Clear v Holyoak [1991] QSCFC 55 [1993] 1 Qd R 376

1 /b^ . 10 IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S. No. 1056 of 1989 BEFORE: The Chief Justice (Mr. Justice Macrossan) Mr. Justice McPherson SPJ Mr. Justice Derrington BRISBANE, 6 JUNE 1991 f C«) t " t % 10 •(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) 20 30 40 50 BETWEEN : PATRICK PHILLIP CLEAR (Informant) -and- VICTOR PERCIVAL JOHN HOLYOAK (Defendant) Appellant Respondent JUDGMENT THE CHIEF JUSTICE: In my opinion this appeal should be dismissed with costs for the reasons which have been prepared by Mr. Justice Derrington. I agree with those reasons . MR. JUSTICE DERRINGTON: I agree with the order proposed by the Chief Justice. I publish my reasons. THE CHIEF JUSTICE: I am authorised by the Senior Puisne Judge to say that he too agrees with that order and with those reasons. The orders will then be as I have indicated . 20 30 40 50 — Govt. Printer. Qld. l [1991] QSCFC 55 -- 1 of 12 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: O.S. No. 1056 of 1989 PATRICK PHILLIP CLEAR ( Informant) Appellant AND: VICTOR PERCIVAL JOHN HOLYOAK (Respondent) Respondent CHIEF JUSTICE MCPHERSON SPJ DERRINGTON J Reasons for Judgment delivered by Derrington J on 6th June, 1991. The Chief Justice and McPherson SPJ agreeing with those reasons and with the orders proposed . "APPEAL DISMISSED WITH COSTS. n -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S. No. 1056 of 1989 Before the Full Court The Chief Justice Mr Justice McPherson S.P.J. Mr Justice Derrington BETWEEN : PATRICK PHILLIP CLEAR ( Informant) Appellant AND : VICTOR PERCIVAL JOHN HOLYOAK (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 6th day of June, 1991. CATCHWORDS : Extradition - Whether appropriate for judge to allow extradition but on undertaking to the court by appropriate New South Wales Government authority that public defence or equivalent funding will be made available to respondent at committal and trial. Counsel: Mr. J. Douglas Q.C. and Mr. O'Shea for appellant Mr. Godsell for respondent Solicitors: K.M. O'Shea for appellant Neil Wilkinson for respondent Hearing dates: 15 and 16 April, 1991. -- 3 of 12 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN : O.S. No. 1056 of 1989 AND: PATRICK PHILLIP CLEAR ( Informant) Appellant VICTOR PERCIVAL JOHN HOLYOAK (Defendant) Respondent JUDGMENT - DERRINGTON J. Delivered the 6th day of June, 1991. Upon a review under s. 19 of the Service and Execution of Process Act 1901 of an order of a magistrate dismissing an application for extradition, it was ordered that the respondent be extradited to New South Wales but subject to certain conditions. The applicant for the extradition now appeals but only against the imposition of one of those conditions, that is, that an undertaking be given to the court by the appropriate authority of the New South Wales government that public defence or equivalent funding will be available to the respondent for the purposes of his committal proceedings and trials. The extradition relates to a significant number of charges of sexual abuse of eight or nine children at a children's home in New South Wales between the years 1964 and 1970. The allegations came to light in 1988 through a television current affairs programme although there is some evidence that some or all of the complainants discussed the matter among themselves on one occasion in the mid-70's. The sensationalist nature of the -- 4 of 12 -- 2 television programme adds to the difficulties of the respondent in obtaining a fair trial. He and his wife had had supervisory positions in the children's home but they had long since retired to Queensland, where they have lived openly under their own names which were registered on the electoral rolls. He is now seventy- two years of age, living in straightened circumstances and not in good health. His wife is in very poor health and depends upon him for a large part of her personal support and care. They have no substantial assets and no income other than the age pension. A son who lives nearby provides some physical support. The difficulty relating to the condition imposed by the order is that in New South Wales legal aid is not provided to anyone for committal proceedings except in special circumstances, and the Legal Aid Commission of New South Wales has decided that the respondent would not qualify for aid for his committal proceedings. There appears to be no difficulty in respect of any trials which may follow. It is this decision that led to the condition which was imposed upon extradition. Learned counsel for the appellant first argued that the learned reviewing judge had come to the conclusion that it was not unjust or oppressive to extradite the respondent but then imposed this condition; and he was not entitled to do this. It is true that s. 18(6) (c) and (f) of the Act permits the imposition of such a condition only if it is first found that it would be unjust or oppressive to order the extradition. According to those provisions, upon such a finding, the extraditing judicial officer, be it a Magistrate or reviewing judge, may order the discharge of the person, order that the -- 5 of 12 -- 3 person be returned after the expiration of a period specified in the order with possible bail in the interim, or make such other order as the judicial officer thinks just. He does so, not as a court but in the exercise of a non-judicial function: Re : Lanetti (1985) 6 A. Crim. R. 126. It is under the lastmentioned part that the condition-making power is invested, but the point is that a finding of "unjust or oppressive" is necessary before such a power is invested in the judicial officer. Manifestly the section does not entertain the prospect that an order for extradition would be made when it would still be unjust or oppressive to do so when choices other than the simple discharge of the person are provided. They are designed to enable the court to tailor the order by the use of suitable conditions so as to ensure that the extradition would then not be unjust or oppressive . That is precisely what the learned judge below undertook when making his order. Although he did not spell out in express terms that it would have been unjust or oppressive to order the extradition without this condition, it is perfectly clear that he was of that view and that he concluded that this was cured by the imposition of the condition. This answers the appellant's first complaint. Alternatively it was argued that it was wrong to say that extradition would have been unjust or oppressive without this condition for if it had not been imposed the respondent would have found himself in precisely the same position as any citizen of New South Wales and because of this the system of legal assistance there cannot be said, on the evidence, to operate -- 6 of 12 -- 4 unjustly or oppressively to the respondent. Moreover, it is argued, the imposition of such a condition is to provide special treatment for a Queensland resident, providing him with an advantage over residents of New South Wales; and such a course, particularly associated with the requirement of an undertaking that the law of another State will not be applied, is highly undesirable: Armah v. Government of Ghana [1968] A.C. 192 per Lord Reid at pp. 235-236, Lord Pearce at p. 256 and Lord Upjohn at pp. 262-263. It goes beyond the extraditing State's legitimate interests in the criminal process of the applicant State: cf. Re Henderson : Henderson v. Secretary of State for Home Affairs [1950] 1 All.E.R. 283 per Tucker L.J. at p. 287; and it wrongly confers fresh rights upon the respondent. Upon this point generally, learned counsel for the appellant correctly argued that the determination as to whether an extradition order would in the circumstances be unjust or oppressive is a determination of fact or at least of mixed fact and law, but it is not an exercise of any discretion: R. v. Governor of Pentonville Prison; exparte Narang [19781 A.C. 247 at pp. 272-274, 279, 283, 284, 288-289 and 293; Perry v. Lean (1985) 39 S.A.S.R. 515, 537-538. A discretion may be exercised as to the conditions to be imposed but only after it is determined that the extradition would be unjust or oppressive. However this argument referring to the justice or otherwise of the law of New South Wales and of the undesirability in the imposition of a condition which might not produce the same result as that law has really approached the matter from the wrong direction. The first question is simply whether it would be -- 7 of 12 -- 5 unjust or oppressive to extradite the respondent in the circumstances that exist. While it is certainly true that a person has no right to the provision of legal aid to provide for representation at a trial: Mclnnes v. The Queen (1979) 143 C.L.R. 575, 579, 581; R. v. Maher [1987] 1 Qd.R. 171 at pp. 178- ISO, this is not a question of a right. It is simply whether the absence of representation at the committal proceedings would produce the result of placing the respondent in such a position that it would be unjust or oppressive to do so. If it were so, then it is not to the point whether citizens of that State might or might not be subjected to the same injustice or oppression. Indeed, the law of the State seeking extradition is relevant only for the purpose of knowing what treatment the subject of the order might expect; and it does not make it less unjust or oppressive that the general citizens of that State might be subjected to the same treatment. This is a state of affairs that is not infrequently encountered, and it may militate against an order: cf. R. v. Henderson [1950] 1 All E.R. 283; Binge v. Bennett (1988) 13 N.S.W.L.R. 578 where, for example it was found on the evidence that the accused could not have a fair trial in Queensland, and so extradition was correctly refused. Because of comity between the States it is accepted as a general proposition that injustice or oppression will be remedied by the State to which the person is to be returned: Walker v. Duncan (1975) 1 N.S.W.L.R. 106; and, the onus being upon that person to show injustice or oppression, a stringent test is adopted where the system of another State is questioned: Ex parte Klumper (1966) 10 F.L.R. 167, 173; Bates v. McDonald (1985) 2 N.S.W.L.R. -- 8 of 12 -- 6 89; Perry v. Lean (1985) 39 S.A.S.R. 515, 519; 85 F.L.R. 29, 33. But where it is seen that the product of the State's system will in fact lead to an unjust or oppressive result to the person who is returned to it, then the refinements of these considerations must give way to the clear prescription of the statute. In those circumstances, expectation as to what the State's system should provide is an irrelevant distraction. Its value is only as a reminder that there are many calls upon the public purse for legal aid so that in weighing the question of injustice or oppressiveness the court must take into account any countervailing factors of this nature in order to avoid unjustified liberality. At this stage of the discussion it is convenient to reflect upon what is meant by "unjust or oppressive". In Kakius v. Republic of Cyprus [1978] 1 W.L.R. 779 at p. 782 Lord Diplock said:- " 'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping and between them they would cover all cases where to return him would not be fair." Within that concept the unavailability of legal representation for an accused person at committal proceedings may be unjust or oppressive to him in fact notwithstanding the absence of any right to legal aid for such representation if his resulting lack of representation might well prejudice his chance of a fair trial in the course of time. Much of course depends upon the circumstances of each particular case, but the importance of committal proceedings in some cases should not be underestimated. -- 9 of 12 -- 7 In the judgment of the court in The Queen v. Murphy (1985) 158 C.L.R. 596 at p. 616 it was said:- "Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connection with an actual exercise of judicial power: see Amman v. Weoener (1972) 129 C.L.R. at p. 437; Barton v. The Queen (1980) 147 C.L.R. 75 at p. 99." It is unnecessary to elaborate by reference to the authorities cited in that passage. It is sufficient to remark in summary that they confirm that committal proceedings may in some circumstances be regarded as a significant step in the criminal process. That is the position here. The charges are numerous and the circumstances of the whole will be complex, with serious questions to be investigated, inter alia, relating to interchange of information between the various complainants and between them and the media reporters. It may be very desirable that this be investigated freely in the absence of the jury so that prejudice may be avoided and the appropriate place for this is in committal proceedings. Further in addition to their number and complexity there is the age of the charges, which will present its own problems which may seriously interfere with the respondent's capacity to prepare his defence: cf. Kakis (supra); R. v . Governor of Pentonville Prison. Ex parte Naranq (supra). Being deprived by the passage of time of any reasonable opportunity of relying satisfactorily upon his memory, he will probably be required to investigate relevant matters in such a way as to inform himself of features giving rise to a suitable enquiry. -- 10 of 12 -- 8 Even the identification of relevant matters might well be difficult without professional assistance, and it is a matter of experience in the criminal jurisdiction that it is often too late to try to do so at the trial. In addition, there will be questions to be posited relating to the subject of the delay. It may well be necessary to elicit information and explanations which must be investigated before trial. Finally it may become necessary to apply to be discharged on the committal proceedings or to use the material disclosed in them as the basis of an application to the court on the presentation of the indictment to have it dismissed. In his present circumstances the respondent has no prospect whatever of acquitting himself in the discharge of a reasonable investigation of the matter on committal proceedings. He is unable to pay for representation and he is incapable of properly representing himself. Apart from his obvious lack of expertise and experience, his age and poor health and the distraction of his wife's poor health will further impede his efforts. He is unlikely to have the wit or the talent to derive any reasonable benefit from the committal proceedings. Apart from providing him with the evidence which the prosecution chooses to lead there, they will be of little use to him if he is unrepresented. In all of these circumstances, it is not difficult to understand how the magistrate in the first instance and the learned judge below on review of the magistrate's decision came to the view that it would be unjust and oppressive to extradite the respondent if that were to be his experience. They were -- 11 of 12 -- 9 clearly right, and side issues as to the welfare of the citizens of New South Wales cannot diminish it. That being so, the question arises as to whether the extradition order should have been made at all, taking into account the undesirability of imposing conditions or accepting undertakings from foreign States. More particularly, as it has been noticed, it is undesirable for the extraditing court to rely upon an undertaking of the applicant State to depart from the same application of its laws which apply to its citizens in general. However, as the same authority shows, the undesirability of this course does not extend to the mere exercise of an executive act or restraint: Armah (supra) at p. 236. See also Perry v. Lean (supra) at pp. 523, 531. In those circumstances it is safe to allow the order to remain as it is in order to afford the appellant the choice of having the benefit of the extradition order provided that this element of injustice or oppression to the respondent is avoided. The appeal should be dismissed with costs. -- 12 of 12 --