Clear, Re v Holyoak [1990] QSC 84

(_') 10 l 20 I 30 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE DOWSETT BRISBANE, 30 MARCH 1990 o.s. No. 1056 of 1989 R-EVISED COPIES ,ISSUED Court Reporting Bure;:iu ~ Oat:, {f: / <f ,!- .fo (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.) IN THE MATTER of "The Commonwealth Service and Execution of Process Act 1901 (Commonwealth) as amended" -and- IN THE MATTER OF PATRICK PHILLIP CLEAR -and- VICTOR PERCIVAL JOHN HOLYOAK JUDGMENT Appellant (Informant) Respondent (Defendant) HIS HONOUR: I have previously said something about the nature of these proceedings in written reasons which I have published. It will, however, be necessary for me, to some extent, to re-canvass the facts of the case. I intend to do this in a fairly broad way, because I do not think that much ~\ , L 40 turns upon precise questions of fact so much as upon general I issues of fact. The respondent has been accused of a large number of offences against children who were in his care between the years 1964 and 1970 at a children's home in New South Wales. so These allegations were never made publicly until some time 60 in 1988 when they were the subject of a television current affairs programme, although it is asserted that some or all of the complainants discussed the matter amongst themselves on one occasion in the mid-seventies. Govt. Printer, Old. 1 10 20 30 40 50 60 -- 1 of 22 -- 10 20 The respondent is now 71 yea:ts_of age,, arid I accept that, he is l:i. ving 'in straitened circumsta~ces ,: and that he ,'.i's · not in good health~ ' His wife Ii ves w.:i. th ' him. . ~•7· ~ -··, •• ·.·. She is in very poor "' health and · depends upon hii:n for a large· part of her . personal support . and care·: The ·respondent and his wife have, at all material · times, electoral rolls. lived . openly . and . have . been on the relevant They came to Queensland some years ago and have lived openly'under their own names. It is clear, I thirik, that nothing in their conduct has indicated any attempt on the part of either of them to hide from their past. They .have no substantial assets and no - income other than the old age 10 0 20 pension. To· some extent they are supported in a physical, ir _ 0 · not a· monetary sense, by one ·of their sons, - as they live in close prox~mity to him. · · · The wife of the· respondent was closely ass·ociated with· --1 · 30 . I -him .:i.n-the supervision of the children's home to which I have 30 40 50 60 referrk'd, and it may be assumed that she could _be expected to ·be called ·as part of'the defence case in any subsequent trial. Th:Eire is a suggestion made by the respondent that at the time in question; he ·was in· fact impotent 8$ a result of ined:ical: condition, using the· word lfirripotent" to indicate inability to sustain an erection. As some of the offences charged' are unlawful carnal knowledge, this may wel_l be of some relevance at the trial. The medical practitioner who treated the respondent at the. time is almost .cer,tainly .. now ... _ dead. It -.i·s reas6~able to infer that the delay between the a an alleged commission· of these offences and thes_e proceedings· - will cause great difficulties to both sides. in any. subsequent trial. It is reasonable to suspect that the complainants.will have vague arid imprecise ·?,recollections., about part_icular_ Govt. Printer, Old. 2 0 O·40 50 60 -- 2 of 22 -- [i. ,I III jl .r I c/II 11 I i,I ~ ~- 10 incidents. It is also reasonable to suspect that some or all of the comP,lainants_will have been guilty.of reconstruction and that _they will have, in their discuss1ons amongst themselves, improved and/or varied their accounts of. what happened. It seems that there may have been an investigation of the home as a result of possibly similar . complaints at a time roughly contemporaneous with these allegations. It is likely that the investigator . and his report will be no longer available. There has also been a substantial and unjustified delay.on 20 1 the part of the applicant in bringing this application for 30 40 50 60 review from the decision of the stipendiary magistrate. Something .like nine months elapsed . between the magistrate's decision and the application for review.. This appears tq be attributed only to some difficulties -in communication between- the Crown Solicitor here, who has been. acting . for the applicant, the applicant in New South Wales, and perhaps al.so counsel here in Brisbane. No doubt there are always delays .. in taking decisions in Government agencies, but that such. delay should have 'extended for a period of nine months is inexcusable and scandalous . This is a circumstance which must be viewed with all the other factors in considering this review .. Certain other factual matters must also be recorded and commented upon. _The television programme on the Channel 10 ~ network, which made these allegations for the first time in publ~c, was, in its terms, _sensational and also quite unfair to the pre~ent respond~nt. It cannot be said of the respo:r:ident, even now, that he is other than a person charged _with a series of criminal offences. He has never been heard in defence of himself, nor have the allegations made by the?! Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 22 -- 10 complainants·been tested by cross-examination <?r by. comparison· with other· contemporaneous evidence,·. if there be any. To conduct a· television programme· upc)J:i""the · assumptfo11' ,c-C' · • - • • - .. - • . .- ~ 1-· ·that allegations of criminal conduct.are ·true ·is intellectually ·dishonest· and, · from a legal point · of view; · is calculated to prejudice any subsequent fair trial of the persfrm so accused. ·Unfortunately, it seems · that this is the process regularly · adopted by television· journalists in this· ·country. One has great difficulty in concluding that their motivation is other than the attraction· of viewers · through sensationalism; They 10 Q. 20 I · 20 ·should realise that 'whatever value there may·· be in such prbgrainmes iri drawing public attention to apparently newsworthy _Q ·situations,' that value may be offset by the damage that they do :to the· operation' of the judicial system in the. event .that any _ ::subsequerit· · prosecution becomes . appropriate_ ... - T.he day will 30 •ihevi tably · arise upon · which a: prosecution will be stayed 30 40 ::becaus~ of · the way in which the media has ... compromised · the capaci.ty of the community to provide a fair trial.· The.damage done by.Channel 10 in this case has been 'furthe·r aggravated by ·a ·series of articles ·which· appeared in a hewspaper cai'led the II Illawarra Mercury",- which I assume . . -· - . circulates . in the area south of . Sydney, . including the - a~ea where these offences are a!leged_ to_-haye occurred.. At. least one·· of the editorial articles, written by a man called Cullen, shows a complete lack of balanC::e . of any kind. Criticism is 0 r-,, -· u 40 . 50 .. . 50 ·made of the· stipendia~y magistrate in a most unf~ir way and, 60 once again, the whole article proceeds upon the assumption that the · accusations ·are· tr'ue, without any attempt to examine them ..... - .--.-. or to accept the possibil_i ty ·that they ~ay _ be motivated by ill wi11 ·· or mischief. Govt. Printer, Qld. bnce . again, . the . publication . of these ·,?I .. 60 -- 4 of 22 -- 10 , ci / 20 I 30 C c:.40 articles must, to some . extent, create the :i;:-isk _ that the capacity of the New .South Wales communi t.Y to , provide a fair trial . will be compromised ... Having . said those.• things though, I should add that there has been a delay now approaching two years between the television programme. and any . subsequent proceedings, and ther.e has also been a substantial period of time elapsing since the newspaper articles, although there has been another more recent article in the "Illawarra Mercury" which will,.· no doubt, have reinforced what has previously been published. I make these observations in the hope that, firstly~ they will, when coupled with comments made by other· judges in_pth,er cases,. lead the press and the t~levision rep~_rters to take on a more responsible and even-handed vi.ew .. of_ allegations of cri111inal misconduct .. and, secondly, ,in __ the hope ,that in this particular case any order which I make will not be accoml?.ani~d by further fanfares in the press calculated to Ju.rt~er prejudice Mr. Holyoak's prospects of a. fair trial. The_ matter has proceeded. before me on the basis that it is,. in ef_fect, an application 1?Y the respo_ndent pursuant to s. 18 ~ c.i,( cJ,.. In 10 20 30 40 support of such an application, it is alleged that it is e~ther unjust or oppressive to return Mr. Holyoak at this time. Under the heading of injustice <;i number of mat~ers are poi,nted. t.o, some of which touch the matters I have just . mentioned, . namely the television and new::3paper reporting of . the matter_. Al though 50 50 60 I am sensible of the need to prev_ent th~ p:r::~judice of trial?, this is a problem _wI:iich regularly arises these days, and courts are developing a _certain amount of expertise in diffusing the consequences of such ir~esponsible journalism. .· Further, as I have said, the~e has qeen a substantial del~y and will be . ,. . - - Govt. Printer, Qld. 5 60 -- 5 of 22 -- 10 a further delay before the matter goes toa•jury_if that is to be the , case, assuming, of. course, : that there is no repetition of this previous misconduct.·; ·-·- , The other areas. of injustice include firstly, the difficulties incidental -to producing evidence·as to the' circumstances·at the time and as to the investigation which, as I have said, ,was apparently made at the time, the probable .death of the relevant medical practitioner to which · I have 10 already referred and the probability Mrs. Holyoak will not jbe able to give evidence·at the trial. ·I think also that 20 I 0 30 1 the financial embarrassment of the respondent is relevant under this heading. A very large number of these points really relate to the great delay in bringing the prosecution· rather-than.to·theconsequences of his being extradited. In any: event,there wo:uld_be difficulties in_ defending such ·charges after such a·1ong period_of time and further there would:be difficulties i:n producing Mrs. Holyoak as a witness, given·her.state of health. However, these ·are matters to 'which the New South Wales Director of Public Prosecutions 20 (J. 30 Cl v 40 :and the •New South ·wales courts may appr6p£ia:tely --~five attention /'\1 40'--J· in due course.·'_"The difficulty in calling Mrs. Holyoak·will be so :exacerbated by the .fact that she" is now _in Queenslarid. On the other hand, although I think she may be a likely witness, itis diffi.cul t · to be certain at this stage whether she will be or not and how.important she will be if called. This may in the end depend · upon· the · precision of the complaints made aga~nst Mr. · Holyoak,· inc'luding · in particular the circumstances ·• and times at which i. t is -alleged each offence occurred. It is true, too,· that she might 'be expected ·to give some_ evidence as to Mr. Holyoak's sexual capacity at the time, but·again this would 50 z1!'1 --~6~0---lr-----------------------------------~---' 60 Govt. Printer, Old. 6 -- 6 of 22 -- Ii ., Ii ii I, 10 r·- "--· 20 30 C 40 not be an answer to all of the charges as some·of them do not involve" penetration .. I should say at · this stage that the nature of the offences must be seen as·being quite serious, -and I should also say that they are of a: kind which is often raised at a late· stage. - • It - •is· said that children who are sexually abused may very· often not make complaint at the time for a variety of reasons, and that late allegations are understandable and should not be a . disqualification from prosecution. On the other hand, of •· course, complaints . and prosecutions 20 years. after the alleged offence do nothing to enhance the image of the judicial system,·and that too must be taken into account· together with the seriousness of the offence in the context with which I am presently concerned. The question of the financial position of Mr. Holyoak has caused me concern.· Had these allegations been made. whilst he was still in employment, it is reasonable to infar that·,he would .have been able. to make financial arrangements ;for· his defence and for ·his . attendance at Sydney for trial. However he has virtually no financial resources now. I· •think:'· though that I can overcome-this problem by conditioning any. order upon the receipt of undertakings from the appropriate authorities in New South. Wales firstly, that he will have· the benefit of public defence at his committal proceedings and at any trials,. secondly, that for so long ·as he is on bail, the Director of Prosecutions or the·. Commissioner of Police will, meet the 10 20 30 40 50 50 60 reasonable costs of ·· his . travelling·· to · and ·• from • his home· .i,n Queensland for the purpose of attending at committal proceedings or trials and thirdly, that the Director of Public Prosecutions or Commissioner. of Police.will meet the. reasonable expenses incurred by him· in·residing in Sydney for the purpose-jll Govt. Printer, Old. 7 60 -- 7 of 22 -- 10 20 30 :10 ,I <:>f atte~dirig .at cqmmi ttal -proceedings, or trJals.. • ._ Al though.. · there is some i~justipe incidental _,to the. gre.at. delay.s which have occurred, I think that in general ,<they•·ca:h be met by' the·~. l 10 sorts of conditions to which I have referred or alternatively, they are matters which can be better considered by·· the Director of Public Prosecutions. in New South Wales and by the relevant court and subsequent . appellate courts . than by me on ._ an application of- this kind. I do not think there is any question of injustice which should operate to prevent. an order for extradition. 0 . I. turn to the question of oppression. As is often the .G?-s~, --.the_ word "qppressive" is very di.fficult. to distinguish in meaI]-ing ,from "unjust", -_which is used in_ conjunction with it. The Shorter Oxford Dictionary qefines "oppress" relevantly as: 20 "To_ press .injuriously _upon, .to. press .down by force, to crush, trample down, smother, to overpower or weigh down, to .lie; heavy on, weigh down, crush, to put down, . suppress I 30 to crush, overwhelm, to put an end to, to suppress, keep 1 . 91.!~ of . sight,. • to keep under by tyrannical exercise · of power,·· to -load or burden with cruel or unjust impositions 0 or restraints to tyrannize over, . to bear heavily upon, to Q reduce to straits, to harass, distress, to come upon - une;xpectedly, take by surprise. " The-adjec~ive "oppress:1-ve" is defined as: ~- :tlOf: the: nature · of oppression, unjustly• burdensome, harsh or merciless, having the quality of.oppressing or.weighing heavily on the._- mi.nd, spirits or sen_ses,. . depressing, overpowering• II . . . It is, I' think, true that if one took· some o:f these - meanings, one would find that they describe the consequences of _any 50 criminal: ·prosecution upon· ·an :accused person: - . Obviously, - any 50 person of · normal sensi ti vi ty who is charged with a criminal .. offence is likely to · find it lying heavily upon his spirits. It seems to me that the use of the word "oppressive" in this context is more closely related to those meanings which dealt ~ p --~-----,---------------------------~--~~--------'60 Govt. Printer, Qld. -- 8 of 22 -- 0 0 10 with the tyrannical exercise of power or loading or burdening with cruel or unjust impositions or restraints, harassment or distress. The matters which are said to be oppressive relate primarily to the personal circumstances of the respondent. He is 71 years of age, he has been married for 50 years, his wife and he are both in ill health. He has always lived publicly. The offences occurred a long time ago. He has no substantial assets or income and he is faced with the 1 prospect of ,a large number of trials at a very late stage in ! 20 I his life. Although I am satisfied that there are, or possibly 30 ; may be elements of oppression about the proceedings, it -seems to ,me. · they must also be seen in the light of the likely prosecution process as a whole . .. Once again~. it will -be for ~he D~rector of Public Prosecutions in New South Wales and the courts to decide' whether or not the prosecution should proceed having regard to the public interest and the valid interests of the respondent. In considering these various issues~ it is appropriate to keep this in mind in determining whether ·the circumstances are. such as to render it oppressive to returri this man · to stand his trial. If ·it were likely that· these factors would not receive consideration in New South Wales, then I might well come to the conclusion that it would be oppressive to return him by way of extradition. However, as I 10 20 30 40 . 50 50 60 am satisfied they will be given appropriate weight by the Director of Pubiic Prosecutions and by the New South Wales courts, and if necessary the High Court, I cannot see that it would be oppressive to order him to return to stand his trial. In the circumstances, I am not satisfied as to either of ;JI Govt. Printer, Qld. 9 60 -- 9 of 22 -- -~---------- ---·-- --~-----------------------~---- 10 I i the limbs of : s. 18-. 6 ( c) and for · that reason I· order that· Victor Percival John Holyoak . be admitted to bail on his own undertaking on condition··. that he appear at the Central Local Court, Sydney at 10 a.m. on 30 April 1990 to answer the charges made against hi·m as appears· from warrants beirig Exhib{ts A to T to the affidavit of Patrick Phillip Clear filed herein on 10 November 1989. This order is conditional upon the following and will not take effect until such time as these · coridi tions have been I satisfied: I 20 I 30 40' sci 60 (a) ( b) that the appropriate authority of the New South .. Wales Government undertake to the Court in writing that public defence or equivalent funding will be available to the respondent for the purposes of his committal proceedings and trials;- that the Director of Public Prosecutions for New South Wales or the Commissioner of Police for New South Wales undertake to the Court· in writing to meet all reasonable travelling expenses of and incidental to the travel by the respondent to and from his home at . Mudj imba in the State of · Queensland for the purpose of attending at his committal proceedings and any trials; (c) that the said Director or Commissioner undertake to the Court in . writing to meet. all reasonable accommodation and living expenses incurred by the respondent of and incidental to residing in Sydney for the purpose of attending his committal proceedings and any trials. I appreciate that Mr. AllJ,~rena has not had the opportunity Govt. Printer, Old. 10 10 0 2') 0 30 0- 50 60 -- 10 of 22 -- 10 20 30 (Ao. 50 60 of discussing .. these underta!dngs .. with thos~ who ,instruct him ..... 1.. ,._a,,., In the event that the applicant wishes to be heard further -.- - , __ in respect of those .conditions, I will be willing to entertain further submissions. I adjourn the summons to a date to be fixed with liberty to apply. Govt. Printer, Qld. • 11 10 20 30 40 50 60 -- 11 of 22 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 1056 of 1989 IN THE MATTER of "The Commonwealth Service and Executive of Process Act 1901 ( Cornmonweal th) as amended" - and - IN THE MATTER of PATRICK PHILLIP CLEAR - and - · Appellant(Informant) VICTOR PERCIVAL JOHN HOLYOAKE JUDGMENT - DOWSETT J. Respondent . (Defendant) Delivered the Twenty-second day of March, 1990. This is an application by Patrick Phillip Clear pursuant to s. 19 of the "Service and Execution of Process Act" for review of an order made by the Stipendiary Magistrate at Maroochydore on 22nd February, 1989. The respondent had been arrested on the authority of a warrant issued in accordance with s. 18 of the Act. The Magistrate discharged the respondent, thus denying an application by the present applicant for the extradition of Holyoake to New South Wales to face certain criminal charges. Very briefly, it is alleged against Holyoake that in the years between 1964 and 1970, he managed a children's home and that during that time he, on numerous occasions, interfered sexually with a number of the children in his care. It would seem that no complaint was made against him until some time in -- 12 of 22 -- 2 1988 when the allegations were disclosed on a television current affairs programme. The respondent was by.that time living in Queensland and had been here for some years. Thus it was necessary to secure his extrad:i, tion if charges were to be preferred against him in New South Wales. With this end in mind, the procedure prescribed bys. 18 of the Act was initiated with the result indicated above. At the outset before me, counsel for the applicant made it clear that he considered there were substantial difficulties to be overcome by the applicant if he were to be successful. Without addressing the merits of the application, I considered that counsel may have been taking too narrow a view of the power conferred bys. ·19, and the matter·thereafter proceeded as a preliminary application to determine the nature of the prescribed review process. Section 18 contemplates the issue of a warrant in the state or "I'.>art of the Commonwealth in which an offence is alleged to have· occurred.- The warrant is then presented to a Magistrate, Justice of the Peace or officer of a Court who has power to issue warrants in the· state· in which the suspect is located. That Ma~istrate, -Jristic~ or other officer may endorse the warrant, authorising its execution in his state. The suspect may be arreste~ purs:\iant to the warrant and brought before a Magistrate or· Justice. · The Magistrate or Justice may then issue his own warrant for the return·of· the suspect to the original state or admit the suspect to bail, upon condition that he appear in that other ·state at a· s_peci£:i.ed time and place. - Sub-section (6) is primarily relevant for present purposes and provides as follows: - " -- 13 of 22 -- , I ! I I' I ,1 ii 3 "If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that - (a) the charge is of a trivial nature; (b) the application for the return of the person has not been made in good faith in the interests of justice;or (c) for any reason, it would be unjust or oppressive to return the person either at all or until-. the expiration of a certain period, the Magistrate or Justice of the Peace may - (d) order the discharge of the person; (e) order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or (f) make such other order as he thinks just.II -Section 19 relevantly provides:- "(1) Where - ( 2) (a) . (b) a Magistrate or Justice of the Peace has made, under sub-s. (6) of the last· preceding section, an order. for the discharge of an apprehended person ... , the person bringing the warrant may apply to a Judge of the Supreme Court of the state ... in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may revieK the order. (3) . The review of the order shall be by way of rehearing, and evidence in addition to, .· or in substitution for, the evidence given on the making of the order may begiven_ on or in connection with the.review. ( 4J ( 5) _Upon the review of an order, the Judge may confirm orvary the order or quash the order and substitute a new order _in its stead. -- 14 of 22 -- 4 (6) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistra-te or Justice' of the Peace." The ambit of ·. an appeal by way of rehearing has long been the subject of discussion in the cases. Should the term be taken as indicatfng an intention that the appeal be by way of hearing de novo, or should the appeal proceed upon the record below? For present purposes, one would have thought that the question had long ago been answered by the High Court in Aston v. Irvine (1955) 92 C.L.R.353 at p.365-6. In that ca~e their Honours were considering the constitutional validity of · the legislation and in particular, of ss. 18 and 19. Their Honours considered ·that:- "'I'he authority committed by sub-s. ( 3), ( 5) and ( 6) to ' the magistrate or justice is susceptible of being tr.eated as a judicial function. For the question whether a person actually within one state is liable .. to be. sent under a law of the Commonwealth for trial ~·· to another·state•might be treated by the legislature . as a matter. arising under a law made by the Parliament ··-within s. 76(ii) for the purpose of s. 77(iii) of the Constitution. But the scheme of s. 18 and s. 19 seems to··' be to treat ·the· magistrate or· the justice as exercising a preliminary discretion to grant, so to speak, process ministerially and then to submit for •c judicial review by a judge of the Supreme Court the ~hole ·questidn of the liability of the person apprehended to be returned to the state originating the 'proceeding.·· ·. Sub-section (3) of s. 18 gives to the magistrate or justice before whom is brought the person apprehended urider the· endorsed warrant a bare power·to order him to be returned in custody to that state or to admit hi~ to bail-tb appe~r there. Sub-section (6) enables the magistrate or justice to discharge him if it appears that·the bharge is of a trivial nature; that the application for his return is not made in good faith in the interests of justice or that for any r~ason it would be unjust or oppressive to return .him at alr ot' untiY-the expiration of a certain period. This does not necessarily amount to a grant of the judicial power of the Commonwealth and there is no reason to treat the provision as unconstitutional. -- 15 of 22 -- 5 Buts. 19 gives the accused person, if his return is directed, or the. person bringing the warrant, if the accused is discharged, a right to resort to a judge the Supreme Court for a review of the matter. The review is by way of rehearing and may be on fresh evidence. · The judge may confirm, vary or quash the order and substitute a new order. He may release the accused on bail and.exercise other incidental powers. Closely as the powers of the judge may resemble the authority of the magistrate or justice, the provision nevertheless does appear to treat the question as a matter arising under Federal law for decision by a court of justice. There is no reason why it should not be so treated. The pattern of the legislation resembles in a very general way the pattern of the taxing laws which enable the commissioner or a board of review to make a binding assessment subject to appeal to the court in its original jurisdiction. Section 19 involves an exercise of the legislative power conferred on the parliament bys. 77{3) of the Constitution. Notwithstanding the fact that .the jurisdiction is in terms conferred on a judge of the· Supreme Court of a state and not upon the court eo nomine, it is a valid exercise of the power. 11 The. High Court identified the s. · 19 procedure as :being ' review by the court of an administrative. decision. Give.n _·their. . . ~.. ,. . -·' ·, Honours' views,. it is. difficult to characterize ,the review procedure as other than an appeal by way of rehearing in the fullest sense of that word. Nonetheless it has beeμ submitted before me to the contrary. The .starting point, and indeed the most helpful discussion of the matter is to be found in the decision of the High.Court in Builders' Licensing Board v. Sperway Constructions (Syd) Pty. Ltd. (1976) 135 C.L.R.616, in the judgmentof Mason J. (as he then was), with whom Barwick C.J. and Stephen J. agreed. His ·- Honour was considering the right of appeal from the New South Wales Builders' Licensing Board to the District Court. The Board had the power to deal. with a licensee under certain disciplinary pr~visions, after ~alling upon him to show cause. -- 16 of 22 -- 6 The Board was then obliged to· enquire into · the grounds upon which the licensee had been asked to show cause, which enquiry was to be conducted Openly before the Board or a member. There was a right to legal representation at the enquiry. The licensee in•question was called upon to show cause but elected to adduce no evidence before the chairman. The enquiry proceeded in the ·absence of the licensee, who declined to attend further·. The Board made a determination adverse to the licerisee, who ther~Upori appealed· to the District Court. The legi'.sl'ation •·provided for an appeal by way of rehearing. The District Court Judge indicated an intention to proceed upon the basis· that the Board must begin and adduce evidence in support of the complaint. The Board appealed to the High Court against this decision .. At~p~ 619, Mason-~~ considered the history of the appeal procedure. ·His Honour pointed out that in some cases, an appeal by way of rehearing is conducted upon the original record below, but ofteri ·with a special power to call further. evidence. On such an appeal·, the rights of the parties must be determined by reference to the 'circumstances as they· exist at the time of determinati6n of the~appeal and by reference to the law as it then exists. The appellate court must give such ·judgment as ought to be given if the case were before the court at first instance at that time. Such an appeal is to be contrasted with an appeal stricto sensu in which the court considers whether or not the decision appealed from was correct at the time at which it was given, proceed-ing upon the evidence as it was before the lower court. An appeal by· way of rehearing, as it would seem to -- 17 of 22 -- 7 me, must automatically imply a right to receive fresh-evidence, otherwise it would not be possible to . show · a change in circumstances since trial.· Notwithstanding this, rules of court ( including those of this. Court) often make special provision for receiving further evidence when there is an appeal by way of rehearing. The explanation for this is probably that advanced by Jacobs J. in Sperway. (supra) at p. 626, where his Honour. suggests that the express power to receive further evidence is really a restriction on the right which is otherwise conferred by virtue of- the fact that the appeal is to be by way ~f rehearing. Returning to the judgment of Mason J. at p. 621, ·his Honour_: suggests that "Where a right of appeal is given to a court from the decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect ... The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority~ There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. " However the key to his Honour's reasons appears later on p. 621 when his Honour observes:- "But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are . too ·general to be of decisive assistance. Primarily it is a question of elucidating the legislative -- 18 of 22 -- 8 intent, a question which in the circumstances of this case is not greatly illuminated by ,the Delphic utterance that the appeal is by way of rehearing." In the present case, the proceedings before the Stipendiary ' . Magistrate were by way of a full hearing. Evidence was given in support of the warrant, and evidence was called from Mr. Holyoake and from his son as to circumstances said to show that it would be oppressive or unjust to order his extradition. The Magistrate then made a decision based upon that evidence . ., I think that there has been some confusion in the submissions made before me because of this fact. If one were to look at the proceedings before the Magistrate, one would no doubt come to the conclusion that he had proceeded in a judicial way and reached a judicial decision. A record was kept and reasons were given. Hence the force of the observations by Mason J. as to ' why an appeal from the exercise of an administrative power will ~· , ~ usually be determined upon a hearing de nova would seem to be greatly reduced. However the nature of this review cannot be determined or varied by the way in which the proceedings were conducted before the Magistrate in this case. It must be - - determined by reference to the Act. The review is a statutory process regulated by the relevant statute. I must look to the statute to determine the nature of the appeal, not to the way in which the decision below was taken in a particular case. It was submitted to, me that a Justice of the Peace in Queensland has available to him procedures for recording evidence and may be obliged to keep such a record. This may be so, but it does not answer the question which is as to the nature of the proceedings contemplated by ss. 18 and 19. As is -- 19 of 22 -- 9 well known, many thousands of people throughout the Commonwealth have been appointed by the relevant state and territorial governments to be Justices _of the Peace. These people are almost invariably without legal training and act in an honorary capacity. It is clear from the "Acts Interpretation Act" (Commonwealth) that such persons may exercise the powers confe~red bys. 18. While, in an appropriate case, such persons may be entitled to record proceedings before them, and indeed may be obliged to do so, this does not affect the nature of the review process prescribed_by s. 19. The fact that the Commonwealth Parliament has conferred the power to make decisions pursuant to s. 18 upon Justices of the Peace, given the number and circumstances of persons who fall into that class, leads one to believe that the nature of the review contemplated bys. 19 is more likely to be of the wider sort discussed by Mason J. in Sperway than of the more limited sort usually available from the decision of a Judge or Stipendiary Magistrate, notwithstanding the fact that a Magistrate, too, may on occasions exercise the power conferred by s. 18. This is simply a result of the close historical association between the offices of Stipendiary Magistrate and Justice. The decision in Aston (supra) makes it clear that the procedure under s. 18 should be seen as administrative rather than judicial. Thus the general comments made by Mason J. in Sperway are apposite, notwithstanding the fact that in some circumstances, the shortcomings usually found in administrative procedures, as referred to by Mason J., may not occur. -- 20 of 22 -- 10 Turning fa.the Act; it is.clear that the appeal is to be by way of rehearing and that evidence, "in addition to, : or in substitution for the evidence given on the making of the order", may be received. This goes beyond the reception of evidence simply for the purposes of an appeal by way of rehearing, namely to show any new facts arising since the decision below. Further, the reviewing judge may, "confirm or vary the order, or quash the order and substitute a new order in its stead", suggesting a review in the wider sense. In argument I was referred to a number of other decisions, including a number of decisions at first instance by Judges of this court and decisions of the Full Court. In the end, however, I do not think that those decisions take the matter any further than does Sperway. The correct interpretation of the power of review conferred bys. 19 is indicated clearly by the decision in Aston (supra), although their Honours were not there specifically concerned with the present problem. The decision that the procedures under s. 18 should be seen as administrative and the procedures under s.· 19 as being judicial and the other general observations made in Aston lead me to the conclusion that the proper approach to s. 19 is to treat the review procedure as a rehearing de nova. I am reinforced in those views by the observations of Mason J. in Sperway, notwithstanding the fact that in the events which have occurred in the present case, much of his Honour's reasoning may be seen to be inapplicable. It may be that certain procedural matters still remain for determination. For example, in an appropriate case, the record -- 21 of 22 -- ,, 11 below may be received and acted upon, notwithstanding the nature of the review procedure. I will hear submissions in this regard. -- 22 of 22 --