FEDERAL COURT OF AUSTRALIA

Heslehurst v Government of New Zealand [2001] FCA 202

EXTRADITION - extradition from Australia to New Zealand - warrants - whether warrant purported to be issued by a judge of a court of New Zealand.

EXTRADITION - extradition from Australia to New Zealand - ill health of appellant - appeal from orders made under s 34(1)(c) of Extradition Act 1988 (Cth) - whether extradition unjust, oppressive or too severe a punishment.

Extradition Act 1988 (Cth) ss 5, 19(7), 28, 34(1)(c), 34(2), 35, 35(6)(d) and 35(6)(e)

Kenneally v New Zealand (1999) 91 FCR 292 considered

New Zealand v Venkataya (1995) 57 FCR 151 considered

Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 considered

Rahardja v Republic of Indonesia [2000] FCA 1297 considered

Bennett v Government of the United Kingdom [2000] FCA 916 considered

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 referred to

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 referred to

CDJ v VAJ (1998) 197 CLR 172 referred to

Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 referred to

Florance v Andrew (1985) 58 ALR 377 referred to

Guss v Johnstone [2000] FCA 1455 referred to

MAXWELL JOHN HESLEHURST v THE GOVERNMENT OF NEW ZEALAND

N 1044 OF 2000

LINDGREN, NORTH & MANSFIELD JJ

12 MARCH 2001

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This appeal concerns provisions of the Extradition Act 1988 (Cth) (“the Act”).

2                     On 23 June 1999, a magistrate of the State of New South Wales made an indorsement under s 28 of the Act on a warrant dated 26 May 1999 for the arrest of the appellant (“the warrant”).  The indorsement authorised the arrest of the appellant in Australia.  He was arrested here.  On 23 March 2000, a magistrate of the State of New South Wales made an order under s 34(1)(c) of the Act that the appellant be surrendered to New Zealand.

3                     In this Court, the appellant sought an order quashing the indorsement on the warrant.  He contended that the Court had power to grant that relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  The issue between the parties was whether the warrant was a “New Zealand warrant” within the meaning of the Act.  The respondent did not dispute that if the appellant succeeded on that point, the Court had power under s 39B of the Judiciary Act to quash the indorsement.  The learned primary Judge concluded that the warrant was a “New Zealand warrant” as defined in the Act, and dismissed the application. 

4                     The appellant also sought review of the order for surrender made under s 34(1)(c) of the Act.  He contended that the magistrate erred in not being satisfied that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.  That order is reviewable under s 35 of the Act.  The review is “by way of rehearing” and the Court may have regard to the evidence before the magistrate or additional evidence, including evidence in substitution for the evidence before the magistrate: s 35(6)(d) of the Act.  The learned primary Judge did receive further evidence on the review hearing, but confirmed the order that the appellant be surrendered to New Zealand. 

5                     The appellant appeals from her Honour’s orders.  The arguments advanced on the appeal appear largely to correspond with those advanced before the learned primary Judge on the same issues.

6                     Part 3 of the Act deals exclusively with extradition from Australia to New Zealand.  The primary judge noted the background to Part 3 by reference to a passage from New Zealand v Venkataya (1995) 57 FCR 151 at 163-164 per Sackville J and quoted with approval by the Full Court in Kenneally v New Zealand (1999) 91 FCR 292 (“Kenneally”) at 294 in the following terms:

“The bill contains a special part which governs extradition relations with New Zealand.  Our close ties with that country have made appropriate a reciprocal regime which bears a very close similarity to the extradition relations between the various Australian States and Territories contained in the Service and Execution of Process Act 1901 (Cth).  Fugitives are moved between Australia and New Zealand by a process based on the backing of warrants by magistrates.  The whole process is normally handled by the police in exactly the same way as an interstate extradition would be handled.  The bill’s only innovation in this area is to permit temporary surrender to New Zealand.”

a “new zealand warrant”?

7                     The provision primarily relevant to the issue whether the indorsement by the magistrate on the warrant was an indorsement on “a New Zealand warrant” is s 28.  It provides:

“Where:

(a)           an application is made, in the statutory form, on behalf of New Zealand to a magistrate for the indorsement of a New Zealand warrant under this subsection; and

(b)           the magistrate is informed by affidavit that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia;

the magistrate shall make an indorsement on the warrant, in the statutory form, authorising the execution of the warrant in Australia by any police officer.”

8                     Section 5 defines a ‘New Zealand warrant’ in the following terms:

“‘New Zealand warrant’ means a warrant that purports to be issued by a court, a judge, a magistrate or an officer of a court, of New Zealand, being a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand.”

9                     The appellant contended before the primary Judge, and contends on the appeal, that the warrant was not one which “purport[ed] to be issued by a court, a judge, a magistrate or an officer of a court of, New Zealand” or which was “for the arrest of a person accused…of an offence against the law of New Zealand.”  The warrant was in the following terms:

“WARRANT TO ARREST IN SUMMARY PROCEEDINGS

(Section 19(1)(c) - Summary Proceedings Act 1957)

(Where issued by a District Court Judge)

…

TO:     Every Constable

On the 16^th December 1996 informations were laid that

Maxwell John Heslehurst of Flat B, 17 Moana Place Mangere Bridge (hereinafter called the defendant) at Auckland on 20^th August 1996

With Intent to defraud by a false pretence falsely represented that he was a repossession agent authorised to sell or offer to sell a Holden Senator obtained possession $6500.00 valued at $6500.00;

On 20^th August 1996

With Intent to defraud by a false pretence falsely represented that he was a repossession agent authorised to sell or offer to sell a BMw 535 obtained possession $13110.00 valued at $13110.00;

On 10^th July 1996

With Intent to defraud by a false pretence falsely represented that he was a repossession agent authorised to sell or offer to sell a Maxda Capella obtained possession $1931.00 valued at $1931.00

I am of the opinion that there are grounds for the issue of a warrant.

AND I DIRECT YOU to arrest the defendant and bring him before a District Court as soon as possible to answer to the informations

DATED at Auckland this 26th day of May 1999.

(signed)

---------------------------

J Cadenhead

District Court Judge”

10                  The cases on documents purporting to be of a certain kind suggest that the purporting (professing or claiming) must appear on or from the face of the document: cf Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 (Hill J) at 452; Rahardja v Republic of Indonesia [2000] FCA 1297 (FC) at [111]; Bennett v Government of the United Kingdom [2000] FCA 916 (Katz J) at [32], [33].  It can be seen from the terms of the warrant set out above that the document purported to be a “Warrant to Arrest in Summary Proceedings”:

·        issued at “Auckland”;

·        by “J Cadenhead District Court Judge”;

·        under s 19(1)(c) of a “Summary Proceedings Act 1957”;

·        alleging commission of offences “at Auckland”; and

·        by the appellant of “Flat B, 17 Moana Place, Mangere Bridge”.

11                  There is no reason to think that the only way for a document to “purport to be issued by a¼judge…of New Zealand” for the purposes of the definition of “New Zealand warrant” in s 5 of the Extradition Act 1988 (Cth) (“the Act”) is for it to refer to New Zealand expressly.  What a document purports to be raises questions of construction and of the background knowledge of the reader.  The significance of the terms of a document will differ as between readers because they bring to bear on the reading of it differences in background knowledge. 

12                  In the present case the indorsing magistrate and the reviewing judge were entitled to take “judicial notice” of the fact that Auckland is a major city on the North Island of New Zealand.  The proceeding before the magistrate (an application under s 28 of the Act for indorsement on a warrant) was appropriate to commence a proceeding for the extradition of a person from Australia to New Zealand under Part III of the Act, but not for the extradition of a person from Australia to any other country under Part II of the Act (cf the application to a magistrate for the issue of a warrant for arrest, for which s 12 of the Act provides).

13                  The magistrate asked to make an endorsement under s 28 of the Act and the primary Judge carrying out the review function for which s 35 of the Act provides were, alike, required to answer the question: “Does the warrant make a claim to be issued by a Judge of New Zealand?”  In our view, by either one of two courses of reasoning, they were correct to answer that question “yes”.

14                  First, in the absence of judicial notice of the existence of any Auckland other than the one in New Zealand, they were entitled to accept that the “Auckland” referred to in the warrant is the one in New Zealand, of the existence of which they had judicial notice.  It was the appellant who led evidence of matters extraneous to the warrant.  He did so with a view to establishing that its reference to “Auckland” was ambiguous because there is also an Auckland in the State of Montana in the United States of America and another one in The Netherlands.  Her Honour dealt with this submission, as she was entitled to do, by referring to other extraneous evidence as follows (at[17]):

“I conclude that they [the Auckland of Montana and the Auckland of The Netherlands] must be places of minor significance.  Extracts from the Britannica Atlas and The New International Atlas published by Collins were received in evidence.  The index to each of these atlases records only one place named simply ‘Auckland’.  For completeness I note that the indices record also ‘Auckland Islands’, ‘Auckland Park’ and ‘Auckland Park Race Course’.  The references to ‘Auckland’ in the indices are shown by the page reference and positional information given in each case to be references to a major city in the North Island of New Zealand”.

As well, if the Auckland of the warrant had been that of The Netherlands, one would expect the warrant to have been in the Dutch language or to have borne an indication that it was an English translation from an original in that language.

15                  To insist that the terms of a warrant exclude the possibility of its having been issued by a judge of another country having a place called “Auckland” seems to be tantamount to insisting that those terms refer to New Zealand expressly, at least where another place called “Auckland” can be found to exist somewhere in the world.  But, as noted above, we do not think that an express reference to New Zealand should be accepted as the only means by which a warrant may purport to have been issued by a judge of that country.  A more “practical” and “realistic” approach should be taken, based on the judicial notice to which we referred earlier.  The magistrate and Judge had judicial notice of the existence of the Auckland of New Zealand and there was no competing judicial notice of the existence of any other city of that name.

16                  We turn now to the second course of reasoning to which we referred.  In answering the question posed, a magistrate or judge is entitled, in our view, to have regard to information extraneous to the warrant, the correctness of which cannot reasonably be questioned, and which is available from a document or documents, the authority of which cannot reasonably be questioned.  I do not think that what the warrant purports to be must be assessed on the basis that the reader will not acquire any information from sources outside its four corners.  Once this is accepted, it is clear that the warrant in this case purported to be issued by a judge of New Zealand.  The learned primary Judge identified the considerations which point to that result.  Information of the kind described showed that:

·        there was a statute of the Parliament of New Zealand with the short title “Summary Proceedings Act 1957”; and

·        there was a Judge of the District Court of New Zealand called “John Cadenhead”.

17                  By this alternative course of reasoning also the warrant purports to be issued by a judge of New Zealand.

the order under section 34(1)(c)

18                  The magistrate’s order that the appellant be surrendered to New Zealand was made under s 34(1)(c) of the Act.  The primary Judge reviewed that order “by way of rehearing”:  s 35(6)(d).  Subsection 34(2) was relevant to the making of that order by the magistrate.  It provides:

“If the magistrate is satisfied by the person that, because:

(a)      the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;

(b)      if the offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or

(c)       a lengthy period has elapsed since that offence was committed or allegedly committed;

or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released.”

19                  The appellant, relevantly for the purposes of this appeal, contended before the primary Judge that it would be “unjust” or “oppressive” to order his surrender to New Zealand because he was unfit to travel to that country.  He claimed that his general state of health, and, alternatively, his vulnerability to deep vein thrombosis, precluded him from safely travelling to New Zealand.  Her Honour was not satisfied that those factors rendered it unjust or oppressive to surrender the appellant to New Zealand.  The appellant complains of that conclusion.  We refer to her Honour’s reasons for that conclusion below.  Other matters were also argued touching upon whether it would be “unjust oppressive or too severe a punishment” to surrender the appellant to New Zealand, but were rejected by her Honour.  Her conclusions in relation to those other matters were not the subject of complaint in the grounds of appeal, or in the appellant’s submissions on appeal.  It is not necessary to refer to them.

20                  On 3 July 2000, the primary Judge had dismissed an application by the appellant for release on bail until the review under s 35 of the magistrate’s order that he be surrendered to New Zealand.  Her Honour on that bail hearing received evidence about the state of the appellant’s health, his need for medical treatment and the effects on his health of continued incarceration.  That evidence included medical evidence from Dr Bruce Westmore, forensic psychiatrist, Dr John Greenaway, physician, and Dr Richard Matthews, Acting Chief Executive Officer of the Corrections Health Service.  That evidence was also before her Honour on the review hearing.  Relevantly to the issue on appeal, her Honour also received evidence from Mr Simon Lowe, Air New Zealand Reservations Sales Manager, and from Dr Lorant Joseph Varga, Medical Practitioner employed by the Corrections Health Service.  Dr Varga’s evidence was the only medical evidence explicitly directed to the question whether the appellant was medically fit to travel by air from Sydney to New Zealand.  However, for reasons which it is not necessary to relate, little weight was given to his opinion.  It did not play any significant part in her Honour’s decision, and the respondent did not urge on this appeal that the Court should have regard to it.

21                  Her Honour found that the appellant is in seriously poor health as he suffers from hypertension, diabetes, respiratory problems and a sleep disorder.  He is very obese, and that obesity makes his medical condition resistant to treatment.

22                  Mr Lowe has the responsibility of making arrangements for passengers suffering a medical condition who wish to travel or are required to travel.  Such a passenger is required to complete a “medical fitness for air travel” form, which includes a certificate to be given by a doctor (who will usually be the passenger’s doctor) that the passenger is safe to undertake the proposed flight.  That certificate requires the doctor also to agree that services requested (such as seating, wheelchair facilities, and oxygen during the flight) are appropriate.  It contemplates circumstances where the passenger will be escorted by a qualified doctor or nurse.  The flight from Sydney to Auckland is of three hours’ duration.

23                 Her Honour concluded:

“Although, as I have mentioned, I am satisfied that the applicant is in seriously poor health, he has not satisfied me that his health is such that it would be oppressive to surrender him to New Zealand.  Although it seems likely that there could be occasions on which the applicant’s health would render him unfit to travel, nothing before me suggests that he would ordinarily be unfit to endure a three hour flight.  The procedures of which Mr Lowe gave evidence would be likely, in my view, to ensure that the applicant would only be carried on a flight to New Zealand if a medical practitioner were satisfied as to his fitness do so at that time.  He could receive oxygen if he were to experience respiratory problems during the flight.  I am not satisfied that the applicant’s health is such that it would be ‘unjust, oppressive or too severe a punishment’ to surrender him to New Zealand.” (our emphasis)

24                  The appellant attacked that conclusion.  In part, his contentions are not directly to the point.  He complained of the reliability of Dr Varga’s opinion, and that he had not had an adequate opportunity to address that opinion (although he did not at the review hearing seek any such opportunity).  As Dr Varga’s opinion did not really weigh in the decision of the primary Judge, and the respondent does not now rely upon it, those complaints do not demonstrate any reviewable error on the part of the primary Judge.

25                  We consider that the attack upon the conclusion of the primary Judge on the principal issue of fact must also fail.  As her Honour’s reasons indicate, she accepted that there may be occasions when the appellant’s medical condition would prevent him from undertaking a flight from Sydney to Auckland, but she was not persuaded that this would always or ordinarily be the case.  Her Honour had regard to the views of Drs Westmore, Greenaway and Matthews.  She is not shown to have misapprehended the effect of any of their evidence.  None of their evidence expressly stated that the appellant would ordinarily be unable to undertake such a flight.  Her Honour then had regard to the evidence of Mr Lowe as to the medical support facilities which may be made available to a person such as the appellant, and to his evidence that the appellant would be accepted on such a flight only if a medical practitioner was satisfied at the particular time that the appellant was fit to undertake the flight, and that the medical support facilities available to him were appropriate.

26                  The appellant contended that the Court should revisit the general medical evidence, and elicit from that evidence an inference that the appellant is ordinarily unfit to travel on a three hour flight due to his medical condition, including his vulnerability to deep vein thrombosis.  In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359,  Beaumont and Lee JJ said (at 369):

          “However, the hearing of an appeal in this court is neither a trial de novo nor a trial of the case afresh on the record (Duralla Pty Ltd v Plant (1984) 2 FCR 342) and the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment.  The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence.  The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.  Where the majority judgment in Warren v Coombes, [(1979) 142 CLR 531] (at CLR 552-3) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected:  see also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ at 304, per Menzies J at 308-9 and per Walsh J at 318-19.”

Those views were cited with approval by the Full Court (Lockhart, von Doussa and Sackville JJ) in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 423-424.

27                  We are not satisfied that the findings of the primary Judge referred to above are incorrect.  Indeed, in our view those findings were clearly available to her Honour.  The appellant did not refer to any particular part of the medical evidence of Drs Westmore, Greenaway and Matthews to support his contention that an opposite conclusion should have been reached.  He referred to the fact that Dr Matthews had not examined him, and that his reports were prepared from a perusal of the appellant’s medical file held by the Corrections Health Service.  The primary Judge must have been aware of that, as it was expressly stated in Dr Matthews’ report of 30 June 2000.  More significantly, even excluding Dr Matthews’ reports from consideration, the conclusions of the primary Judge about the nature and extent of the appellant’s medical condition were clearly available to her, and the unchallenged evidence of Mr Lowe was accurately understood by her Honour.  The evidence of Drs Westmore and Greenaway did not indicate that ordinarily the appellant would be unfit to undertake a three hour flight if given appropriate medical support.

28                  The approach of the learned primary Judge to determining whether it would be oppressive to order that the appellant be surrendered to New Zealand because of the threat to his health by undertaking a three hour flight is also not shown to have been in error.  The onus was upon the appellant to satisfy her Honour of that matter: Kenneally at 307 [69].  As the appellant did not satisfy her Honour that ordinarily he would be unfit to undertake a three hour flight to Auckland with appropriate medical support, it was appropriate for her Honour then to have regard to Mr Lowe’s evidence as to the circumstances in which Air New Zealand would accept the appellant as a passenger on such a flight.  Those circumstances include that, at the time of the proposed travel, a medical practitioner must certify that the appellant is fit for the journey having regard to the supporting medical facilities or assistance available.  No error of law is shown in the primary Judge’s approach to that question.

29                  In our view, the appeal in relation to the order made for surrender under s 34(1)(c) must fail.  There are, however, two additional matters to be noted.  The first concerns the appellant’s notice of motion dated 4 December 2000 by which he sought leave to adduce further evidence in support of his case upon this appeal.  He told the Court that the proposed evidence related to the general vulnerability of persons undertaking lengthy flights to deep vein thrombosis.  That fact was to be demonstrated by copies of various recent newspaper reports on that topic, rather than by medical evidence.  The appellant did not seek to adduce any medical evidence which had not been presented to the primary Judge specifically concerning his own medical condition, either generally or in relation to his physical capacity to undertake a flight to New Zealand.  Section 35(6)(e) makes it plain that on this appeal the Court must have regard only to the material that was before the primary Judge.  That provision forecloses the appellant from succeeding on the motion.  In any event, even if some residual discretion to receive further evidence on this appeal resided in the Court, we would not receive the proposed further evidence.  The proposed evidence has no particular probative significance.  The primary Judge accepted the general medical evidence adduced by the appellant on his bail application, and on the review, which included reference to his circulatory problems.  The medical examination which will be required before the appellant is cleared to undertake the flight to Auckland for the purposes of the medical certification referred to will have to address the medical issue as to the appellant’s claimed vulnerability to deep vein thrombosis.  In those circumstances the proposed evidence lacks the cogency necessary to permit its reception: see generally CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ at 199-202; Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 per Dixon CJ at 444; Florance v Andrew (1985) 58 ALR 377 at 382 per Lockhart J; Guss v Johnstone [2000] FCA 1455 (Drummond, Sackville and Dowsett JJ).

30                  The second point concerns a submission not raised in the grounds of appeal, but faintly put by the appellant in the course of his reply.  He adverted to the period he has been in custody in Australia, compared to the period of imprisonment he claims he might face if surrendered to New Zealand and then convicted of the three offences alleged in the warrant.  The comparison, he said, meant that it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand.  The appellant’s claim involves the assumption that the period of his imprisonment in Australia is attributable to the indorsed warrant.  That is plainly not the case.  He was arrested in mid 1999 on the authority of the indorsed warrant, upon his release from custody at the conclusion of a term of imprisonment for offences committed under the Crimes Act 1900 (NSW).  The primary Judge was not satisfied that the period the appellant has spent in custody in Australia, in the circumstances, would result in his surrender to New Zealand being unjust or oppressive or too severe a punishment.  No error has been shown to exist in her Honour’s having reached that conclusion, or in her reasons for doing so.

31                  After judgment was reserved, the appellant’s wife sent to the Court further information about the appellant’s medical condition indicating that he will be unfit to travel for some time.  Apparently, his condition deteriorated a few days after the hearing and he was admitted to Concord Repatriation General Hospital.  Clearly, the Court cannot have regard to such material on this appeal.  In addition, we do not think that the further material would affect the result of the appeal.  The primary Judge had regard to the possibility of the appellant’s medical condition worsening so as to render him unfit to travel to New Zealand.  The passage from her Honour’s reasons quoted in par 23 above indicates that.  As her Honour observed, the sort of information now proffered is precisely the sort of information which will be considered when a medical practitioner is required to certify whether the appellant is fit to undertake a flight to Auckland and if so with what services or support.  Putting aside the question as to the propriety of the appellant’s wife having sent the further material to the Court, although her action is understandable in the circumstances, that material does not disclose any error on the part of the primary Judge.

CONCLUSION

32                  The appeal is dismissed.  The appellant should pay the respondent’s costs of the appeal.

Associate:

Dated:              12 March 2001