertheless concluded that it was not easy to see why a Notice of Appeal could not have been filed on 21 November, to hold Mr Johnson’s position while further instructions and funds were obtained.  But the Court did not decide the case on that narrow basis.  It preferred to rest its decision on the view that the primary decision was not shown to have been affected by appellable error.”

4                     See Johnson v Holmes (unreported:  Wilcox, Tamberlin and Merkel JJ; judgment delivered 18 November 1998).

The History of the request for extradition

5                     On 25 June 1993, an information was laid in the Adelaide Magistrates’ Court, the first count of which alleged that Malcolm Keith Johnson, together with Michael John Fuller and Joseph Patrick Cummings, conspired to cheat and defraud at common law.  There were a total of fourteen counts in that information and of the remaining thirteen, two dealt only with Mr Fuller whilst the remaining eleven concerned Mr Fuller and Mr Cummings jointly.  A second information, against Mr Johnson only, was laid out of the same Court on 22 February 1994; it contained twenty eight counts.  In the first fifteen counts, it was alleged that Mr Johnson, being an officer of a corporation, made improper use of his position to cause detriment to a corporation:  contrary to the provisions of subs 229(4) of the Companies (South Australia) Code 1981 (“the Code”).  The remaining counts alleged that Mr Johnson, being a director of a public company, fraudulently applied the property of that company for a use or purpose other than the use or purpose of that company:  contrary to the provisions of ss 189 and 269 of the Criminal Law Consolidation Act 1935 (SA).

6                     At the time of the laying of the two informations, Mr Johnson was residing in the United Kingdom.  On 9 December 1994, whilst still a resident of that country, he was arrested under a provisional request of the Commonwealth of Australia for his extradition based on two warrants that had earlier issued out of the Adelaide Magistrates’ Court.  He was granted bail on terms and, for the most part, has been on bail in the United Kingdom ever since.

7                     The Commonwealth’s formal request for extradition dated 6 January 1995 (“the request”) was received in the United Kingdom on 20 January 1995; subsequently, on 18 July of that year the Secretary of State for the United Kingdom authorised the institution of extradition proceedings against Mr Johnson.  The request which had been made pursuant to s 40 of the Extradition Act 1988 (Cth) had been signed by the second respondent, the Honourable Duncan James Colquhoun Kerr (“Mr Kerr”) who was, at the time, the Minister  of State for Justice.  Section 40 reads as follows:

“A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General.”

8                     Mr Kerr’s ability to make that request was initially challenged by the applicant.  Mr Kerr had been appointed Minister for Justice on 24 March 1993 and Attorney-General on 27 March of that year but his appointment as Attorney-General was revoked a month later on 27 April 1993 when he was replaced by the Honourable Michael Lavarch.  (The first respondent, Mr Williams AM, QC, the present Attorney-General, was not appointed Attorney-General until 11 March 1996).  Mr Johnson had initially claimed that only the Attorney General of the day was entitled to originate the request for extradition.  However, the affidavit of Dominic Maxwell Sheil, which was tendered as part of the respondents’ case, has established that, in fact, Mr Kerr was acting as Attorney-General during the 1994-1995 Parliamentary Summer Recess.  Mr Sheil is a barrister and solicitor employed as a Senior Legal Officer, Criminal Law Division, in the Attorney-General’s Department, Canberra.  He exhibited to his affidavit a copy of a chart entitled “Ministers’ Leave and Acting Arrangements – summer recess 1994 – 95” dated 22 December 1994.  That document records that Mr Kerr was to act as the Attorney-General of the Commonwealth of Australia for the period 24 December 1994 to 22 January 1995.  The challenge to Mr Kerr’s authority to sign the request for extradition dated 6 January 1995 was therefore withdrawn when the matter was called on for hearing.  In any event, it would seem that, as Minister for Justice, it could have been in order for Mr Kerr to have signed the request:  see Attorney-General v Foster (1999) 161 ALR 233.

9                     On 7 November 1995, the Bow Street Magistrates’ Court fixed 3 June 1996 as the date upon which the application for an order of extradition would commence.  When the matter came on for hearing, counsel for the Commonwealth sought committal only on those charges that were contained in a document entitled “Revised Committal charges;” the charges that were listed in that document were three counts of conspiracy to defraud involving Mr Johnson, Mr Fuller and Mr Cummings and two counts of fraudulent trading naming Mr Johnson only.  In due course, an order for extradition was made on 24 June 1996 and, on that day Mr Johnson was committed to custody under s 9 of the Extradition Act 1989 (UK).  Mr Johnson unsuccessfully applied, by way of writ of habeas corpus,to the Divisional Court of the High Court and on 9 June 1997 the House of Lords refused Mr Johnson his petition for leave to appeal.  On 5 August 1997 the Home Secretary of the United Kingdom, ordered Mr Johnson’s return to Australia “in respect of the offences for which he was committed by the Metropolitan Stipendiary Magistrate”.

10                  Judicial review of the Home Secretary’s decision to make that order was sought by Mr Johnson; that application was unsuccessful; the judgment of the Divisional Court was handed down on 31 July 1998.  From there Mr Johnson sought and obtained, from the High Court of Justice, a certificate that his matter was one which raised a question of public importance.  That enabled him to apply for leave to appeal to the House of Lords.  His application for that leave, which I have been told from the Bar table will be decided on the papers, has not yet been finalised.

The submission that the request for extradition should be withdrawn

11                  On 27 August 1998 Mr Johnson’s Adelaide solicitors, Messrs Lempriere Abbott McLeod wrote the DPP seeking information about the likely prosecution of Mr Johnson.  Messrs Fuller and Cummings had earlier been successful in making a “Dietrich application” and Mr Johnson’s solicitors were raising the potential for him to make a like application: Dietrich v The Queen [1992] 177 CLR 292.  The relevant section of the letter is as follows

“In the event that Mr. Johnson is returned to Australia and it is held that he is not entitled to a stay in the same way that his co-accused are, please indicate whether you will nevertheless proceed in the prosecution of Mr. Johnson on these charges separately from Messrs. Fuller & Cummings.”

The DPP replied to Messrs Lempriere Abbott McLeod enclosing copies of his earlier correspondence in August and September 1997 with Mr Johnson’s former solicitors.  The DPP’s letter concluded with the statement:

“The position of the Director has not changed from that expressed in the letter of 18 August 1997.”

The letter of 18 August 1997 said that the “exact form of the indictment against Johnson” will be the subject of a final decision “at the appropriate time, that is when indictments are required to be filed after Johnson’s return.”

12                  By letters dated 27 August, 2 September and 17 September 1998, Mr Johnson’s solicitors wrote the first respondent, the Honourable Daryl Robert Williams in his capacity as Attorney-General of the Commonwealth of Australia (“the Attorney”) inquiring whether funding would be available for the conduct of Mr Johnson’s defence in the event of him being returned to Australia.  A reply to that correspondence came from the Legal Aid and Family Services divisions of the Attorney-General’s Department on 30 September 1998; it said in part:

“The Commonwealth funds the Legal Services Commission of South Australia through a funding Agreement it has made with the State of South Australia.  This funding is made available to meet liabilities arising under Commonwealth law.  The Commonwealth guidelines which form part of this Agreement contain information regarding the management of costs for expensive cases, including setting a limit of costs to $40,000 per applicant, at which level cost containment measures must be introduced.

The guidelines also put forward some options to be considered by the Commission where it appears likely that costs will exceed this level.  If your client so wishes, he should apply to the Legal Services Commission for legal assistance in this matter.  The Commission will determine his eligibility in accordance with the guidelines set by the Commonwealth, having regard to means.

The decision concerning your client’s eligibility for legal assistance will be made by officers of the Commission, and will not be influenced by any intervention of the Commonwealth.  You will be aware that legal aid commissions are independent statutory bodies established under state and territory legislation, and that the Commonwealth has no authority to intervene in respect of individual applications for assistance.”

13                  By letter dated 9 October 1998, Mr Johnson’s solicitors wrote the Attorney, asking that the Australian Government’s request to the United Kingdom for Mr Johnson’s extradition be withdrawn; they submitted, on behalf of Mr Johnson, that “there is no likelihood that there will ever be a trial of this matter” because of:

·                 Messrs Fuller’s and Cummings’ successful Dietrich application;

·                 the absence of any indication from the DPP that Mr Johnson would be tried separately from Messrs Fuller and Cummings;

·                 Mr Johnson’s inability to fund an adequate and proper defence;

·                 the likelihood that he would be unable to obtain legal aid to defend the charges that would be brought against him and the prospect that he would thereby also succeed in a Dietrich application.

14                  By letter dated 15 December 1998, the Attorney-General’s Department wrote Messrs Lempriere Abbott McLeod advising that their request on Mr Johnson’s behalf “is still under consideration”.  Messrs Lempriere Abbott McLeod responded on 17 December by saying:

“We have asked you to reconsider your efforts to extradite Mr. Johnson.  We submit that it would be unreasonable if, while you are considering our submission, you were to continue to take steps to do the very thing that we have asked you to cease doing.  Accordingly, we ask you to desist taking steps to secure the extradition of Mr. Johnson until you make a decision concerning our submission.

In any event, we ask you to inform us, on a continuing basis, of any steps you take to remove our client from England and bring him to Australia.  In this regard, we ask that you provide 7 days’ notice of any further step that you intend to take to return him to Australia.”

The Attorney-General’s Department replied to Messrs Lempriere Abbott McLeod by letter dated 4 January 1999, declining to give any undertaking about the future conduct of the matter in the United Kingdom and declining to suspend the process of extradition whilst Mr Johnson’s submission, as contained in his solicitors’ letter of 9 October, was under consideration.

15                  Shortly thereafter, on 22 January 1999, the current proceedings were instituted.  As originally drafted, Mr Johnson sought an order setting aside the request for extradition that had been signed by Mr Kerr on 6 January 1995 and another order quashing the Attorney’s “decision” as embodied in the letter of 4 January 1999.  Subsequent to the institution of the current proceedings, on 13 April 1999, the Attorney made a decision that he would not withdraw the request for extradition.  The making of that decision was communicated to Mr Johnson’s solicitors by letter dated 14 April.  As a consequence, Mr Johnson filed an amended application on 21 April 1999 effectively withdrawing the application to review the Attorney’s decision of 4 January 1999 and seeking, in lieu, a review of his decision of 13 April.  As a result of the withdrawal of the application to review Mr Kerr’s original request, the only decision that is now under attack is the Attorney’s decision of 13 April.

16                  If the Attorney’s decision to continue with the request for Mr Johnson’s extradition was unreasonably made, prohibition would lie to prevent any further step to perfect and complete that decision.  The power granted to the Attorney by s 40 must be exercised reasonably; it would, in my opinion, be unreasonable for the Attorney to continue with the request if he believed, or had reasonable cause to believe, that there were no reasonable prospects that the charges against Mr Johnson would be prosecuted to trial upon his return to Australia.

17                  On the other hand, it is not necessary that the Attorney be assured that the charges will be prosecuted; it will be sufficient for the Attorney to be satisfied that there are reasonable prospects that the charges will proceed to trial in the event that the accused returned to Australia; in most cases, the fact that the prosecuting authority has filed an information, charging the accused with offences upon which the extradition request is made, will be sufficient to satisfy the test of reasonableness.

The grounds in support of the application

18                  The grounds upon which Mr Johnson now relies in support of the relief claimed are two fold.  In the first place, he addresses his personal circumstances and his claim that he would be successful in obtaining a stay of any prosecution that may be initiated.  This claim is based on the decision of the High Court in Dietrich’s case.  Mr Johnson’s argument is that it would be manifestly unreasonable to extradite him when such a stay was the likely outcome.  Secondly, he relies upon the existing stay that has been obtained by his co-accused, coupled with the statement of the DPP that it is his intention to proceed against all three accused jointly.

The application of the Dietrich principle to Mr Johnson

19                  The principle for which Dietrich’s case is authority is conveniently found in the following passage from the joint judgment of Mason CJ and McHugh J at p 315:

“In view of the differences in reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available.  If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”

20                  Mr Johnson, in calling in aid the decision in Dietrich’s case, advanced numerous propositions but they can be effectively summarised in this manner:

·               the Attorney did not address the likelihood that Mr Johnson would be successful in obtaining a stay of his prosecution;

·               the Attorney did not inquire of the DPP whether the DPP would proceed against  Mr Johnson alone in the event that Messrs Fuller and Cummings did not obtain legal aid.

21                  It was submitted on Mr Johnson’s behalf that the likely costs of his defence would be in excess of $1m and that it is unlikely that any public funds would be made available.  That submission led, in turn, to the further submission that the Attorney-General unreasonably failed to inquire into, and then consider, the prospects of success of the Dietrich application that Mr Johnson would make in the event that he was returned to Australia; it was said that these inquiries would have shown that any such application “was clearly likely to succeed”.  In my opinion this submission must be rejected; it calls for the Attorney-General speculating on the likely outcome of events over which he has no control.

22                  In my opinion Mr Johnson is not entitled to the relief that he has claimed because of the possibility that he may successfully invoke the principle in Dietrich’s case.  Mr Johnson advanced the same argument, but without success, in his application for judicial review of the Home Secretary’s decision to order his extradition.  Bell J (with whom Rose LJ agreed) said:

“I can not accept the argument that the respondent should have carried out, or should now carry out, further investigations into the applicant’s prospects of obtaining legal aid in Australia, or of obtaining a Dietrich stay, if he is in fact indigent.  In my view those are matters which are best investigated in Australia when the applicant has been returned there.  I am not impressed by the claim that it would be unfair to separate him from his family for what may be a long time when he may not end up being tried at all.  In my view there is a greater prospect of delay, which will serve no one’s interests, if the respondent is put to further inquiries which are likely to be inconclusive about matters which only the Australian legal aid authorities and the Australian courts can decide.”

(R v Secretary of State for the Home Department, ex parte Johnson (1998) 4 All ER 635 at 649.)

23                  At this stage, the material in the papers concerning Mr Johnson’s financial affairs and the likely costs of adequate legal representation for his defence suggests that an application for legal aid will be made; it also suggests that Mr Johnson would be eligible for legal aid.  Mr Vorreiter, in his affidavit dated 23 April 1999, acknowledged that Mr Johnson’s representation before the Divisional Court of the High Court of England was funded by the legal aid authorities of the United Kingdom.  Although he does not state the source of his knowledge, Mr Vorreiter was the solicitor in the employ of the Commonwealth DPP who had the carriage of the proceedings against Mr Johnson; Mr Vorreiter attended in the United Kingdom throughout the extradition proceedings in the Bow Street Magistrates’ Court and during the hearing before the United Kingdom Courts.  In those circumstances I see no reason why I should not accept, as a fact, that Mr Johnson was legally aided during his appearance before the Divisional Court.  That finding then leads to the inference that Mr Johnson would have satisfied the United Kingdom funding authorities that he had insufficient resources to pay for his legal representation.  But for an applicant to rely on the decision in Dietrich’s case, it is not sufficient to prove a lack of financial resources; the applicant must also satisfy the Court that his or her impecuniosity has been occasioned through no fault of the applicant.

24                  In many respects, the issue of Mr Johnson making a Dietrich application, and the likely outcome of such an application, is in much the same position as that addressed by the High Court recently in Bass v Permanent Trustee Co Ltd (unreported: Judgment delivered 24 March 1999).  In that case the majority in the High Court was critical of the questions that had been posed in a case stated saying:

“It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.”(par 56)

I believe that these sentiments have a direct application to Mr Johnson.  He has not yet made a Dietrich application.  This Court has no way of knowing what would be the outcome of such an application if it were to be made.

25                  Mr Johnson was the first named of numerous respondents in the case of Beach Petroleum NL v Johnson (1993) 115 ALR 411.  In that case the applicants were successful in obtaining a judgment against all respondents for an amount in excess of $44m.  In the course of his judgment, the learned trial judge discussed Mr Johnson’s involvement in “the Ska Trust”.  The relevant passage in his judgment appears in pp 444-445:

“Mr Brooke set up the structure of the Ska Trust which was established by deed executed by Mr Johnson on 31 March 1982.  From 1982 to late 1985 when he had a falling out with Mr Johnson, Mr Brooke acted virtually full time on Ska Trust matters.  After resuming his relationship with Mr Johnson in 1987, through to January 1990, Mr Brooke was engaged about two-thirds of his time on the affairs of Ska Trust and Mr Johnson.  Often he worked from the offices occupied by Mr Johnson.  Mr Brooke describes the Ska Trust as a “faceless discretionary trust”.  The trustees are given almost unlimited discretion to deal with the assets, and the deed neither identifies beneficiaries nor objects of the trust.  The deed provides for both a trustee and a guardian of the trust.  Mr Brooke occupied the role of guardian until April 1989.  At that time Mr Johnson executed a letter of wishes addressed to the trustee (HKFC), the deed was amended to provide that in no circumstances was Mr Johnson ever to be a beneficiary, and Mr Brooke resigned as guardian.  These changes are motivated by taxation considerations.

The settlor of the Ska Trust was a nominee, Priscilla Chan Sui Chee who played no role in the administration of the trust.  Mr Brooke’s evidence shows that the trust was controlled by Mr Johnson and those who benefited from it in fact were Mr Johnson and his immediate family.  The trust, through companies acquired for the purpose, owned houses in England and Austria, motor cars, art works and other assets enjoyed by the Johnson family.  Mr Johnson treated Ska Trust property as his own.  Mr Brooke would pay moneys to Mr Johnson from credit balances held in his trust account in the names of Ska Trust companies as and when requested by Mr Johnson.  Mr Brooke throughout treated Mr Johnson as the person with complete authority to give instructions on behalf of the trust.”

Mr Whitington QC, counsel for the Attorney-General, pointed to that passage as support for his proposition that any Dietrich application by Mr Johnson would be opposed and Mr Johnson would be cross-examined on his involvement in and access to the assets of the Ska Trust.  That exercise could only be undertaken properly by the trial Court.

26                  Whether or not funds might be available to Mr Johnson via the Ska Trust is not the relevant issue for the consideration of this Court:  the relevant issue is that the Attorney-General has been able to point, with justification, to an area of inquiry that might be explored by the prosecuting authorities in the event that Mr Johnson should make a Dietrich application.  The fact that Mr Johnson might make such an application may perhaps, be accepted, but its outcome cannot be predicted.  It could not therefore be said that there is no reasonable prospect that Mr Johnson will ever face trial on the charges that have been laid against him in the Adelaide Magistrates’ Court.

27                  In my opinion there are two reasons why Mr Johnson cannot succeed on this leg of his argument:

·                 even if it be assumed that he is presently impecunious that does not mean that a Dietrich application would be successful; the Crown is entitled to investigate the reasons for his impecuniosity;

·                 it may be that the prosecution would wish to investigate whether there are “exceptional circumstances”, such that a stay might be denied Mr Johnson even though the Court concludes that he cannot afford legal representation through no fault of his own.

28                  I have reached these conclusions without addressing the fundamental question whether this court is the correct forum in which to raise these issues.  It seems to me that the trial Court would be the appropriate Court but in view of the decision that I have reached I need not express a concluded view on that subject.  Although there is a contrast between “the readiness of the courts to review a statutory discretion and their reluctance to review the prerogative”:  see The Queen v Toohey: Ex parte Northern Land Council (1980-1981) 151 CLR 170 at 219 per Mason J, the respondents have not challenged the power of the Court to grant the relief sought in these proceedings.  I can therefore proceed, without further investigation, upon the premise that the decision of the Attorney-General not to withdraw the request for Mr Johnson’s extradition is open to review by this Court.

29                  Leave was granted to the applicant, during the course of final submissions, to add an additional ground in support of his application.  The additional ground is as follows:

“The first respondent failed to give any or any sufficient consideration to the contents of the affidavit of the applicant (exhibit A5 in these proceedings) that accompanied the letter written by the applicant’s solicitors to the first respondent’s solicitors dated 3 March 1999 (exhibit 2CSLA5 to the affidavit of Charles Samuel Lempriere Abbott sworn on the 1^st day of April 1999.)”

30                  Exhibit A5 is a copy of Mr Johnson’s affidavit dated 3 November 1998; it was sworn by him in support of his application to the Full Court for leave to file and serve his Notice of Appeal against the decision in the first proceedings.  The contents of that affidavit indicated that Mr Johnson was without any assets and that his income was only ninety pounds per week.  I do not consider that this ground affords any assistance to Mr Johnson.  In the first place, my decision that the Attorney does not have to apply his mind to the likely outcome of a Dietrich application unless and until Mr Johnson makes an unsuccessful application for legal aid, means that there is no present obligation on the part of the Attorney to address the financial circumstances of Mr Johnson; in the second place there is sufficient material in the briefing papers (to which reference is made later in these reasons) on the subject of Mr Johnson’s impecuniosity to sustain a finding that the Attorney had sufficient material on this subject before him even if he did not have a copy of the affidavit, Ex A5.

The stay obtained by Messrs Fuller and Cummings

31                  The second leg of Mr Johnson’s attack is that on 19 August 1997 Messrs Fuller and Cummings obtained a stay of their prosecution as a result of the decision of the Court of Criminal Appeal of the Supreme Court of South Australia.  The Court was satisfied that the nature of the charges against them justified a grant of legal aid and that the proceedings should be stayed until that aid was forthcoming.  The Court was satisfied that their inability to fund their defences did not arise as a result of their conduct and, even though both were legal practitioners, the Court did not think that there were “special circumstances” that would justify the prosecution of the trial without legal representation.  Since then, there has been no change in that position.  Mr Johnson, who is not a legal practitioner, claims that the DPP has made it clear that he proposes to proceed against all three accused jointly; hence, so he says, it would be manifestly unreasonable to proceed with his extradition in the knowledge that a prosecution against the three accused jointly could not proceed.  It is his claim that in the briefing papers that were submitted to the Attorney, no mention was made of the likelihood that Mr Johnson would not therefore stand trial because of the existence of the stay in favour of Messrs Fuller and Cummings.

32                  In the twenty months that have elapsed since obtaining a stay of their prosecution, no public funds have been forthcoming for Messrs Fuller and Cummings to conduct their defence.  Added to this, there is no present intention on the part of the DPP to prosecute Mr Johnson alone; he remains expectant that funding will become available to Messrs Fuller and Cummings.  This is evident from a series of e-mails that have passed between the officers of the Attorney-General’s Department and the DPP:

1.         On 1 February 1999 the Attorney-General’s Department asked:

“Could you please confirm that the CDPP does in fact intend to attempt to prosecute Mr Johnson if he is extradited, notwithstanding that the Fuller and Cummings prosecution has been stayed.  We just need to be clear in our advice to the AG that the stay against his co-accused will not mean that the CDPP will decide that the prosecution against Mr Johnson should not even proceed.”

2.         On 2 February 1999 the DPP replied:

“The CDPP intends to pursue the prosecution of all three men and we have anticipated that the issue of legal aid will ultimately be resolved which will allow the stay against Fuller and Cummings to be lifted.”

3.         On 19 February 1999 the Attorney-General’s Department inquired again:

“Re Your message below, I would be grateful if you could confirm that a continuation of the stay against the prosecution of Fuller and Cummings would not alter the intention of the CDPP to bring Mr Johnson to trial – even if that course of action would mean that a joint trial was not possible.”

4.         On the same day, 19 February the DPP replied:

“If for any reason a joint trial was not possible, that may affect the strength of the case against an accused facing trial as an individual.  The case has been approached as one against three joint accused and as one where the legal aid issue would be ultimately resolved.  We have not appraised the matter on the basis that two of the accused may not be prosecuted.  If legal aid is unlikely to be provided for Fuller and Cummings would you please let us know as soon as possible.”

33                  I view the answers that the DPP gave as representing a commitment to prosecute the three accused jointly in the expectation that funding would be forthcoming.  If, however, the Attorney-General’s Department knew that “legal aid is unlikely to be provided for Fuller and Cummings” the DPP asked that he be told “as soon as possible”.  The submission that there was – or that there may have been – some ambiguity in the terms of the advice from the DPP cannot be sustained.  It could not be said that officers of the Attorney-General’s Department unreasonably failed to inquire into the intentions of the DPP should the Fuller and Cummings stay order remain in place.

Wednesbury unreasonableness

34                  The next aspect of this submission for the applicant that must be considered may be expressed in these terms:  although the stay that Messrs Fuller and Cummings obtained was not a permanent stay, because of the amount of time that has past, this Court should treat it as a de facto permanent stay; and, because the DPP intends only to prosecute all three accused jointly, it is now manifestly unreasonable for the Attorney to continue with the request for extradition as the Attorney would know – or ought to know – that Mr Johnson could not be presented for a joint trial when his two co-accused enjoyed the benefit of a de facto permanent stay.

35                  The role of this court, in reviewing the exercise of an administrative discretion is limited; it is not open to the court to substitute its own decision for that of the Attorney’s.  The position was explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 41:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power:  … .  I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.  This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.”

36                  Northrop J explained the Court’s function in Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147ALR 608 at 610-611 in these words:

“In proceedings like the present where an interested party is seeking a review of a decision made by the minister in his capacity of an administrative decision-maker, it is important to understand the role of the court.  The court does not exercise the discretion or power conferred by the law upon the administrative decision-maker.  The court must determine whether the administrative decision-maker has exercised the discretion or power according to law.  In other words, the court must determine whether the administrative decision-maker has made any error in law in making the decision under review.  Where the administrative decision-maker has given reasons for making the decision, the court is required to consider those reasons and determine whether they disclose any error of law.  In considering those reasons, care must be taken by the court to avoid the temptation to substitute its views on what should have been done for the views of the administrative decision-maker.  The legal position has been stated clearly by the High Court.”

37                  The position at common law has been stated by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 at 230 this way:

“It is true to say that, if a decision on a competent manner is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.  That, I think, is quite right; but to prove a case of that kind would require something overwhelming …”.

38                  Wilcox J thought that the word “overwhelming” might be too harsh a test: Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 561.  Be that as it may, there is still a heavy onus on the applicant to convince the Court that it should interfere with the exercise of a discretionary power.

39                  It is apparent from the papers that there is a disagreement between the South Australian Legal Services Commission and the Legal Aid and Family Services Division of the Attorney-General’s Department about the ability of the former to fund Messrs Fuller and Cummings.  However, I do not consider that it is the role of this court to examine the nature of that disagreement.  It is not the role of this court to investigate their competing views.  It is sufficient, at this stage, to note that there is a divergence of views and that the Attorney-General’s Department consider that sufficient funds would be available.  Exhibit R10 is a letter dated 27 January 1999 from the Attorney-General’s Department to Ms Joan Jardine, the Commonwealth’s Nominee to the Legal Services Commission of South Australia.  The letter dealt with the Division’s views on the subject of legal aid funding for Messrs Fuller, Cummings and Johnson.  It said in part:

“You will also note from this letter that there is to be an additional $1m made available to LSCSA in 1999-2000 for Commonwealth matters, because the final subsidy for State matters will then have been paid.

The Commonwealth remains of the view that the Commission has not yet satisfactorily followed the Commonwealth guidelines.  The Commission may argue that it will need to divert funds from its family law budget if we continue to insist that it explore other means of funding this case.  However, we believe that it should have sufficient Commonwealth resources to meet the cost of this matter without having to do this.”

40                  I acknowledge that the views of the Attorney-General’s Department may turn out to be wrong.  Perhaps appropriate funds will not be available to Messrs Fuller and Cummings to conduct their defence; or perhaps Mr Johnson will make a successful Dietrich application but there will be insufficient funds available for his defence; perhaps both these eventualities will transpire.  It is not possible at this stage to express a concluded view without engaging speculation.  But that does not therefore mean that this Court should interfere in the extradition process.

41                  The complaints of the applicant may be summarised in these terms:

·                 the Attorney failed to inquire of the DPP whether there was any possibility that the DPP might depart from his current position – i.e., would the DPP prosecute Mr Johnson alone.  It was therefore manifestly unreasonable of the Attorney to proceed with the extradition on the untested possibility that the DPP might change his mind;

·                 the Attorney failed to inquire of the Legal Service Commission so as to ascertain the current position of funding.  It was therefore manifestly unreasonable of the Attorney to proceed with the extradition on the mere possibility that the Legal Service Commission might change its earlier decision and make funding available to Messrs Fuller and Cummings;

·                 the Attorney failed to inquire of the DPP whether he would oppose any Dietrich application that may be made by Mr Johnson and whether there were any plausible grounds upon which such opposition could be mounted.

42                  The practical responsibilities of a Minister, when considering a matter upon which he or she should make a decision has been stated by Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 at 30-31:

“Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter.  It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department.  No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial.  But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.”

43                  The Attorney was assisted in his deliberations by two memoranda, or briefing papers, the contents of which must be considered in order to see whether, as counsel for the applicant submits, “a material fact which he is bound to consider” was absent in the briefing papers.

44                  Exhibit R3 is a document of five pages that is entitled “Withdrawal of the Extradition Request:  Consideration of the Grounds Nominated in Johnson’s submissions”.  It is not dated nor is its author identified; it was however treated by both parties as an internal document that was created within the Attorney-General’s Department.  Exhibit R3 was attachment “E” to the principal briefing paper (which is to be found at pages 207-210 of the Book of Documents).  This briefing paper is a document of four pages entitled “Extradition of Malcolm Keith Johnson from the United Kingdom”; it was prepared on the letterhead of the Attorney-General’s Department and it contains a statement of material facts, concluding with the recommendation that the Attorney-General should decide not to withdraw the request for Mr Johnson’s extradition.  It is signed by its originator and endorsed by three other officers.  The recommendation in the briefing paper was approved by the Attorney-General who signed it on 13 April.

45                  In the principal briefing paper, the Attorney-General was informed that one of the submissions that had been made on Mr Johnson’s behalf was that the extradition request should be withdrawn because:

“Johnson will not be prosecuted in Australia as he is likely to be refused legal aid funding, and given his indigence, he will obtain a stay of prosecution for the same reasons as his co-accuseds, Messrs Fuller and Cummings did (the Dietrich principle).”

The Attorney’s attention was thereby directed to the situation as it applied to Messrs Fuller and Cummings.  There was attached to the principal briefing paper a copy of the principal submissions from Mr Johnson’s solicitors, that is, Messrs Lempriere Abbott McLeod’s letter of 9 October 1998.  That letter also addressed the predicament of funding for Messrs Fuller and Cummings.  It said in part:

“On 29 August 1997 the two co-accused of Mr. Johnson, Messrs. Michael Fuller and Joseph Cummings, obtained a stay of proceedings (in relation to the charges that they stand accused of with Mr. Johnson) from the Full Court of the Supreme Court of South Australia pursuant to the Dietrich principal.  We understand that, despite further applications being made to the Legal Service Commission of South Australia, funding to those two men has been refused by the Legal Services Commission of South Australia.”

46                  There is further information in the principal briefing paper about the Dietrich stay and Messrs Fuller and Cummings:

“13.     The submission from Johnson’s solicitors points to the Dietrich stay of prosecution granted in respect of his co-accused, Messrs Fuller and Cummings.  The solicitors argue that you should not be seeking Johnson’s extradition because there is no likelihood that there will ever be a trial of this matter in Australia.  They anticipate that Johnson would make an (unsuccessful) legal aid application in South Australia, that he would not be able to fund an adequate and proper defence himself, and that a court would therefore grant him a Dietrich stay.

  14.     Johnson’s solicitors have provided copies of correspondence from the South Australian Legal Services Commission (LSCSA) and the Legal Aid Branch in support of the contention that he would not receive legal aid if he were returned to Australia to face trial.  The correspondence demonstrates that the LSCSA has refused to grant Messrs Fuller and Cummings legal aid on the basis that the Commonwealth legal aid guidelines would not, in its view, allow it to meet the high costs of such a complex trial.”

It is therefore not correct to assert, as counsel for Mr Johnson asserted, that there was an absence in the briefing papers of any reference to the stay obtained by Messrs Fuller and Cummings (which meant that the Attorney did not have regard to this matter when he made his decision).  The subject of that stay was extensively covered in the letter from Messrs Lempriere Abbott dated 9 October 1998 and that letter was an attachment to the briefing papers.  As an attachment, it and the information that it contained was therefore before the decision-maker at the time when he made his decision.

47                  The conclusion that was contained in the principal briefing paper is, in my opinion, of significance in this case.  Bearing in mind that the briefing paper addressed the two aspects of Mr Johnson making a Dietrich application and Messrs Fuller and Cummings having obtained a stay of their prosecution the authors said:

“We would not recommend the making or the maintaining of an extradition request if it was apparent that the relevant Australian prosecuting authority did not intend to proceed against the fugitive upon his or her return, or that the authorities could not proceed against the fugitive in respect of the relevant offences.  In such circumstances, the extradition request may be regarded as lacking a proper purpose.  In this case, the DPP has confirmed that it still intends to prosecute Johnson if he is extradited to Australia.  In all the circumstances, there is no clear legal impediment against the prosecution proceeding, and there is at least some prospect of Johnson being brought to trial.”

That was a balanced statement that fairly summarised the position.  The contents of the two briefing papers and the attachments contained adequate information with respect to the circumstances concerning Messrs Fuller and Cummings to enable the Attorney-General to make a proper decision.  It could not be said that his decision was manifestly unreasonable.  In my opinion, the decision of the Attorney was reasonably open to him on the information that was before him.  This Court would not be justified in intervening.

The delay in instituting the current proceedings

48                  Even if I had come to a conclusion that the Attorney had failed to have due regard to a material issue, there would remain the question whether I should, in the exercise of my discretionary power, interfere with the decision that the Attorney has made. In considering the question of the delay in the institution of these proceedings it is important, in my opinion, to identify the subject matter that has brought Mr Johnson to the Court.  Whilst acknowledging that there are possible permutations, the current proceedings stem back to the success of Messrs Fuller and Cummings in their Dietrich application.  That success occurred on 29 August 1997 when the South Australian Court of Criminal Appeal handed down its judgment.  It could not, of course, be said of Mr Johnson, who was then residing in the United Kingdom, that he learnt of Messrs Fuller’s and Cummings’ success on that date.  Undoubtedly some measure of time would have passed before news of it reached him.  Even then, it would be unreasonable to expect Mr Johnson to have reacted immediately; he was entitled to consider the issue and to take advice; in particular, he was entitled to wait a reasonable period of time to see whether the authorities would react to the Dietrich stay by making satisfactory funding arrangements for Messrs Fuller’s and Cummings’ defence.

49                  Bearing those factors in mind, the first subsequent date that can be identified as an indicator of Mr Johnson’s reaction to the Dietrich stay is 27 August 1998, the date on which Mr Johnson’s present South Australian solicitors first wrote the Attorney-General.  This means that twelve months had intervened between the date of the order of the Court of Criminal Appeal and Messrs Lempriere Abbott McLeod’s letter to the Attorney-General.

50                  For the reasons that I have set out, this does not mean that there was a delay of twelve months by Mr Johnson; I have explained that he was entitled to take time to consider his position and to await developments on the funding issue.  At the other end of the period, it could not be expected that his solicitors would have written the Attorney-General on the day that they received Mr Johnson’s instructions.  They were entitled to take time to make appropriate inquiries.  Despite making allowance for all these factors there still remains, in my opinion, an unexplained gap of a substantial period – I would say at least four to six months.  Mr Johnson is the supplicant; knowing of Messrs Fuller’s and Cummings’ success and assessing its effect on him, he was entitled to approach the Attorney-General asking him whether he would consider withdrawing the request for extradition.  But it was incumbent on Mr Johnson  to act with expedition and it was incumbent on him to establish to the satisfaction of the Court that he has acted with expedition.  This he has failed to do.  The material that has been placed before the Court shows that his solicitors acted appropriately from the time of their first letter to the date when the application in this matter was filed; their conduct could not be faulted.  But there is nothing in the papers explaining the gap in time between the publication of the reasons of the Court of Criminal Appeal and the time when Mr Johnson first instructed his solicitors.  That failure on the part of Mr Johnson weighs heavily against him in the exercise of my discretionary powers.  I do not suggest that there is any onus on Mr Johnson to prove that “special circumstances” existed to explain the reasons for his delay but, generally, a Court needs to know that there is an acceptable explanation.  Speaking of an application for an extension of time within which to institute proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth), Wilcox J said in Hunter Valley Developments Pty Ltd v Kohen (1984) 3 FCR 344 at 348:

“It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.”

51                  In my opinion, those principles apply to the present application.  The unexplained delay in bringing this application is sufficient to dismiss it.

Fragmentation of the Criminal Process

52                  The Full Court in Johnson v Holmes (see above) pointed out that the various grounds that Mr Johnson proposed to take in his application under the Administrative Decisions (Judicial Review) Act (i.e. the first proceedings) could be taken in the criminal proceedings themselves, if Mr Johnson were to be returned to Australia:  see also Newby v Moodie (1988) 83 ALR 523 at 528-529 where the Full Court said:

“Cases abound in which the court has said that the power to make an order of review in respect of committal proceedings should be exercised only in the most exceptional cases.  What was said in Lamb v Moss (1983) 49 ALR 533 at 564 to this effect has been consistently followed in subsequent decisions of this court.  We are of the view that the same principle should be applied to applications of this sort.”

That passage was quoted by the members of the Full Court in Johnson v Holmes who said that those principles applied “equally in the present case”.  In my opinion the problems arising as a result of fragmentation should also be taken into account in determining how I should exercise my discretionary power.  My refusal to interfere at this stage is not the end of the matter.  Mr Johnson, if he is extradited, will still be able to enjoy such benefits as might flow through to him if the DPP is unable to proceed against Messrs Fuller and Cummings and elects to proceed against Mr Johnson alone.  Admittedly, Mr Johnson and his family will have been inconvenienced by him having been brought back to Australia to face the charges that have been laid against him.  I have not overlooked that important factor; but in the totality, in the exercise of my discretion, I think that it is outweighed by the seriousness of the charges, the magnitude of the money involved and the amount of time that has already elapsed.

53                  Furthermore, to intervene at this stage would mean that this Court would fragment the course of the extradition process.  As Mason CJ said in Yates v Wilson (1989) 168 CLR 338 at 339:

“The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.  It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administration Decisions (Judicial Review) Act …”

54                  In Harris v Attorney-General (1994) 52 FCR 386, the appellant, an Australian national, was fighting to avoid extradition to Argentina.  He sought judicial review, under s 39B of the Judiciary Act, of the Attorney’s decision to issue a notice to a magistrate informing of the request for extradition.  After referring to the passage from Yates v Wilson that is set out above, the Full Court said that there are:

“… sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, for instance the determination of a discrete point of law on uncontested facts.”

55                  The reluctance of the Courts to interfere in the extradition process is to be borne in mind.  That is not to say that the Courts can never intervene; but it does mean that they should be slow to do so – the more so when, as here, the accused person will retain all rights of objection and challenge when his prosecution is called on for hearing.

56                  The return of Mr Johnson will, in my assessment of the matter, force the prosecuting authorities to make a final decision.  Will they proceed against all three accused or only Mr Johnson?  Will they organise funding for Messrs Fuller and Cummings and (should he make a successful application) for Mr Johnson?  If on the other hand, the Court interferes with the extradition process at this stage, the matter is thrown back into a state of uncertainty.  Will it mean a fresh application for extradition?  Or would it be sufficient for the Attorney to reconsider Mr Johnson’s application in light of the issues that were raised on his behalf in these proceedings?  When will the House or Lords give its decision and what time will be available to the Attorney to reconsider the matter?  All these are matters upon which minds might differ.  Bearing in mind that Mr Johnson will have lost none of his rights to argue the matters that he identified in his first proceedings and in these current proceedings, I have concluded that it would be undesirable for this Court to intervene by the exercise of any discretionary power that may be available to me.

57                  The application is dismissed with costs.

Associate:

Dated:              7 May 1999