FEDERAL COURT OF AUSTRALIA

United Kingdom v Forsyth (No 2) [2003] FCA 1072

EXTRADITION – judicial review – extradition proceedings – magistrate hearing proceedings – application for bail – application refused – renewed application for bail – original warrant for arrest in requesting country administratively withdrawn – withdrawal subject to judicial review in requesting country – interim order as to validity made in requesting country – whether special circumstance – whether requested person ‘extraditable person’ – irrelevant consideration – error of law – jurisdictional error – certiorari issued quashing magistrate’s decision

Extradition Act 1988 (Cth) s 15

United Mexican States v Cabal (2001) 183 ALR 645 cited

Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 cited

Singh v United States of America [1997] FCA 612 cited

UNITED KINGDOM v CHARLES ALISTAIR FORSYTH

W203 OF 2003

FRENCH J

7 OCTOBER 2003

PERTH

THE COURT ORDERS THAT:

1.         An order in the nature of certiorari that the Second Respondent’s decision of 22 September 2003 to release the First Respondent on bail and his decision of 23 September 2003 to continue to release him upon bail be quashed.

2.         An order in the nature of mandamus directed to the Second Respondent to consider and determine the First Respondent’s application for bail according to law.

3.         The First Respondent is to pay the Applicant’s costs of the application.

4.         There is liberty to the parties to apply by written submission within forty eight hours for any further necessary directions relating to the implementation of these orders. 

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

REASONS FOR JUDGMENT

Introduction

1                     On 3 November 2002, Charles Alistair Forsyth was arrested on a provisional warrant issued under the Extradition Act 1988 (Cth) in respect of offences allegedly committed in the United Kingdom.  A warrant for his arrest had issued in that country on 17 October 2002.  Pending proceedings to determine his eligibility for extradition under s 19 of the Act Mr Forsyth applied for bail and was refused on the basis that there were no special circumstances justifying his release, as required by s 15 of the Act, and that he posed a real risk of flight. 

2                     In August 2003, however, the original warrant for his arrest was withdrawn in the United Kingdom, it is said, as the result of an administrative error.  An interim declaration of the validity of the warrant has since been obtained in the High Court of Justice pending determination of a substantive application for the declaration of its validity. 

3                     Mr Forsyth renewed his application for bail before His Worship Mr Robert Black SM and was granted bail on 22 September 2003 upon the basis that there was now a special circumstance, namely the possibility that he was not an extraditable person under the Act.   The United Kingdom seeks judicial review of that decision.

4                     For the reasons which follow, I am of the opinion that the learned magistrate’s decision to release Mr Forsyth on bail was flawed by jurisdictional error and that it should be quashed and the application reconsidered according to law.

Factual History

5                     Charles Alistair Forsyth is a citizen of the United Kingdom.  His parents are Australian citizens who live at Boyup Brook in Western Australia.  His brother also resides in Perth.  Mr Forsyth arrived in Perth from the United Kingdom on 2 October 2002.  His purpose in visiting Australia was said to be for business and to obtain urgent medical care and attention.  It was also evidently his intention to apply for a type 457 Permanent Resident Visa.  He had previously travelled to Perth on 9 May 2002 and remained here until 5 June 2002.

6                     On 17 October 2002, while Mr Forsyth was in Perth a warrant was issued out of the Selby Magistrates Court in Yorkshire in the United Kingdom for his arrest on a number of charges.  The charges are said to have related to:

(a)        fraudulent trading contrary to s 458 of the Companies Act 1985 (two counts);

(b)        breach of trade mark, contrary to s 92 of the Trade Marks Act 1998 (one count);

(c)        breach of copyright, contrary to s 107 of the Copyright Design and Patents Act 1988 (one count);

(d)        obtaining a pecuniary advantage, contrary to s 16(1) of the Theft Act 1968 (two counts);

(e)        furnishing false information, contrary to s 17(1)(b) of the Theft Act 1968 (three counts).

On 25 October 2002, His Worship Mr Heaney SM, at Perth, issued a provisional warrant for Mr Forsyth’s arrest pursuant to s 12(1) of the Extradition Act.

7                     On 3 November 2002, Mr Forsyth was arrested at Boyup Brook by the Western Australian Police Service and was remanded in custody by the Bunbury Magistrates Court on 4 November 2002.  At that time no application for bail was made. An application for bail was made by senior counsel on Mr Forsyth’s behalf at the East Perth Court of Petty Sessions on 11 and 12 November 2002 before His Worship Mr Black SM.  One of the circumstances relied upon in support of that application was Mr Forsyth’s medical condition.  The application was declined on the basis that the ‘special circumstances’ required by s 15 of the Extradition Act to be shown before bail could be granted, had not been made out.  His Worship, in declining the application, referred to the decision of the High Court in United Mexican States v Cabal  (2001) 183 ALR 645. 

8                     Circumstances which the learned magistrate considered and found not to be ‘special circumstances’ were:

1.         That there was no evidence of flight from the United Kingdom.  The learned magistrate held that the circumstances of Mr Forsyth’s departure from the United Kingdom could be characterised as flight.

2.         That it had not been established that any of the offences was an extraditable  offence.

3.         That there had been a serious delay in laying the charges which related to events in 1999.

4.         That there would be delay in determining the question of Mr Forsyth’s eligibility for extradition.

5.         That Mr Forsyth was no danger to the community.

6.         That Mr Forsyth’s parents are Australian citizens living in Boyup Brook who are prepared to provide a substantial surety.

7.         That Mr Forsyth entered Australia on his own passport and made no attempts to conceal his identity.

8.         That there was a risk to Mr Forsyth’s health if he were to be detained in custody.  This referred, it appears, to a seriously depressive mental state.   However appropriate treatment was said to be available if he were remanded in custody.

His Worship held that neither individually nor collectively did these circumstances amount to special circumstances necessary to empower him to grant bail.  In any event he found that there was a risk of flight which, in his opinion, was determinative. 

9                     The learned magistrate noted that Mr Forsyth had left the United Kingdom in circumstances in which he had agreed to be interviewed, he had failed to attend the interview and his solicitor had said his failure to attend was due to his hospitalisation.  Despite this, he was able to leave, and did leave London within days of being hospitalised.  His Worship referred to a French passport and driving licence in a false name found in Mr Forsyth’s belongings with his photograph in them.  He concluded that there was ‘… a real risk of flight’ and that in the circumstances, even if there were special circumstances, it was not appropriate to grant bail.  He remanded Mr Forsyth in custody to 12 December 2002.

10                  Mr Forsyth remained in custody.  Counsel renewed his bail application on 7 February 2003 on the basis that his medical condition had deteriorated.  The renewed bail application was set down for 28 February 2003 and a hearing, under s 19 of the Extradition Act, for 3 and 4 April 2003.  The bail application on 28 February was withdrawn.  A further renewed bail application was made on 14 March 2003 but then discontinued.  

11                  On 24 March 2003, following a change of Mr Forsyth’s solicitor, his s 19 hearing was relisted to 25 June 2003.  The new solicitors ceased to act on 13 May 2003 and another legal representative was engaged.  When the s 19 hearing came on on 25 June 2003 Mr Forsyth was by then not represented.  He applied for the hearing date to be vacated and succeeded in that application.  The matter was then set down again for 20 August 2003.  Further applications to vacate that date were made on 11 July 2003 and 8 August 2003.  They were refused.  An application to this Court for an order to review the magistrate’s decision to refuse to vacate the hearing dates was dismissed by Carr J on 19 August. 

12                  The s 19 hearing proceeded on 20 and 22 August 2003 and was adjourned part-heard. Mr Forsyth then informed the Perth Court of Petty Sessions that he proposed to consent to surrender under s 18 of the Act.  The matter was listed for mention on 22 September 2003.

13                  An extraordinary event occurred on 5 August 2003.  On that date the warrant for his arrest was withdrawn by a decision of the Selby Magistrates Court made pursuant to s 125(1) of the Magistrates Court Act 1980.  Solicitors, Zilkens & Co, acting for Mr Forsyth, wrote to the Commonwealth Director of Public Prosecutions on 22 September 2003 advising the DPP of the withdrawal.

14                  Mr Forsyth applied to His Worship, Mr Black SM on 22 September for his release from custody and for discontinuance (sic) of the proceedings on the ground that he was no longer an ‘extraditable person’ for the purposes of s 6(a)(i) of the Extradition Act.  The learned magistrate acceded to the United Kingdom request that it have an opportunity to obtain further information in relation to the arrest warrant.  His Worship however decided at that point that the possibility that Mr Forsyth might not be an extraditable person under the Act, as there might not be a valid warrant for his arrest, constituted ‘special circumstances’ justifying his release on bail.  He released Mr Forsyth on bail subject to:

1.         A bail undertaking of $100,000.

2.         A surety of $100,000.

3.         Surrender of all passports.

4.         A prohibition against approaching within 500 metres of any international point of departure.

In the course of submissions on that occasion His Worship put to counsel for the DPP the proposition that the possibility that a person was not an extraditable person constituted an exceptional circumstance.  It was put to His Worship that there was, in any event, still a flight risk and indeed an increased flight risk.

15                  His Worship’s reasons for decision were briefly stated and, as recorded in the transcript tendered on the hearing of this application, were as follows:

‘There’s an application before me for a reconsideration of bail in relation to these matters that is opposed.  I’m aware of what’s been said by the High Court in Cabal in respect of bail in these matters.  It’s for those reasons, the risk of flight, the exceptional circumstance required to be shown that bail was not granted initially and Mr Forsyth has been remanded in custody up until today.  There is before me documents from solicitors indicating that there are presently no outstanding warrants in the United Kingdom in relation to Mr Forsyth.  That, which if it is correct, would mean he would not any longer come within the definition of an extraditable person in the Extradition Act.

It is thought by counsel representing the United Kingdom that that is probably the case, though there is no clear evidence that that is so.  Clearly there has been a substantial change in the circumstance in that Mr Forsyth may no longer be subject to the Act.  Clarification cannot be obtained for some period of time, given the time differences between here and the United Kingdom and it is for that reason I’ve remanded the matter until tomorrow.  However, in the circumstances, given the matters that I have referred to, the change in circumstances or potential change in circumstance, which is probably the case, it seems to me that notwithstanding the matters referred to, the High Court question of risk of flight, etc, that it is appropriate to grant bail until tomorrow and I will do so.

However, I do take into account the matters raised by counsel as to questions of flight and there will need to be a surety in a substantial amount, together with other conditions.  You are to enter into a bail undertaking with a condition that you forfeit $100,000 if you default; secondly, you are to surrender all passports forthwith to the Clerk of Courts; thirdly, you are not to enter within 500 metres of any point of departure from Western Australia either interstate or international, until the matter is completed.  There is to be a surety undertaking with a condition that the surety forfeit $100,000 if you default.  This surety is to be approved by a justice.’

16                  On the following day counsel for the DPP tendered documents to His Worship which included an interim order made by Burton J of the High Court of Justice for England and Wales in proceedings between the Director of the Serious Fraud Office as claimant and the Selby and York Magistrates as defendants.  Mr Forsyth was named in the proceedings as an ‘Interested Party’.  The interim order which was made by consent of the defendants was in the following terms:

‘1.        Permission to apply for Judicial Review be granted.  Notice to be given forthwith to the Interested Party.

2.         Pending the hearing of the Substantive application it is declared that the decision of Selby Magistrates Court dated 5^th August 2003 (“the Decision”) purportedly made pursuant to section 125(1) of the Magistrates Court Act 1980 to withdraw the arrest warrant issued on 17 October 2002 against Charles Alistair Forsyth (“the arrest warrant”) does not affect the validity of the arrest warrant.

3.         Any Acknowledgement of Service and/or evidence in reply by either Defendant or Interested party, to be served by 4.30pm on September 30^th 2003.

4.         The hearing of this matter be Expedited.

5.         The costs of this application be reserved.

6.         There be Liberty to the Interested party to apply on written notice to the Claimant and Defendant to vary or discharge this Order.’ 

The basis upon which the Court made an interim declaration of the continuing validity of the arrest warrant does not appear from the materials.

17                  One of the documents tendered to the learned magistrate by the DPP was a letter from a Case Controller in the Serious Fraud Office of the United Kingdom to a Senior Legal Officer of the Extradition Unit in the Attorney General’s Department in Canberra.  That letter purported to ‘certify’ that the effect of the order of the High Court was that ‘the Arrest Warrant continues to remain valid and is to be regarded as never having been withdrawn’.  Another of the documents handed to the learned magistrate was a letter from the Senior Legal Officer in the Attorney General’s Department to Mr Putt at the Office of the Commonwealth Director of Public Prosecutions in Perth.  In that letter the Senior Legal Officer said he had been advised by the Senior Case Controller that ‘the original decision by the Selby Magistrates’ Court to quash the warrant for Mr Forsyth’s arrest was simply an administrative error made by the Selby Magistrates’ Court’.  The Senior Case Controller had advised that the Selby Magistrates’ Court had been acting to quash a number of long outstanding warrants and ‘inadvertently included the warrant for Mr Forsyth’s arrest in that administrative process’.  The High Court of Justice had been so advised and, made the order dated 22 September 2003, ‘on the basis that the action taken by the Selby Magistrates’ Court to quash the warrant for Mr Forsyth’s arrest was an administrative error and not an action taken for substantive reasons’.

18                  Mr Forsyth, who appeared on his own behalf on that occasion, told the learned magistrate that his arrest on 3 November 2002 prevented his proposed admission for urgent medical treatment in the Mount Hospital.  He told the learned magistrate that he had been on a semi-urgent waiting list at Royal Perth Hospital since 27 July. He tendered a letter from his general practitioner, Dr Flynn, dated 4 July 2003 which advised that he had been at risk of stroke and heart attack since he consulted Dr Flynn on 2 October 2002.  Dr Flynn said in the letter that he had advised Mr Forsyth on 29 October to obtain immediate care from an appropriate specialist.  It appears from material put before this Court, that Mr Forsyth suffers from a condition of his left adrenal gland which results in serious hypertension.  The relevant surgery apparently involves removal of that gland.

19                  Mr Forsyth gave the learned magistrate a further letter from a medical officer at the Hakea Prison Medical Centre dated 26 August 2003 which indicated that Mr Forsyth had asked him to confirm that he would not be fit to fly immediately after his impending surgery.  The medical officer, Dr Hames, said:

‘I will be taking advice directly from the surgeons involved and will not be clearing him as fit, nor will I be delaying any such clearance…’.

Mr Forsyth submitted to the learned magistrate that he suffered from a high level of blood pressure.  He went on to submit that he was no risk of flight.

20                  The learned magistrate decided not to remand Mr Forsyth in custody.  He said, after referring to the quashing of the arrest warrant and the order of the High Court of Justice in England:

‘As has been indicated, Mr Forsyth has been in custody since November 2002.  Hearing dates today have been obtained for the 17^th and 18^th February 2004.  So that if the warrants are valid a determination as to whether Mr Forsyth is an extraditable person under the Extradition Act would not be able to be made until sometime after the 18^th February 2004, though I am aware of what has been said by the High Court of Australia in Cabal that the usual considerations in respect of bail do not apply in extradition matters.

If Mr Forsyth is remanded in custody it will mean that he will have been in custody by the time the matter is determined as to whether he is an extraditable person, not whether he is to be extradited, will be some fifteen months.  That would be the equivalent of a little less than four years imprisonment.  Given that there is some prospect – how great a prospect is not known but some prospect – that the warrants may not be valid taking into account the question of the risk of flight, given Mr Forsyth’s medical condition and there has been evidence before me from time to time in relation to his medical condition, in the circumstances I conclude that it is appropriate to continue bail.  However there would be some additional conditions.’

He then imposed as an additional condition of the bail undertaking that until the matters are completed Mr Forsyth was to reside at Anfield Park, Boyup Brook.  He was to report to the officer in charge of the Boyup Brook Police Station daily.  Otherwise, and subject to the addition of those conditions, the bail set on 22 September 2003 was renewed. 

The Application for Judicial Review

21                  The  United Kingdom filed an application for judicial review of the learned magistrate’s decision on 24 September 2003.  It claimed interlocutory relief revoking Mr Forsyth’s bail.  On 25 September, for reasons separately published, the claim for interlocutory relief was denied.  The substantive application was then set down for hearing on Wednesday, 1 October 2003.  On that date an amended application was filed in Court.  It was characterised as an application under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) relating to the decision made by the learned magistrate on 23 September 2003.  The amended application said:

‘On the grounds stated in the accompanying affidavit the Applicant claims:

1.         Orders in the nature of mandamus against the Second Respondent directing him to exercise properly the power conferred by s15(6) of the Act.

2.         Orders in the nature of certiorari against the Second Respondent quashing his decision to continue bail on 23 September 2003; and

3.         A declaration that the Second Respondent’s decision to continue bail on 23 September 2003 was invalid.’

22                  The affidavit referred to was that of Mr Putt, a principal legal officer in the Perth office of the DPP.  It set out the history to which I have already referred.  He then contended that the learned magistrate erred in law by:

‘36.      Holding that the fact that there was pending legal proceedings in the United Kingdom in relation to the warrant for Forsyth’s arrest, as well as the potential length of time Forsyth had spent in custody by February 2004, constituted “special circumstances” for the purposes of subsection 15(6) of the Extradition Act 1988.

37.       Failing to correctly apply the principles of United Mexican States v Cabal (2001) 183 ALR 645, in that even if special circumstances are proved the Court will ordinarily require bail to (sic) refused if there is a real risk of flight.

38.       By not having regard to the fact that Forsyth’s medical condition only lessens the flight risk for several days after his operation scheduled for 26 September 2003.’

Statutory Framework

23                  It is sufficient for present purposes to set out the relevant parts of s 15 of the Extradition Act which provides:

‘15(1)  A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.

   (2)  The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, 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.

…

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

Whether the Learned Magistrate Erred

24                  Section 15 contemplates proceedings under ss 18 or 19 of the Act.  Section 18 of the Act deals with the case in which the person whose extradition is sought consents to surrender.  Section 19 provides for an administrative hearing in which a magistrate determines whether or not a person is ‘eligible for surrender in relation to the extradition offence or extradition offences for which surrender is sought by the extradition country’.  It is one condition of eligibility for surrender that ‘… the supporting documents in relation to the offence have been produced to the magistrate’ (s 19(2)(a)).  These include ‘… a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence or a duly authorised copy of such a warrant’ (s 19(3)(a)).

25                  The determination process under s 19 does not involve a determination whether a person is an ‘extraditable person’.  That characterisation is a necessary condition of the power to issue a provisional warrant under s 12 of the Act (s 12(1)(b)).  It is a term defined in s 6 of the Act.  One of the elements of that definition is that:

‘… a warrant or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act.’

The learned magistrate therefore erred in so far as he based his decision upon the probability that Mr Forsyth was no longer a ‘extraditable person’.  That was a criterion relevant to the issue of the provisional warrant.  A change in circumstances in relation to the status of the original warrants in the United Kingdom would not affect the validity of the provisional warrant.  It is not suggested that the provisional warrant was not regularly and validly issued. 

26                  His Worship did not identify how it was that a finding that Mr Forsyth was no longer an extraditable person would interact with the provisions of s 19 of the Act.  He did suggest however that ‘Mr Forsyth may no longer be subject to the Act’.  This was not a ground of judicial review explicitly set out in the affidavit in support of the application.  Nor did it appear clearly from the written submissions filed on behalf of the United Kingdom.  However when asked to identify orally the errors of law relied upon, counsel for the United Kingdom ultimately accepted the following formulations:

1.         The learned magistrate erred in holding that the question whether the first respondent was an extraditable person was relevant to the question of his release on bail.

2.         The learned magistrate relied upon an irrelevant consideration, namely the question of the first respondent’s status as an extraditable person, in determining whether there were changed circumstances for the purposes of s 15(3).

3.         The learned magistrate failed to make a finding as to the risk of flight on the part of the first respondent.

4.         If contrary to the preceding ground, the learned magistrate did find no real risk of flight existed, then that decision was unreasonable.

The first two of these grounds were not reflected in those set out in the affidavit in support of the application.  They were, however, indirectly referred to in the written submissions in support of an order in the nature of certiorari.  The third ground was also reflected indirectly in the affidavit grounds. 

27                  As to the second of the grounds relating to s 15(3), counsel for Mr Forsyth made the point that this was the first time that ground had been raised.  He also argued that the question whether there were special circumstances had been conceded before the learned magistrate by counsel for the DPP. In the hearing on 22 September the learned magistrate put to counsel for the DPP that the fact that the person was not potentially an extraditable person would be an exceptional circumstance.  Counsel had replied ‘Yes your Worship’.  This ‘concession’ is of little relevance however as it seems to have been based upon the misconception that Mr Forsyth’s status as ‘ an extraditable person’ was of continuing relevance under the Act.

28                  Despite the difficulty which seems to have attended counsel’s efforts to identify a jurisdictional error on the part of the learned magistrate which would attract the grant of certiorari, I am of the opinion that, as earlier indicated, His Worship did err in treating the question of whether or not Mr Forsyth could be regarded as an extraditable person as relevant to the outcome of the s 19 proceedings and as a special circumstance warranting his release upon bail.  It is an error of law which appears to misconstrue the nature of the function conferred upon the magistrate by s 19 and is an error which informed the decision to grant bail under s 15. 

29                  In this connection there is assistance to be derived from the observations of Brennan CJ, Dawson and McHugh JJ in Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 538 that:

‘… the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney- General as to whether the person is an extraditable person.  The powers conferred by the Act, other than those conferred on a court  by s 21, are administrative in nature.  They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.’

In Singh v United States of America [1997] FCA 612, Sackville J said:

‘It follows from DPP v Kainhofer that it is no part of a magistrate’s function under s 19 of the Extradition Act to determine whether the person said to be eligible for surrender is an “extraditable person”.  The authority and duty of the magistrate to conduct the proceedings are not dependent on the existence of a duly authenticated warrant.  It is the responsibility of other decision-makers in the administrative sequence to be satisfied that a warrant is in force which satisfies the requirements specified in the definition of “extraditable person (Extradition Act, s 6(a)(i))”.’

His Honour was of the view that s 19(2)(a) contemplates that the supporting documents:

‘… may be produced at any time prior to the magistrate determining that the person is eligible for surrender.’

30                  I have considered whether or not the learned magistrate in referring to the question whether Mr Forsyth was an extraditable person was intending to refer to the question of his eligibility for extradition.  In context, I do not think his reasons can be so read.  And the possibility that for one or another foreshadowed reason a person may not be eligible for extradition does not in the ordinary course constitute a special circumstance warranting the grant of bail.

31                  In my opinion therefore an error has been made which justifies the grant of certiorari.  I would add that the learned magistrate’s reasons do not appear adequately to have addressed the risk of flight by Mr Forsyth and the fact that, apart from the temporary impediment of his medical treatment, no other factor affecting risk of flight seems to have changed since the time of the magistrate’s original decision to refuse bail.

Conclusion

32                  For the preceding reasons I propose to make the following orders:

1.         An order in the nature of certiorari that the Second Respondent’s decision of 22 September 2003 to release the First Respondent on bail and his decision of 23 September 2003 to continue to release him upon bail be quashed.

2.         An order in the nature of mandamus directed to the Second Respondent to consider and determine the First Respondent’s application for bail according to law.

3.         The First Respondent is to pay the Applicant’s costs of the application.

4.         There is liberty to the parties to apply by written submission within forty eight hours for any further necessary directions relating to the implementation of these orders.

Associate:

Dated:              7 October 2003