FEDERAL COURT OF AUSTRALIA

Matson (Roger) v Keenan [2016] FCA 1549

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first and third respondents’ costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    There are four stages in extradition proceedings under the Extradition Act 1988 (Cth) (“the Act”). The first stage is commencement (either by the issuing of a Form 5 warrant for arrest under s 12(1) of the Act, or by the issuing of a Form 9 notice of receipt of extradition request under s 16(1) of the Act). The second stage is remand, in that, once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail. The third stage is determination by a magistrate of eligibility for surrender pursuant to s 19 of the Act. The fourth stage is executive determination under s 22 of the Act as to whether the person is to be surrendered: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389.

2    This proceeding is an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the first respondent’s decision to issue a Form 9 notice of receipt under s 16(1) of the Act (“the s 16 decision”) and the second respondent’s decision to issue a Form 5 arrest warrant under s 12(1) of the Act (“the s 12 decision”).

Background

3    On 26 October 2005, a grand jury in the United States of America (“USA”) returned a fifteen-count indictment charging the applicant, Mr Roger Matson, and two others (“the original indictment”) with the following charges and corresponding maximum periods of imprisonment:

    One count of conspiracy to commit mail fraud and wire fraud – 5 years;

    Five counts of mail fraud – 20 years;

    Nine counts of wire fraud – 20 years.

4    On 21 December 2005, another grand jury returned a sixteen-count indictment (“the superseding indictment”). The superseding indictment charged the applicant and the two others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years’ imprisonment.

5    The allegations made by the USA are that between 1997 and 2000, the applicant, his son, Baron Matson, and Gordon Robert Grant created and sent various documents to individuals containing false and fraudulent statements, promises and representations in order to lure the individuals into investing in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program (“the PRO Program”), which would allow investors to “generate a consistent cash income” and “successfully back every runner in every race”. It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would increase their opportunity for return. Under this program the investors’ funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then “vanished along with substantially all of the investors’ money”.

6    A warrant was issued for the applicant’s arrest on 26 October 2005 based on the original indictment (“the original arrest warrant”) and a second warrant was issued on 21 December 2005 based on the superseding indictment (“the second arrest warrant”). The second warrant contained a scrivener’s error and was re-issued on 14 November 2011 (“the re-issued arrest warrant”).

7    On 21 January 2015, the USA requested the extradition of the applicant from Australia. An affidavit was sworn on 26 February 2014 in support of the extradition request by Jay Trezevant, an Assistant United States Attorney (“the Trezevant affidavit”). A supplementary affidavit was sworn by Mr Trezevant on 12 May 2014 (“the supplementary Trezevant affidavit”).

8    On 16 September 2015, the USA applied for an extradition arrest warrant, relying on an affidavit sworn by Kirsty Jane Hedley on 16 September 2015 (“the Hedley affidavit”).

9    On 17 September 2015, the second respondent, Magistrate Morrison of the Magistrates Court of the Australian Capital Territory, determined that the applicant was an extraditable person for the purposes of the Act and issued a Form 5 arrest warrant under s 12(1) of the Act. On 18 August 2015, the first respondent, the Minister for Justice, issued a Form 9 notice under s 16(1) of the Act. The applicant seeks review of each of these decisions.

10    It may be noted that the USA has also requested the extradition of Baron Matson, who has separate proceedings on foot challenging decisions concerning his extradition.

THE APPLICATION FOR REVIEW

11    The applicant was represented at the hearing by counsel appearing on a pro bono basis. The applicant’s counsel made thorough written and oral submissions.

12    The application for review challenges the s 16 decision on the following grounds:

Grounds

1.    That the Form 9 Sec 16 Notice…be set aside on the grounds that the First Respondent has not taken relevant considerations into account.

Particulars

In relation to Ground 1, the First Respondent has not taken into account the following relevant considerations:

(i)    The alleged offence committed by the Applicant is statute barred under United States law and is consequently in breach of ARTICLE VII(b) of the Treaty on Extradition Between Australia and the United States of America;

(ii)    The Third Respondent added another Count from the Original Indictment dated 26 October 2005, (“The Original Indictment”), to the Superseding Indictment dated 21 December 2005 (“The Superseding Indictment”);

(iii)    Further to (i) and (ii) above, the Arrest Warrant that was issued and dated 21 December 2005 (“The First Arrest Warrant”), was discontinued because of a “scrivener’s error”, and again another Arrest Warrant was issued on 14 November 2011 (“The Second Arrest Warrant”).

(iv)    That the Applicant’s matter in the United States District Court, Middle District of Florida Division, Case No. 8:05-Cr-458-T-27TGW has not been prosecuted diligently by the Third Respondent and the Third Respondent has been dilatory in the extreme, by not prosecuting this matter against the Applicant. The Original Indictment was returned by the Grand Jury on 26 October 2005 and the Applicant was arrested 10 years to the day on 26 October 2015, and the Applicant’s whereabouts were always known to the relevant authorities.

2.    That the Form 9 be set aside on the grounds that it is invalid, because of acts of “executive lawlessness”, by both the First Respondent and the Third Respondent.

Particulars

In relation to Ground 2, for all of the reasons outlined above in the Particulars in relation to Ground 1, the First Respondent and the Third Respondent have committed acts of “executive lawlessness”.

3.    That the Form 9 be set aside on the grounds that the First Respondent has asked the wrong question.

Particular

In relation to Ground 3, the First Respondent has not asked the correct question or questions in relation to the documentation outlined above in the Particulars in relation to Ground 1 and has been derelict in its duty to the Applicant, who is an Australian citizen.

…

5.    That the Form 9 be set aside on the grounds that the decision by the First Respondent was unreasonable.

Particular

In relation to Ground 5, for all of the reasons outlined above in Particulars in relation to Ground 1, the First Respondent has made a decision so unreasonable that no reasonable decision maker would have made.

6.    That the Form 9 be set aside on the grounds that the decision by the First Respondent was illogical and/or irrational.

Particular

In relation to Ground 6, for all of the reasons outlined above in Particulars in relation to Ground 1, the First Respondent has made a decision that is not rational or logical and is a decision that no logical or rational decision maker would have made.

13    The grounds relied on to challenge the s 12 decision (Grounds 7-11) are almost identical to those relied on to challenge the s 16 decision, making it unnecessary to set them out.

14    The applicant’s grounds are somewhat repetitive since each ground relies upon the particulars of Ground 1. It is convenient to deal with some of the grounds together, as set out below.

15    There are broadly three issues in the application for review:

(a)    Whether the decision-makers erred by failing to take into account relevant considerations, or asking the wrong questions, with respect to the ss 12 and 16 decisions (Grounds 1, 3, 7 and 9), in particular:

(i)    whether the charges are statute-barred;

(ii)    that an additional charge was added to the superseding indictment;

(iii)    that the second arrest warrant dated 21 December 2005, based on the superseding indictment, was re-issued on 14 November 2011 due to a scrivener’s error;

(iv)    the allegation that the charges were not diligently prosecuted by the USA; and

(v)    the applicant’s poor health.

(b)    Whether the ss 12 and 16 decisions are invalidated by acts of “executive lawlessness” (Grounds 2 and 8); and

(c)    Whether the ss 12 and 16 decisions are unreasonable, illogical and/or irrational (Grounds 5, 6, 10 and 11).

LEGISLATION

16    The USA is an “extradition country” under ss 5 and 11(1)(a) of the Act and reg 3 of the Extradition (United States of America) Regulations (Cth) (“the Regulations”). Under s 11(1)(b) of the Act and reg 4 of the Regulations, the Act applies to the USA subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty on Extradition between Australian and the USA (“the Treaty”), as amended by the Protocol amending the Treaty on Extradition between Australia and the USA (“the Protocol”). The Treaty and Protocol are set out in Schs 1 and 2 of the Regulations.

17    An “extradition offence”, as defined by s 5 of the Act modified by Art II(1) of the Treaty, amended by Art 1 of the Protocol, is an offence which carries a penalty of imprisonment for a period of more than one year, or a more severe penalty.

18    Section 12(1) of the Act provides:

Extradition arrest warrants

(1)    Where:

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

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

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

19    Section 16 of the Act provides:

Notice by Attorney-General

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

Person must be extraditable person in relation to extradition country

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

…

20    Sections 12 and 16 of the Act each involve consideration of whether the applicant is an “extraditable person” for the purposes of the Act. That expression is defined in s 6 of the Act as follows:

Meaning of an extraditable person

Where:

(a)    Either:

(i)    a warrant is 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; or

…

(b)    the offences or any of the offences is an extradition offence in relation to the country; and

(c)    the person is believed to be outside the country;

the person is, for the purposes of this Act, an extraditable person in relation to the country.

CONSIDERATION

Grounds 1, 3, 7 and 9: relevant considerations and wrong questions

21    The respondent submits that the matters particularised by the applicant in Grounds 1 and 7 are not relevant at the first stage of the extradition proceedings, and the decision-makers were not required by the Act to consider any of those matters. Similarly, in response to Grounds 3 and 9, the respondent submits that the decision-makers were under no duty to inquire into the matters raised by the applicant.

22    Under s 16(1) of the Act, after receiving an extradition request, the Minister may, in his or her discretion, issue a Form 9 notice. Section 16(2) of the Act provides that the Minister must not issue the notice unless he or she is of the opinion that the person is an extraditable person in relation to the extradition country. The determination of whether the applicant is an extraditable person, as defined in s 6 of the Act, involves three considerations:

(a)    whether an arrest warrant is in force;

(b)    whether the warrant relates to extradition offences; and

(c)    whether the applicant is outside of the extradition country.

23    Only the first consideration is in issue in this proceeding. It is not disputed that the offences the subject of the arrest warrant are extradition offences for the purposes of the Act, or that the applicant is outside of the USA, and resides in Australia.

24    The Minister’s discretion at the first stage of the extradition proceedings is limited. In Foster v Attorney General (Cth) (1997) 97 A Crim R 560 at 575, Cooper J stated:

Ordinarily matters which would go to the exercise of the discretion under s 22(3)(f) are not relevant or properly reviewable at the s16 stage of the process. Such an approach is, in my view, consistent with the reasoning in Harris v A-G (Cth) at 412-413.

The discretion which the Attorney-General exercises under s 16 is limited to the question of whether the extradition process should proceed. To the extent that there is any duty to make inquiry, that duty is limited to the three matters in respect of which the Attorney-General must hold an opinion before giving the notice. There is no duty to make inquiries as to matters which may go to a residual general discretion not to issue the notice…

25    In light of the limited scope of the discretion, the applicant’s poor health and allegations of dilatory prosecution are irrelevant at the s 16 stage of the extradition process, although they may become relevant at the fourth stage.

26    The only issue in dispute as to whether the applicant is an extraditable person is whether a warrant is in force for the arrest of the applicant. The Minister’s decision was informed by the Trezevant affidavits. The supplementary Trezevant affidavit at para 5 states that:

The warrant dated December 21, 2005, which is Exhibit 3 to my affidavit, contained a scrivener’s error, which did not affect the validity of the warrant. Nevertheless, on November 14, 2011, a new arrest warrant for ROGER MATSON/BRONSTEIN was issued…This warrant remains valid for the arrest of ROGER MATSON/BRONSTEIN.

27    The applicant argues that the Minister should have found that the arrest warrant was not valid. The applicant submits that the arrest warrant was invalid under USA law because it is statute-barred, the superseding indictment added a charge and the second warrant was re-issued because of a scrivener’s error.

28    The Act creates a tightly structured scheme: Snedden v Minister for Justice [2014] FCAFC 156 at [100]. The structure of the scheme requires that ss 12, 16 and 19 of the Act should be construed consistently.

29    Under s 19 of the Act a magistrate is not required to make a substantive determination about the validity of documents under foreign law as the magistrate is not an expert in foreign law: Kommatas v Helenic Republic [2014] FCA 1224 at [13], [18]; Bennett v United Kingdom [2000] FCA 916 at [23], [25]; Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 300. Similarly, in Williams v Minister for Justice and Customs (Cth) (2007) 157 FCR 286 at [49], the Full Court held that “Neither the Attorney-General (or the responsible Minister), nor an Australian magistrate is taken to be expert in foreign law”. For the purposes of s 16, the Minister is not required to determine substantive arguments that challenge the validity of the arrest warrant according to USA law.

30    Based on the information provided in the Trezevant affidavits, the Minister properly took the warrant into account. The Magistrate was not required to determine its validity under USA law.

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

32    The only warrant referred to in the Hedley affidavit was the re-issued warrant dated 14 November 2011. The Hedley affidavit states at para 8 that “on 14 November 2011, a warrant was issued by Sheryl L Loesch, Clerk of the United States District Court for the Middle District of Florida, for the arrest of Roger Gregory Matson”. A copy of the warrant is Exhibit 3 to the affidavit. The Hedley affidavit states that the re-issued arrest warrant “remains in force”. Based on this information the Magistrate was satisfied that an arrest warrant was in force.

33    Consistently with the position under ss 16 and 19, the Magistrate was not required to make any substantive determination about the validity of an arrest warrant under USA law for the purposes of s 12 of the Act.

34    Whether or not the charges are statute-barred or what effect, if any, the addition of the sixteenth charge to the superseding indictment or the scrivener’s errors have on the validity of the indictment is not relevant to the consideration of the arrest warrant by the Magistrate.

35    In summary, the Minister and Magistrate did not err by failing to take into account considerations or make the inquiries outlined in Grounds 1, 3, 7 and 9.

Grounds 2 and 8: executive lawlessness

36    The applicant defines “executive lawlessness” as a species of abuse of process. The allegation of abuse of process is based on delay in prosecution. As discussed above, to the extent that counsel for the applicant argues that delay and dilatory prosecution should have been taken into account as a relevant consideration by the respective decision-makers, this submission is rejected.

37    Grounds 2 and 8 may also be understood as arguing that the ss 12 and 16 decisions should not have been made as the extradition proceedings themselves are invalid as an abuse of process.

38    The respondent submits that there is no evidence supporting the applicant’s allegations of executive lawlessness. Further, the respondent submits that the extradition process may not be stayed as an abuse of process.

39    In Forrest v Kelly (1992) 34 FCR 74, the Full Court held at 81:

The entitlement of a court to protect itself from [an abuse of process] is an entirely different matter from the entitlement of a magistrate to refuse a genuine [extradition] application because of delay in the foreign country where the crime is said to have been committed.

…It follows from what we have said that we do not think that a magistrate has power to stay extradition proceedings because of this type of delay…[However] the Attorney-General may decline extradition [under s 22 of the Act] for any reason which he or she thinks appropriate. Those reasons include that the request for extradition has been unduly delayed.

See also Snedden v Republic of Croatia [2009] FCA 30 (“Snedden v Republic of Croatia”) at [92]-[98], Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at [130]-[132].

40    Although the judgment in Forrest v Kelly was concerned with s 19 of the Act, the force of the reasoning applies equally to the limited power of a magistrate under s 12.

41    Further, to the extent that the applicant’s submissions rely on Jago v District Court of New South Wales (1989) 168 CLR 23 to assert a right to be protected from unfairness resulting from undue delay, in Snedden v Republic of Croatia, Cowdroy J held at [18]:

…the applicant’s reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld.

42    Therefore, the Magistrate and the Minister respectively made no error in making the ss 12 and 16 decisions without considering whether there was an abuse of process.

Grounds 5, 6, 10 and 11: Unreasonable, illogical and irrational

43    Grounds 5, 6, 10 and 11 adopt the particulars set out in Ground 1. Further, in relation to these grounds, the applicant submits that special circumstances apply, relying on the medical report of Dr Renaut. The applicant submits that although this report was not available at the time the ss 12 and 16 decisions were made, the special circumstances (i.e. the applicant’s age and health issues) were known, or should have been known, by the respective decision-makers.

44    The respondent submits that Grounds 5, 6, 10 and 11 cannot succeed because the applicant’s submissions are based on evidence which was not before the decision-makers at first instance, and, further, even if such evidence was before the decision-makers, the applicant’s health is not relevant to whether he is an extraditable person as defined by s 6 of the Act.

45    As discussed above, the relevant question under ss 12 and 16 is whether the applicant is an extraditable person. The discretion under s 16 is a limited one, while the magistrate has no discretion under s 12. The applicant’s health and any special circumstances are not relevant at this stage of the extradition process.

46    There is no further particularisation concerning how the ss 12 and 16 decisions are said to be unreasonable, illogical and irrational, and there is nothing on the face of those decisions that would suggest such error.

47    For the reasons I have given, the application for review under s 39B of the Judiciary Act must be dismissed.

48    My reasons for dismissing the applicant’s interlocutory applications for a stay of these proceedings and for bail are set out in QUD 534 of 2016.

Associate:    

Dated:    22 December 2016