FEDERAL COURT OF AUSTRALIA

United Kingdom v Forsyth (No 3) [2003] FCA 1097

EXTRADITION – judicial review – bail order – jurisdictional error – quashing of bail order – previous remand in custody in effect – implementation orders

UNITED KINGDOM v CHARLES ALISTAIR FORSYTH AND ANOTHER

W203 OF 2003

FRENCH J

10 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         It is hereby declared that the order of the learned stipendiary magistrate of 22 August 2003 under s 15(2) of the Extradition Act 1988 (Cth) whereby he remanded the first respondent in custody, remains in effect.

2.         The first respondent is to surrender himself, no later than 4pm on 10 October 2003, into his former custody in accordance with the written direction of the Commonwealth Director of Public Prosecutions as to the place and manner of that surrender.

3.         In the event that the first respondent fails to comply with the preceding order he may be taken into custody pursuant to the learned magistrate’s order of 22 August 2003 provided that if the first respondent is in hospital at the time arrangements may be made for him to be taken into custody at, and to remain in, the hospital, until fit to be removed to a remand prison.

4.         A copy of this order is to be served on the first respondent as soon as practicable.

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

SUPPLEMENTARY REASONS FOR JUDGMENT

ON IMPLEMENTATION OF ORDERS

1                     On 22 September 2003, His Worship Mr R Black SM made an order releasing the first respondent on bail pending the determination of whether he was eligible for extradition under the provisions of the Extradition Act 1988 (Cth).  The order was renewed with varied conditions on 23 September.

2                     The United Kingdom sought judicial review of the learned magistrate’s decision.  On 7 October 2003, for reasons then published, I made orders in the following terms:

‘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.’

3                     Subsequently, the United Kingdom has submitted that there is uncertainty about whether the first respondent should be remanded in custody as a result of the orders made on 7 October.  In the meantime the matter has been relisted before the learned stipendiary magistrate on 13 October 2003.

4                     The effect of the orders made on 7 October is to quash the decisions releasing Mr Forsyth on bail.  It would therefore have sufficed, in my opinion, for an application to have been made for a warrant to issue for the arrest of Mr Forsyth in the event that he did not surrender himself into custody. 

5                     Mr Forsyth has also made a submission to which I have had regard.  His submissions may be summarised as follows:

1.         It would be unjust to remand him in custody before he has had an opportunity to put his arguments for release on bail to His Worship Mr Black SM on 13 October.

2.         If he is remanded in custody his preparation for the hearing on 13 October will be prejudiced.

3.         It would be dangerous to his health to be remanded in custody.  In this respect it may be noted that Mr Forsyth was discharged from the Royal Perth Hospital on 8 October with a relatively low and safe blood pressure.  He maintains that his blood pressure rose again thereafter and that the Hakea Remand Prison cannot offer the satisfactory and expeditious medical attention he requires at a time when he remains in danger of heart attack or stroke by reason of his hypertension. Numerous medical reports were attached to the submission.

4.         The order made by His Worship Mr Black on 22 August may have been invalid because there was no valid United Kingdom warrant in existence at the time it was made.

5.         In the event that he were found guilty in the United Kingdom of the offences charged he would be unlikely to receive a term of more than two years imprisonment.

In my opinion, none of these arguments discloses a ground upon which the Court should decline to give effect to its orders quashing the learned magistrate’s bail orders of 22 and 23 September.

6                     In respect of Mr Forsyth’s ongoing medical condition a letter from Dr Beilin of 7 October stated:

‘His medical condition is such that it should not place any restrictions on his movements or activities once he is well enough to leave hospital.’

Mr Forsyth was discharged from Royal Perth Hospital on 8 October.  This morning however Mr Forsyth’s father sent a fax to the Court advising that his son was readmitted to Royal Perth Hospital last night.  A referral letter from Dr Pauline de Boer of the Dalkeith Medical Centre was attached.  The referral letter, which did not appear to be fully reproduced in the fax, indicated that he had been measured after his discharge with a blood pressure of 235/150.  Dr de Boer contacted Dr Beilin who recommended that Mr Forsyth be readmitted.  In my opinion arrangements may be made such that he can surrender himself into custody or be taken into custody while at the hospital and remain at the hospital until he is fit to be removed to a remand prison.

7                     The argument as to the lawfulness of his custody during the period that the United Kingdom warrant was not in force and as to the validity of the remand order made on 22 August by the learned magistrate is not accepted.  Mr Forsyth’s arrest, subsequent custody and the remand order made on 22 August flowed from a provisional warrant, the validity of which has not been impugned, and from the provisions of the Extradition Act relevant to proceedings following such arrest.

8                     Having regard to the findings made about the validity of the learned magistrate’s bail order and the orders made in my judgment of 7 October, there is no injustice in requiring that Mr Forsyth be taken into custody pending further consideration of his application for bail by the learned magistrate.  So far as his ability to prepare for the hearing of 13 October is concerned, he would appear to be no worse off in that respect, by reason of being remanded in custody, than any other person in custody who wishes to apply for bail.

9                     To put beyond doubt the requirement that he be taken into custody, I will make a further declaration order under s 23 of the Federal Court of Australia Act 1976 (Cth) in the following terms:

.           It is hereby declared that the order of the learned stipendiary magistrate of 22 August 2003 under s 15(2) of the Extradition Act 1988 (Cth) whereby he remanded the first respondent in custody, remains in effect.

10                  This is the form of order suggested by counsel for the Director of Public Prosecutions.  Mr Forsyth should therefore surrender himself into his former custody.  The precise manner and location of such surrender can be arranged with the office of the Director of Public Prosecutions (DPP) and otherwise subject to the written direction of the DPP.  In order to give practical effect to the declaration I will make the following additional orders:

.           The first respondent is to surrender himself, no later than 4pm on 10 October 2003, into his former custody in accordance with the written direction of the Commonwealth Director of Public Prosecutions as to the place and manner of that surrender.

.           In the event that the first respondent fails to comply with the preceding order he may be taken into custody pursuant to the learned magistrate’s order of 22 August 2003 provided that if the first respondent is in hospital at the time arrangements may be made for him to be taken into custody at, and to remain in, the hospital, until fit to be removed to a remand prison.

.           A copy of this order is to be served on the first respondent as soon as practicable.

11                  I would add, notwithstanding Mr Forsyth’s submissions as to costs, that the costs should follow the event in this case and that my order in that respect stands.

Associate:

Dated:              10 October 2003