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High Court of Australia Transcripts |
Brisbane No B92 of 1999
B e t w e e n -
PETER CLARENCE FOSTER
Appellant
and
THE MINISTER FOR CUSTOMS AND JUSTICE SENATOR AMANDA VANSTONE
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 23 MARCH 2000, AT 2.51 PM
Copyright in the High Court of Australia
MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR D.C. RANGIAH, for the appellant. (instructed by Patrick Murphy)
MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friend, MR J.A. LOGAN, SC, for the respondent. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Sofronoff.
MR SOFRONOFF: Your Honours, might I invite you to go first to regulation 7 of the Extradition (Commonwealth Countries) Regulations and invite your Honours to look at the matters in subparagraphs (a), (b) and (c) of subregulation (1). We would wish to make two observations about those matters. The first is that there is no genus that one can infer from the first two, or the three specific matters that have been mentioned, and the second observation that we would wish to make is that the inclusion in subparagraph (c) of the words "any other sufficient cause" gives regulation 7(1), in our submission, the widest possible construction.
Your Honours, similar provisions have been considered from time to time and, relevantly, in Kakis v Republic of Cyprus, (1978) 1 WLR 779, Lord Diplock, at the foot of page 782, in a passage that has been cited and followed many, many times since, set out how his Honour understood the terms "unjust" and "oppressive" which were the terms that appeared in the equivalent English provision of that time and, at the foot of 782, his Honour said:
"Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as 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.
Your Honours, our provision in regulation 7 is wider than the provision that Lord Diplock was considering because the provision in the English Act did not contain the words "other sufficient cause". Your Honours will see that provision at page 786C of Kakis. There are, in the English provision in the Act of 1967, only three matters that may be considered which could give rise to injustice or oppression, namely, the trivial nature of the offence, the passage of time and the issue of good faith. That was a change in the English law. Previously they had a provision similar to ours in that they had the words "or otherwise".
I will give your Honours the reference to that where it can be conveniently found. It is Reg v Governor of Pentonville, Ex parte Narang (1978) AC 247 at 271. It is a case on our learned friend's list of authorities. The change in the English position is discussed there in the reasons of Viscount Dilhorne. Our provision is, like the earlier English provision in the Act of 1881, wide because of the inclusion of the words "any other sufficient cause". In England formerly the words "or otherwise" appeared. If your Honours go to page 271 of Narang, his Lordship was considering the more restricted terms of the provision as it appeared in the case before him. Just below page 271B his Lordship set out the 1967 Act, which was the one that Lord Diplock was considering, which contains only the three instances to which regard must be had and then below that set out the earlier provision in which the matters that could be regarded included the trivial nature of the case, good faith or otherwise. His Honour concluded at letter F:
The words "or otherwise" were omitted from section 8(3). They were given a wide construction in a number of cases though it was not until -
the case of Naranjan Singh -
that it was held that a wide construction was correct.....
The consequence of the omission of these words from the Act of 1967 is, as Lord Widgery CJ and Slynn J pointed out in the present case, and as Lord Parker CJ pointed in -
Teja -
that the powers of the court are now more restricted than they were and are now only exercisable if it appears that by reason of the trivial nature -
and so on. That is why, in our submission, when one has regard to English cases such as Oskar v Government of Australia, which I will deal with later if I may, one has to bear in mind that the range of matters that are open to be considered by the person - in England it is a court; here it is the Minister - are more limited. Could I ask your Honours to go to the Act.
HAYNE J: Just before you leave that, Mr Sofronoff, am I also to understand the other change made being to omit reference to "too severe a punishment"?
MR SOFRONOFF: That is right, your Honour. That was the other change made. If your Honours would go to section 22 of the Act, your Honours would be aware that after a person is arrested on a provisional warrant, that is a warrant issued in this country, for extradition purposes, that person is taken before a magistrate who has to conduct proceedings to determine eligibility for surrender. Those are matters of objective fact relating to whether or not the offence qualifies as an extraditable offence and so on. Your Honours need not trouble with that for the moment.
Should a magistrate make such a decision, then subject to review by a court, the next step in the process is the determination of the Attorney-General under section 22(2), whether to surrender that person and subsection (3) provides that the Attorney-General may only make a determination in favour of surrender if the Attorney-General is satisfied as to certain matters.
GAUDRON J: Has that power been delegated to the Minister?
MR SOFRONOFF: Yes, yes.
GAUDRON J: And there is a provision of the Act that enables that to be done?
MR SOFRONOFF: Your Honour, I cannot remember now what the provision was, but it was litigated up to the point of the Full Federal Court and the Full Federal Court determined that the Minister could make the determination, so there is no issue about that now. I will find the relevant provision before the appeal is over.
GAUDRON J: Yes.
KIRBY J: This is delegation pursuant to the Act itself.
MR SOFRONOFF: I am just not sure, your Honour.
KIRBY J: Yes.
MR SOFRONOFF: If your Honours would go to subsection (3), the Attorney's authority to determine that a person should be surrendered is limited. The Attorney must be:
satisfied that there is no extradition objection in relation to the offence -
that relates to whether there is a political element to the offence and so on. The Attorney must be:
satisfied that.....the person will not be subjected to torture -
there must be "an undertaking" in relation to any death penalty that exists. There must be a "speciality assurance" given and then finally, and relevantly, in subsection (e), if the "Act applies in relation to" a "country" subject to a condition that "surrender.....shall be refused.....in certain circumstances - the Attorney-General" must be satisfied that the "circumstances do not exist". Reference is made there to section 11 which I would invite your Honours to look at. Section 11 provides for the making of regulations which would limit the application of the Act to specified extradition countries to make it subject to conditions and limitations, and that has been done in relation to Commonwealth countries by regulation 7, so the effect is that section 22(3)(e) requires the Attorney to be satisfied that certain circumstances do not exist and those circumstances are those in regulation 7.
KIRBY J: The Attorney-General would not do these inquiries himself or herself, or the Minister. This obviously posits the provision to the Minister of an appropriate report?
MR SOFRONOFF: Yes, of advice.
KIRBY J: And that is what happened in this case, and I assume all other cases?
MR SOFRONOFF: Correct, yes. It certainly happened in this case and it appears to be common ground that the reports that were given to the Minister formed the basis for the Minister's decision.
GLEESON CJ: And it is the failure of that report to address a particular question that constitutes the grant of your application?
MR SOFRONOFF: It is, your Honour, it is.
GLEESON CJ: What exactly is the question?
MR SOFRONOFF: The question is, is the time spent in custody by the appellant such that the likely penalty that he would receive in England would be either such a low sentence of imprisonment, or no custodial sentence whatsoever, that it would render it oppressive or too severe a punishment to surrender him.
GLEESON CJ: So it is a question as to the likely exercise of discretion by a sentencing judicial officer in England?
MR SOFRONOFF: Yes, your Honour, yes.
GLEESON CJ: That would be a judge or a magistrate? Which?
MR SOFRONOFF: It would be a judge.
GLEESON CJ: Right. So the fault in the approach taken to the decision making on which you rely is that there was no investigation made of whether or not a sentencing judge in England dealing with your client would or would not impose a substantial custodial sentence on top of the time that he has already been in prison?
MR SOFRONOFF: Yes.
GLEESON CJ: Is this on the assumption that your client pleads guilty or not guilty? That would be relevant to the exercise of any sentencing discretion, would it not?
MR SOFRONOFF: That would be relevant to the exercise of any sentencing discretion but it may not - - -
GLEESON CJ: Yes. What would be the proper assumption in that regard?
MR SOFRONOFF: Your Honour, I was about to say it may not matter in the instant case, given the time he has spent, whether he pleads guilty or does not plead guilty. The differential between the two, given the time that he spent in custody, may note be germane.
GLEESON CJ: That may be so, but should an assumption one way or the other be made about that?
MR SOFRONOFF: No. No.
KIRBY J: I think the question is still relevant because we have to test your theory of the section against the possibility that the Minister has to, as it were, speculate not only on what the discretion that will be exercised by the sentencing judge will be, not only what might be the subject of some review of the sentence, but what factors would enter into the sentence, such as offers of return to people who have been defrauded or a pleading of guilty and so on.
Are any of the other matters that have to be considered under the section of this problematical class? In other words, the death penalty, well, one just looks that up. But are any of the other matters that the Minister has to take into account of this variable malleable content? Torture, for example. Would one know whether in a particular case for particular offences - I suppose you could have some offences where even in oppressive countries there is no torture but in such countries there is for particular offences having a political character, so presumably - - -
MR SOFRONOFF: Your Honour, the direct answer is none of the other specific matters that are addressed in section 22 are of that flexible kind. With respect to torture, one can readily see that say a sentence of birching might be regarded here as torture and if that is possible under an enactment of a foreign country, then that is readily ascertainable as a matter of objectivity. However, although we are speaking of Commonwealth countries here, some of them from time to time are in such a state that one could readily accept that in some of them, despite the absence of the provision for lawful imposition of torture, there may be a risk that that would occur and that would be something that - - -
KIRBY J: There was a report only last week of one Commonwealth country where they were going to cut the person up and do it in public and do other such things to the person, so I assume it just depends from time to time on the evidence available.
MR SOFRONOFF: Yes, and in our submission, although it is true that the actual sentence that would be passed would depend upon a great number of matters, some of which will not be known until much later, it is always possible for a range to be given by those who are familiar with such things, such that for the broad purposes that the Attorney is required to consider it is possible to conclude that no oppression would result because some significant gaol term would, nevertheless, be imposed - 3 months, 4 months, 5 months, whatever it might be such that the arguments - - -
KIRBY J: So, is that your answer to the Solicitor's contention that you just look it up in the book and see what the maximum is that you have - - -
MR SOFRONOFF: That does not answer it, in our submission, because the book may say 15 years maximum for something when there is no prospect whatever that anything approaching that would be imposed.
HAYNE J: But does not that then suggest that the thing against which it has to be tested on your contention is maximum likely sentence, not maximum possible, but maximum likely.
MR SOFRONOFF: Correct, your Honour. That is what we submit.
HAYNE J: Assumedly, maximum likely after contested trial, no contrition, no restitution and no other ameliorating feature of the case.
MR SOFRONOFF: In the absence of the appellant having volunteered some such ameliorating feature which could be accepted.
GLEESON CJ: No prospects of rehabilitation?
MR SOFRONOFF: In some cases. This was one where that was put forward as having occurred by matters that were capable of investigation and could be objectively ascertained. They were addressed by the Minister.
GLEESON CJ: No consideration of need to protect the public against future fraud?
MR SOFRONOFF: That is something that would be encompassed in one's assessment of the likely range of penalties for an offence committed in the circumstances that these offences were said to have been committed. That is not something, in my submission, that one would address with mathematical precision. That is something that would go into one's exercise of judgment based on experience to give the opinion that for offences of this kind relating to the conduct that is alleged by the requesting country, the likely range of penalty, assuming everything else against the appellant would be, say, 5 months to 18 months and that would be enough for the Attorney to - - -
KIRBY J: How does this work in practice? I mean, in a large high commission such as London, you would have lawyers and legal counsel and people who could presumably get this sort of information, if only on the grapevine, but in a small - Cayman Islands or something like that - how is this posited to work? Does it mean that every high commission has to retain a lawyer to find out what is the current form of the judges of that particular jurisdiction.
MR SOFRONOFF: Your Honour, in every case where a request is made for extradition relating to a serious offence, there must be a prosecuting authority responsible for initiating that request and that prosecuting authority must have formed the view that the offence was sufficiently serious to warrant the trouble and expense of such proceedings and there must be somebody within that prosecuting authority who has formed the view as to the likely penalty that that person would face.
That may be, at the end of the day, a likely penalty that is falsified in the events by reason of factors outside the knowledge of that person but, nevertheless, it is a matter that can be communicated as a valid and, for these purposes, reliable expression of opinion or prediction as to the likely range.
GLEESON CJ: Mr Sofronoff, let it be accepted for the moment, for the purpose of argument, that it is possible to imagine a case in which the length of time that the person has already been in custody is such and the nature, other than triviality, of the offence is such that a confident opinion can be expressed by somebody familiar with the sentencing laws and practices of the foreign jurisdiction, that it is highly unlikely that even if this person were convicted after a contested hearing and had no mitigating circumstances to point to, any significant additional custodial term would be imposed. Let it be supposed that there may be such a case. In order to succeed in the present proceedings, do you have to establish that this was or may have been such a case, or do you merely have to show that it is possible to imagine such a case and, therefore, the Minister should have addressed her mind to whether this was such a case?
MR SOFRONOFF: The latter, your Honour, because she did not address her mind to whether this was such a case.
GLEESON CJ: Now, take that expression "any other.....cause" in paragraph (c), is the logical consequence of what you have just put, that if there is any imaginable reason why these provisions might apply, there will be a failure in the decision-making process if the decision maker does not go through considering every possibility?
MR SOFRONOFF: No, your Honour. Just as in a criminal trial, where the onus of disproving most offences lies on the prosecution, the prosecution does not have to imagine each defence to negative it, it has to arise as a live issue for consideration.
GLEESON CJ: But does it arise as a live issue just because somebody says it might be an issue?
MR SOFRONOFF: No, something would have to be put forward. Take the case of ill health brought about by delay. It would have to be something more than an assertion that six months have passed and the extraditable person is suffering ill health. That would be something that the Minister would not be expected to act upon to draw the conclusion that we would invite her to draw on this application. She would require something harder to make it a live issue that she is obliged to consider.
GLEESON CJ: Well, how much? What, an opinion from counsel?
MR SOFRONOFF: Does your Honour mean in the context of a case where sentence is considered?
GLEESON CJ: Yes.
MR SOFRONOFF: Well, it would depend on the case, but here solicitors wrote to make a submission that, on its face, is a rational and practical one. It was not merely that he had spent time in custody awaiting extradition, as your Honour would appreciate. It was that since the offences alleged against him now were committed, he has been sentenced to imprisonment in England and here such that a sentencing judge would be obliged to take into account that he had, since the commission of these offences, already suffered the penalty of imprisonment, apart from this imprisonment, and taking those into account, would have to give great weight to the question whether it is necessary to deter the appellant if he is convicted, to deter him, to sentence him to further imprisonment or whether the imprisonment he has already served is something that would satisfy.
Those, in our submission, are sensible and practical propositions that were put up by lawyers and deserved to be considered on their merits and, in our submission, they were not, but in order to consider them on their merits if the Minister is unable to find some flaw in the submission that would vitiate them, she would be obliged to do what was done in other respects in this very case and make an inquiry of the Serious Fraud Office to ask whether these are sound or unsound propositions that are put. So, that is how we would answer what your Honour has put to me.
KIRBY J: There is one other factor, I think, and that is that since the original request for extradition two of the offences were withdrawn, is that right?
MR SOFRONOFF: That is correct.
KIRBY J: And they followed the acquittal of a co-accused, did they?
MR SOFRONOFF: Not the acquittal, your Honour. They dropped the charges against them because their forensic experts, handwriting experts, had been of the opinion that he, Williams, had forged a document and now they have changed their minds and they say that Mr Foster had forged the document. So, in those circumstances they dropped the case against Williams and also against Mr Foster. It was a conspiracy offence. So, that leaves fewer offences than existed at the time of the original determination, but, of course, the Minister has made a further determination since then to take that into account.
KIRBY J: Thank you.
MR SOFRONOFF: It would be easy, in our submission, to think of cases where the great severity of penalty would be understood by most people as bearing on the question of whether it would be oppressive or too severe a punishment to extradite a person to a foreign country, for example, if there were provision in a foreign country that upon conviction for the extraditable offence - let us say a drug offence - there was a mandatory term of imprisonment of life for an offence here that would be regarded as a drug offence and therefore not trivial but in circumstances where by no stretch would such a consequence ever ensue here, say, in the case of a youthful second offender where some term - - -
KIRBY J: It could occur in certain jurisdictions - two jurisdictions of Australia a person would turn to this country - - -
MR SOFRONOFF: It could occur here, I was going to say, where a person is sought to be extradited for a third property offence which is, of itself, serious enough so as not to warrant the appellation trivial but where the first two might have been regarded as trivial but, nevertheless, with the consequence that a mandatory term of imprisonment for a youthful offender would be imposed. Now, opinions obviously can differ about whether that is oppressive or not oppressive but they are matters that illustrate, in our submission, that the likely penalty is something that can be most germane to the question that the Minister is obliged to direct her mind, namely, whether it is oppressive or too severe a punishment.
KIRBY J: Does birching come up under any other head or is it only available - - -
MR SOFRONOFF: It could only be torture, your Honour. If it is not torture, and minds could differ about that - they obviously do because, as we all know, somebody was caned in Singapore a few years ago. If it is not torture then it is certainly a matter that would be - as a likely or possible punishment, ought to be considered by the Minister before sending - in that case it was a youthful offender. It was not extradited but if it were an extradition case she would have to consider whether that was a matter that would render it oppressive.
The purpose of my mentioning severe punishment is this, once one admits that a severe punishment may be material, one admits that punishment is material and once one admits that punishment is material it can be readily accepted, in our submission, that if what is being sought is extradition in circumstances where no significant punishment will be imposed, the Minister may consider that that is something that renders the surrender oppressive or too severe a punishment.
McHUGH J: But does not your argument lead to the conclusion that the Attorney or Minister must examine the weight of the evidence to see whether or not the person may be convicted?
MR SOFRONOFF: No, your Honour.
McHUGH J: Why not?
MR SOFRONOFF: Because one thing that does emerge from the Extradition Act is that one does not have an occasion ever to test guilt or innocence.
McHUGH J: But why should not the Attorney have that obligation? If he has got an obligation to consider the sentence, why should he not have an obligation to consider the likelihood of conviction?
MR SOFRONOFF: Your Honour, I would answer the question that she would have an obligation to consider the likelihood of conviction only if it can be demonstrated that there is no real likelihood of conviction. That would be a rare case, but I say that because there is authority in this Court that that would be a matter that would render an extradition oppressive. The case is - - -
HAYNE J: But that is likely, is it not - that is likely to take you over to accusation not made in good faith? If there is no realistic prospect of conviction, one is at once perhaps into the field of accusation not in good faith and, if you are not in that territory, then where lies the middle ground?
McHUGH J: Why should you not have to take into account legal costs?
MR SOFRONOFF: Sorry, your Honour?
McHUGH J: Why should the Attorney not have to take into account the cost of defending the person, the length of the trial?
MR SOFRONOFF: He is obliged in some circumstances to do that, your Honour, where, for example, in some of the cases on our list there has been a long delay between offence and extradition request, during which period the extraditable person has not been in hiding and has settled in a new life and so on. Those sorts of factors are taken into account. The oppression that results from tearing him away from his position here to go to the trouble of defending old charges. So those are matters that cannot be excluded but in most cases would not be relevant because in every case where one is to be extradited one has to face the prospect of those sorts of burdens.
However, your Honour, if one has to face those sorts of burdens with the likelihood that no significant sentence is going to be imposed, then, in our submission, that is a different category for this reason, that we know from two provisions of the Act that it is only matters of significance that would warrant a surrender of a citizen or resident. We know that because trivial offences are excluded and we know that because in relation to - - -
McHUGH J: No, is that not a mistake and it throws up a problem I have with your whole argument at the moment? The theory is that you are extradited unless the Attorney-General achieves a certain state of satisfaction in respect of certain matters. Now, that is a condition, but you seek to impose a duty to inquire, which seems to me quite a different matter.
MR SOFRONOFF: The Attorney is obliged to be satisfied in every case that there is no injustice and oppression and so on, whether any particular matter, whether any idiosyncratic matter would give rise to injustice or oppression.
McHUGH J: Where do you get the proposition that the Attorney is obliged to be satisfied?
MR SOFRONOFF: From this, your Honour, that whereas formerly the preceding Act and the current Act in relation to New Zealand in section 34 requires the extraditable person positively to satisfy a magistrate or a judge, as the case may be, of the existence of triviality or injustice and so on, the new Act, the 1988 Act, provides in subsection (3) that the - - -
KIRBY J: Which section?
MR SOFRONOFF: Section 22(3), your Honour, which provides that the Attorney-General's authority to determine that a person should be surrendered is limited by the requirement that he must only make that determination if the Attorney:
is satisfied that there is no extradition objection.....
(b) the Attorney-General is satisfied that.....the person will not be subjected to torture -
The following two things are then objective matters, the specialty assurance and the death penalty issue. Then finally, where under section 11 a condition is imposed that would require no surrender in certain circumstances, the Attorney-General must be satisfied that the circumstances do not exist. There is a collision between the terms of subsection (e) which mandate that the Attorney-General shall be satisfied that the circumstances do not exist andregulation (7) which is written in terms that a person shall not be surrendered if the Attorney-General is satisfied of certain matters. They approach the question of satisfaction from opposite directions.
GLEESON CJ: But your submission, as I understood it, is that regulation 7 requires the Attorney-General to satisfy himself that it is not unjust or oppressive.
MR SOFRONOFF: Yes.
GLEESON CJ: Take the case of an offender who is unrepresented. How does the Attorney-General go about satisfying himself in the case of an unrepresented offender that it is not unjust or oppressive to do something?
MR SOFRONOFF: Your Honour, my answer at slightly greater length, without seeking to avoid giving a direct answer, in most cases the answers to the questions that the Attorney is obliged directly to consider that it is an extraditable offence, namely, a minimum maximum of two years, that there is no torture and no death penalty and so on and knowledge of the facts, the conduct that is said to constitute the offence, will answer that question if nothing else emerges. It would be necessary for there to be some feature to emerge to - - -
GLEESON CJ: I can understand how, if you have a person represented by a lawyer, you might be able to say, "Well, the Attorney-General can leave it to the lawyer to bring forward any consideration", but in the case of an unrepresented offender, how can the Attorney-General assume from silence on the part of the person that there is nothing that requires consideration if the Attorney-General has a duty to be satisfied that it is not unjust or oppressive?
MR SOFRONOFF: Just as a judge at a trial is obliged to ask a question of an accused person as to whether there is a matter of defence or anything else that that person wishes to say by way of defence and receiving the answer "No", he is not obliged to inquire further. However, such a judge would be obliged to pursue a matter that arises and captures his or her attention during the trial.
GLEESON CJ: So the Attorney is always obliged to say to an offender, "Is there anything you want to say as to why, under regulation 7, I should not be satisfied that it is unjust or oppressive?"?
MR SOFRONOFF: Yes, just as it is always, in our submission, necessary for the Attorney to ask the question of the requesting country and to be satisfied that the person will not be tortured and to make other inquiries. These are not, in our submission, large scale inquiries that are obliged by the terms of regulation 7 and in most cases nothing will arise for further consideration.
McHUGH J: But your argument is not that the Attorney-General, having given an opportunity to make submissions, failed to take it into account, is it? Your argument is that the Attorney failed to take into account something.
MR SOFRONOFF: Yes. In this case, it is, yes.
McHUGH J: So that puts a positive - that is where I am having difficulty. The Attorney-General in this case has been satisfied of each of the conditions. You say that satisfaction is of no effect because there was a duty to inquire about something, or to make some findings about something, and because the Attorney failed to do it, the satisfaction is of no effect. Now, how do you get that out of the legislation?
MR SOFRONOFF: Well, the Minister is obliged here to consider whether the surrender would be oppressive - - -
McHUGH J: She is satisfied; she is satisfied that it is not.
MR SOFRONOFF: But, relevantly, it was put to her that it would be oppressive because, notwithstanding surrender and trial, it is unlikely that any significant punishment would be imposed, and she did not consider that.
KIRBY J: Is it common ground that she declined in her second determination to consider that?
MR SOFRONOFF: No, your Honour. I think the Minister would say that she did consider it in that the likelihood of a sentence not being imposed would not render the offence trivial for the purposes of regulation 7. She was given advice to that effect which she, one can take it, accepted, and we would not contend the contrary.
KIRBY J: You have seen the advices.
MR SOFRONOFF: Yes, it is here in the books, your Honour. I will take your Honours to it in due course. Then the adviser put the proposition that it cannot be assumed that the sentence would be reduced. In our submission, that is the wrong way of approaching it. What the Minister ought to have done was to have considered, on advice, and on proper information, whether, in truth, Mr Foster would be sentenced to any term of imprisonment such that it would render it oppressive to return him. She never addressed that issue. She did not have any information before her in relation to that issue but for that which the solicitors put before her which - - -
GAUDRON J: If that did not satisfy her, why is not that the end of the matter?
GLEESON CJ: She addressed the issue whether she was satisfied that it would be unjust to oppress him.
MR SOFRONOFF: Your Honour, what she failed to do was to consider whether it would be oppressive in the event that it is likely that he would be given no custodial sentence or merely a nominal one.
KIRBY J: Your point is that you raised a specific matter which you said was a ground of oppression, namely that, having regard to the number of offences now available; having regard to the time he had served; having regard to the maximum penalties; that that ought to be taken into account in this particular case and she declined to go into that. She concentrated on triviality as distinct from the particular point that you were raising. Therefore, if she has satisfaction, it is satisfaction without addressing what you contend is a relevant matter.
MR SOFRONOFF: Yes, namely, the nature and extent of the penalty as giving rise to a possible oppression.
McHUGH J: They are factual matters. Judicial review is not concerned with reviewing the Minister's view about the facts of the case. There has to be some legal duty breached or some irrelevancy taken into account. This is not a Court of Sessions re-hearing of a Magistrate's - - -
MR SOFRONOFF: No, that is true, your Honour. We would give, in answer to that observation, what Justice Carr said in the Full Court. Could I take your Honour to that? If your Honours would go to volume 4 at page 911. At the foot of the page his Honour said:
The fact that the Minister did not consider what would be the likely range of punishment to be meted out to the appellant if convicted in England is, in my opinion, of considerable significance in the factual context of this particular matter to the question of whether it would be unjust or oppressive or too sever a punishment to surrender the appellant.
If it appeared, for example, that the appellant, if convicted in the United Kingdom in respect of the three remaining offences, would be likely to receive a non-custodial sentence or would be tried summarily and receive only a short (say 6 months) custodial sentence, then in my view that circumstance would have a central bearing on whether it would be oppressive (or possibly too harsh a punishment) to surrender him.
GLEESON CJ: Now, you have eliminated that second alternative, I think, in an answer you gave me earlier. You said the trial would be before a judge.
MR SOFRONOFF: I think that is correct, your Honour, yes.
GLEESON CJ: So we can forget about the tried summarily alternative?
MR SOFRONOFF: Yes.
GLEESON CJ: Yes.
MR SOFRONOFF: The elevation of such a consideration from one which is not irrelevant in administrative law terms to one which a decision maker is bound to consider is made easier, in my opinion, where, as here, the context is one of deprivation of liberty and the disruption of life of an Australian citizen whom the respondent has been asked to surrender to a foreign state.
Now, your Honour, earlier, Justice Carr had addressed the question of whether it can be inferred from the terms of the statute whether the likely nature and extent of the penalty is a matter that the Minister is bound to consider. Your Honours will find that at page 910. In the second half of the page his Honour said:
The statutory context, always important in identifying relevant considerations, points strongly against the respondent's submission. Section 22 demonstrates the particular relevance, in the decision-making process, of what is likely to happen to the eligible person in the extradition country on return -
Then his Honour sets out that it is necessary expressly to consider torture, death penalty and to have "a speciality assurance". In other words, the Minister is obliged to consider what will happen as a consequence of the successful prosecution of the extraditable person and he went on to say:
The likely range of the sentence in the extradition country can thus be seen as part of a continuum of considerations of varying degrees of seriousness, including the death penalty. In my view, it is not a factor which can be regarded as separable from considerations of unjustness, oppressiveness or severity of punishment.
Now, your Honour, in our submission, when one has regard to what the Minister is obliged to look at the Minister is obliged to consider what might be done to the extraditable person as a consequence of a successful hypothetical prosecution and germane to that is sentence and, in most cases, the likely range of sentence will be irrelevant to as giving rise to possible oppression or injustice or too severe a penalty but, in this case and in other cases like the examples I have mentioned earlier, it may well do and whether or not the Minister is satisfied there is no oppression is a matter for the Minister but at least she is bound to consider matters that she is bound to consider by - - -
GAUDRON J: But you go further than that, do you not? You go to the point where you say she was bound not only to consider our submission, but she was bound to make inquiries for herself?
MR SOFRONOFF: Yes.
GAUDRON J: It is that steps that seems to me to be the difficulty in your argument. The whole of regulation 7 really seems to be premised on submissions being made which the Minister will have regard to.
MR SOFRONOFF: In most cases, perhaps in all cases, your Honour, matters personal to the extraditable person are only known to that person and the Minister must be made aware of them, but once the Minister is made aware of them and there is a piece of information available for the Minister in order to place her in the position where she is satisfied or not satisfied of a relevant matter, then, in my submission, she cannot say she is satisfied it does not exist when she has failed to make that inquiry.
HAYNE J: Why? How do you construe the expression "having regard to all the circumstances" where it appears in regulation 7? Do you construe it as meaning having regard to all the circumstances as they objectively exist, having regard to all the circumstances as are placed before the Minister? How do you construe that expression?
MR SOFRONOFF: It must be matters which include both material placed before her by the extraditable person and material which, independently of that or as a result of that, she is obliged to obtain for herself. Matters independently of that of which she would be aware would be the matters such as the minimum-maximum penalty and matters of that kind.
HAYNE J: Those things would necessarily be before the Minister, by reason of the earlier steps in the process.
MR SOFRONOFF: Yes.
HAYNE J: But you would have it, as I understand it, or you would have to have it, as I understand it, that "having regard to all the circumstances", extends to the circumstances as they objectively exist and could be found on inquiry.
MR SOFRONOFF: Yes, on reasonable inquiry, because, your Honour, it cannot be a correct reading of the regulation which would leave the Minister able, although alerted to a matter of potential significance which would render her not satisfied within the meaning of section 22.
HAYNE J: But surely she can say, "You have told me this is your case. I do not accept it without further inquiry"? "You have told me this man will not be dealt with in a particular way if he goes back. I disregard that fact. I do not accept it", any other form of disposition.
MR SOFRONOFF: Only if that rejection is rational, your Honour, if it is based on rational matters and here - could I take your Honours to the advice that the Minister was given because that may assist me in making the points I wish to make. If your Honours would go to - - -
KIRBY J: I suppose this advice has to be given in every case. There would be some unrepresented people, for example, who would not know whether the death penalty attaches in a particular matter or whether particular punishments such as birching would be applied. All of these would be known by officials and will be placed - - -
MR SOFRONOFF: And appear from the terms of the advice to be dealt with as a matter of course by those officials.
KIRBY J: All you want to do effectively, if this appeal is upheld, is to add one which is not expressly stated in the statute which would draw the attention of the Minister to, in effect, what is the risk in terms of punishment which the person stands - in which he or she stands so that that is a factor that is taken into consideration to see whether it is worthwhile to disturb an Australian citizen and remove them for such a punishment. That is what you want to do.
MR SOFRONOFF: That is the effect of what we contend for, your Honour.
GLEESON CJ: But the risk being evaluated, not by reference to - - -
MR SOFRONOFF: I am sorry, your Honour, I did not catch that.
GLEESON CJ: The risk being evaluated, not by reference to maximum penalties, but by reference to the exercise of judicial discretion.
MR SOFRONOFF: Yes. Now, your Honour, in every case, in our submission, it is possible to give a range. The range may be so broad as not to give any confidence to an accused person because of imponderables, but it is always possible to give a range and the existence of the range itself may be capable - perhaps would satisfy the Minister that no oppression exists.
GLEESON CJ: Theoretically I suppose you could consult the sentencing guidelines that are regularly issued by the criminal division of the Court of Appeal in England.
MR SOFRONOFF: Or any other printed source. Could I ask your Honours to go to the first departmental memo in volume 2? I take your Honours to the first one because when the occasion came for the second determination after the proceedings in the Full Federal Court the second determination was largely dealt with by reference to the first advice. I do not complain about that but as a matter of fact that is what happened. There were some additional things put before the Minister but reference was made back to the original advice upon which she evidently relied.
KIRBY J: Pride of administrative authorship, no doubt.
MR SOFRONOFF: Pardon?
KIRBY J: Pride of administrative authorship.
MR SOFRONOFF: Yes. If your Honours would go to volume 2 at page 331 - I am sorry, your Honours, I should take you to where the submission was made on behalf of Mr Foster in volume 1 at page 14 to make sense of what will appear in the departmental advice. If your Honours would go to page 13.
Just at line 10 the submission is made that the offence is "trivial". The was rejected by the Minister and we do not seek to contend the contrary. Then, below line 15 I would invite your Honours to read to the foot of the page. Then, if your Honours go over to page 14 there are some additional matters put before the Minister relating to evidence of "rehabilitation since his incarceration" that your Honours need not read now, but if you go to the foot of page 14 the proposition is put directly - at the foot of the page and over to page 15 - - -
GLEESON CJ: Here the argument gets into prediction as to a sentencing judge's assessment of your client's prospects of rehabilitation.
MR SOFRONOFF: Yes. On page 14 it does. On the preceding page was the matter directly in issue and over the page which is - - -
KIRBY J: As I understand it your point, or your argument for, is not necessarily the Minister would have accepted your submission but that she was bound in law to take it into account.
MR SOFRONOFF: Yes, but she did not.
KIRBY J: She may have rejected it on the merits.
MR SOFRONOFF: Yes, on - - -
KIRBY J: It is not the business of a court of law to review the merits but you say that by putting it out of account, as you contend she did on this issue, she erred in law?
MR SOFRONOFF: Yes, and we seek to demonstrate that she did not take it into account by reference to the ministerial advice, the memorandum.
GLEESON CJ: Now, at the bottom of page 14, at line 43, there is a reference to "all such matters".
MR SOFRONOFF: Yes.
GLEESON CJ: Do those matters - - -
MR SOFRONOFF: The matters are, your Honour, as I apprehend it, those beginning on page 13, just below line 15, over to the foot of page 14.
GLEESON CJ: And, including a sentencing judge's assessment of your client's prospects of rehabilitation.
MR SOFRONOFF: Yes, that is true. But, if your Honours would then go to volume 2 at page 331 you will see those submissions dealt with in the middle of the page under the heading, "Trivial nature of the offence - sentencing". In paragraph 15 the proposition is summarised as going to the question of whether the offence can be regarded as trivial within the meaning of the regulation. Then, there is a summary of the matters that your Honours have just read and over the page in paragraph 19 they say:
No response sought specifically from the UK on this issue.
However, they did get information about other matters. Then, there is a conclusion at paragraph 21 and following.
GLEESON CJ: Well, 22 is of some importance, is it not?
MR SOFRONOFF: Yes.
GLEESON CJ: One of the propositions that was put before the Minister which might have been right or might have been wrong was that there is nothing to suggest that in this case "a United Kingdom sentencing judge" would "take into account the amount of time Mr Foster spent in custody prior to sentencing and any evidence of rehabilitation".
MR SOFRONOFF: That is true, your Honour, and that is repeated at page 333 in the sentence that begins:
However, it is reasonable to conclude that a sentencing judge would not necessarily take into account additional time spent in custody.....when the resolution of the proceedings has been prolonged at Mr Foster's own instigation.
GLEESON CJ: Suppose the Minister was misinformed about that. What would the consequence of that be?
MR SOFRONOFF: Your Honour, in our submission, the Minister has not been informed at all about that. What she has is the opinion of the person who wrote the document that there is no reason to assume that what Mr Nyst had said, the solicitor, in his letter is correct but, in our submission, once the point as a rational, reasonable point worthy of being looked at is raised, she ought not reject it without making an inquiry of the kind that this document shows was made in respect of other matters to the United Kingdom prosecution authorities.
GLEESON CJ: You mean she should have taken the matter further?
MR SOFRONOFF: Yes, and not dismissed those considerations without having some reason to dismiss them.
GLEESON CJ: Well, she was given a reason to dismiss them but you say it is a bad reason as a matter of fact.
MR SOFRONOFF: It is not a rational reason, your Honour. It is put to her that a sentencing judge would take into account the time spent in maximum security and by way of response that is not falsified. It is said, "You don't have to assume that that's correct".
GAUDRON J: If you do not have to assume that that is correct and you do not assume that that is correct, then you are not satisfied. This is not a question where you have to analyse the evidence one way or the other to establish conflicting propositions. This is a question of satisfaction. If you are not satisfied, you are not satisfied. If you do not accept the material, you are not satisfied.
MR SOFRONOFF: But, your Honour, section 22 obliges the Minister to be satisfied that the circumstances do not exist.
GAUDRON J: Section 22(3)(e) - - -
MR SOFRONOFF: The circumstances that she must be satisfied do not exist, in our submission, are oppression. I mentioned earlier, your Honour, there was - - -
GAUDRON J: Yes, it is a curiosity, particularly when you have regard to the fact that regulation 7 seems to be talking about subjective matters and about her being satisfied.
MR SOFRONOFF: Yes. Nevertheless, in our submission, in any conflict of expression between the Act and the regulations, it is the Act that must prevail. A matter having been put to her, it is not enough, in our submission, assuming that the matter put to her is on its face rational, for her to act on the basis that she is not prepared to assume that that is so. That could be said about every single submission that is put to her. If your Honours would go to page 333 - - -
GLEESON CJ: Have a look at paragraph 24 on page 333?
MR SOFRONOFF: Paragraph 24, your Honour, yes.
GLEESON CJ: This matter of his prospects of rehabilitation was one of the central matters that was urged on your client's behalf in support of the proposition that he would not get any significantly longer custodial sentence.
MR SOFRONOFF: One of three matters, your Honour.
GLEESON CJ: Yes.
MR SOFRONOFF: One of three matters, and they obtain, as your Honour sees in that paragraph, they obtained a view from those in a position to know about that and having obtained both views she was able to draw the conclusion that she did. Nothing like that happened with respect to the significance of the likely sentence given time already spent in prison.
HAYNE J: But the reason asserted by your client for the conclusion was investigated, challenged and disposed of, was it not? Your client asserts, "I will get only a light sentence because I have been rehabilitated", but the cause was investigated and disposed of.
MR SOFRONOFF: That was, your Honour, and we have made no complaint about that. But the other matter is, in our submission, a highly significant matter on its own which she ought to have taken into account and not rejected without being satisfied that there is no oppression. Now, she could not have done that without having some countervailing material in front of her which, we acknowledge, it is a matter for her to weigh but nevertheless she is obliged to have some matter before her because, for all we know from the failure to obtain any information, it may be true.
KIRBY J: Let me understand the point of distinction. Is the point of distinction between, on the one hand that she did, as you accept, take into account the prospect or non-prospect of rehabilitation but she did not take into account the fact that a number of offences had been withdrawn and that your client had served a period of imprisonment both in England and in Australia and had served a period in prison pending extradition? Is that it?
MR SOFRONOFF: With one correction that is what we say, your Honour. The correction is that she did take into account that the number of offences had been reduced.
KIRBY J: She did or did not?
MR SOFRONOFF: She dealt with it in the sense that she was informed of it.
KIRBY J: On the second - yes.
MR SOFRONOFF: And knew of it but it did not manifest itself in any recognition in relation to the sentencing question.
KIRBY J: She was, as is recorded, is it not, in this document or was it in the earlier submission, she was aware of the fact that he had served two periods of imprisonment.
MR SOFRONOFF: Yes.
GLEESON CJ: Mr Sofronoff, it was never put to the Minister, was it, that putting to one side any question of prospects of rehabilitation, even so, he would not get a significantly longer custodial sentence? The argument was put to her on the basis that as a result of a combination of considerations, including your client's prospects of rehabilitation, a sentencing judge would not sentence him to any significant further term.
MR SOFRONOFF: Your Honour, I am not sure that that is necessarily a fair reading of the submission that was made.
GLEESON CJ: Well, the submission said "having regard to all such matters".
MR SOFRONOFF: That is true, but if your Honour goes to the foot of page 13, after having dealt with time spent in gaol for various reasons, beginning on page 13, there is the sentence:
A sentencing Judge in the United Kingdom would surely consider that he has thus been already significantly punished for his.....role in these offences.
GLEESON CJ: Significantly does not mean sufficiently. We really are down to a very fine point of factual analysis if the outcome of this depends upon whether the argument that was put to her was put on the basis that even if she was against your client on one of these considerations, she should consider the other ones independently.
MR SOFRONOFF: No, your Honour, because if she were given advice that the likely range, ordinarily, leaving aside these sorts of factors, would be imprisonment for 9 months, but she were informed that the likely range, taking into account time already served, would be nothing, then that would be a matter that she would be bound to take into account, notwithstanding that she rejected as having any weight the issue of rehabilitation. She simply does not know what the likely penalty is going to be, given the matters that are objectively true, namely, that he did spend time in prison in the way described.
McHUGH J: But she was told that the offences were punishable by up to 10 years and that they cannot be classed as trivial simply because it is possible that a sentencing judge may take into account time already spent in custody. The submission to us said that even if a sentencing judge could take into account the amount of time spent in custody prior to sentencing, there is no evidence to suggest that a judge would do so here and she was told that if Mr Foster believes that he should not receive a further custodial sentence, this is the submission he will be free to make to the United Kingdom court if he is convicted of the extradition offences. I mean, really, all the relevant factors are before her.
MR SOFRONOFF: Your Honour, those were matters that were, on the one hand, directed to the question whether the offence was trivial or not - - -
McHUGH J: Well, I appreciate that, that the writer said that in his view this did not make the extradition offences trivial, but the basic issues were before the Minister.
GAUDRON J: And even if you talk about likely range, you are still only talking in the field of "might" and what might happen in a sentencing discretion is really entirely speculative. Why is it not possible to read it all as saying, "Well, it is speculative and one really cannot form an opinion"? One cannot be satisfied that it is oppressive because all of these matters can be taken into account by the sentencing judge.
MR SOFRONOFF: Because, your Honours, it may be that upon inquiry made, she obtains firmer advice than of the kind - - -
GAUDRON J: But she could never obtain firmer advice than that, could she, really?
MR SOFRONOFF: Your Honour is correct, with respect, when you put to me that it is always a matter of likelihood.
GAUDRON J: Yes.
MR SOFRONOFF: But likelihood is - - -
GAUDRON J: But about which there is, at best, a very significant degree of uncertainty.
MR SOFRONOFF: It depends on the case, your Honour.
GAUDRON J: Well, it may also depend on the sentencing judge, and it is a case in which the Serious Fraud Office is involved, one imagines that they are not going to go "light", as the saying sometimes is, or if they are pressing for extradition, there is no reason to assume that they are going to say, "Oh, probably does not deserve more than 6 months".
MR SOFRONOFF: Your Honour, on the other hand, it may be that there is a recognition in the Serious Fraud Office that these matters have not been brought to their attention. They themselves are of the view that the highly probable result is that Mr Foster will not serve another day in gaol in the United Kingdom. Now, if that were their view - - -
GAUDRON J: If that were their view, they might drop the request for extradition.
MR SOFRONOFF: Well, your Honour, if that were their view and had it been communicated to the Minister, then the result here might have been different.
KIRBY J: Sometimes people get locked into a course that they have embarked upon. As I understand it, you say it is relevant under the Act for the two extremes to be considered.
MR SOFRONOFF: Yes.
KIRBY J: If it is too much and birching, then it is a very proper thing for a minister to consider, and if it is not enough, then it is a very proper thing to consider whether you oppress an Australian citizen by sending them overseas. We have to test this proposition you are putting forward by those two extremes. It is not just this particular case.
MR SOFRONOFF: Yes, and your Honour puts the matter of principle to me as we would address it to the Court.
GLEESON CJ: This is all against a background where the Serious Fraud Office is pressing for extradition and your client is vigorously resisting it.
MR SOFRONOFF: Yes, yes.
GAUDRON J: And the Minister is supposed to investigate the possibility that nothing is going to happen to him when he gets there.
MR SOFRONOFF: Your Honour puts the question to me using the word "investigate". We would say "inquire".
KIRBY J: There were political statements made, were there not, about your client? There may be a flavour. That was investigated on some - - -
MR SOFRONOFF: As the material shows, it was a matter that - - -
KIRBY J: A question asked in Parliament, I think, in the United Kingdom.
MR SOFRONOFF: Questions were asked in the House of Lords and in Parliament here about it but, in our submission, one cannot, for all those kinds of reasons, rely upon the interest of the Serious Fraud Office, who may from time to time investigate frauds that others might not regard as very serious at all, or that do not warrant a high penalty.
KIRBY J: Now, in the special leave application in answer to Justice Hayne, you put forward a proposition that you have to have a comparator.
MR SOFRONOFF: Yes.
KIRBY J: Now, I would like to understand that. That had some effect on me at the time. I would like, at some time, for you to put that to me again so I can consider that.
MR SOFRONOFF: As I recollect, your Honour, the complaint that we make here is that it having been put to the Minister that he had served these separate periods of imprisonment it was necessary for the Minister to consider whether or not he would be sentenced to any imprisonment at all. If he was not to be sentenced to any term of imprisonment then she may well conclude that it is oppressive. If, notwithstanding these matters, he would, in any event, be given the full rate, whatever that may be. She may consider that that is equally oppressive - the failure is equally oppressive - but she needs - - -
KIRBY J: I thought the submission was locked into the words of either the statute or the regulation that in order to perform the function of considering whether or not - not the trivial point but else wise, that this was something you had to do in order to address the comparison that was - - -
MR SOFRONOFF: I think the submission that I made was that if one is to have regard to the words "oppressive" or "too severe a punishment" one has to compare the punishment that one is about to be given to one's notion of what is oppressive or too severe, so one cannot fulfil that function unless one has some knowledge of what is the likely maximum actual penalty, as opposed to the theoretical penalty set by the statute. It is not possible, in our submission, to be satisfied as the statute enjoins her to be, to be satisfied that the surrender would not be too severe a punishment when one is in ignorance of what the punishment is likely to be.
HAYNE J: How are you reading "punishment" when you make that submission?
MR SOFRONOFF: In the regulation, your Honour?
HAYNE J: Yes, what punishment are you there referring to? More accurately, what is the regulation talking about?
MR SOFRONOFF: We read the word "punishment" there as not referring specifically to penalty but - - -
HAYNE J: The punishment there spoken of is the punishment constituted by surrendering, is it not?
MR SOFRONOFF: The consequences that flow from surrender, yes, your Honour. The consequences.
HAYNE J: Yes.
KIRBY J: Justice Moore thought it was just the surrender itself, as distinct from the consequences that flow from it.
MR SOFRONOFF: We would respectfully submit that cannot be correct because the surrender itself must mean - surrender, itself, is simply the handing over of custody from Australian authorities to foreign authorities.
KIRBY J: With all the incidents, disruption of your life, getting on a plane, going on the other side of the world - - -
MR SOFRONOFF: That is what we would submit
KIRBY J: - - -waiting in a foreign gaol which might be vermin ridden - not in the United Kingdom but some other place.
MR SOFRONOFF: I am sure they are very clean over there, your Honour. The consequences of a successful prosecution, in our submission, would be one of the consequences of the surrender that would have to be regarded. Hence, in answer to your Honour Justice Hayne's question, we would submit that the word "punishment" there comprehends the consequences to the person of surrender, including penalty, if any.
Your Honours, may I deal briefly with the reasons in the Full Court as to the obligation of the Minister to inquire into these matters and then deal with Oskar's Case, which is the last matter I have to deal with. If your Honours would go to volume 4, there are three of the four judges who dealt with the question of what the Minister is obliged to do. The first of them was Justice Drummond at first instance at page 864 about line 20. After setting out the provisions of sections 22 and 11 and regulation 7, his Honour said:
This regulation, made pursuant to s 11(1)(b), establishes a limitation on the Minister's discretionary power under s 22(2) to order surrender, which by force of s 22(3)(e)(i) and (iii), prohibits the Minister ordering surrender unless the Minister first considers each of the circumstances referred to in reg 7 and then reaches the state of mind of being satisfied that none of those circumstances exist.
Justice Carr dealt with that at pages 902 over to 903. At 902 he set out the provisions and then referred to Justice Drummond's reasons and recited his Honour's conclusion at page 903 with apparent approval. I say "apparent approval" because his reasons are consistent only with such approval. That is reinforced at page 909 just below line 25 where Justice Carr said:
I agree, again respectfully, with his Honour's opinion (expressed in paragraphs 61 and following) that Regulation 7 required the respondent to form an opinion about the punishment which the appellant would be likely to receive if convicted of each extradition offence.
Then his Honour went on. Finally, Justice Moore at page 914.
KIRBY J: You lost before Justice Drummond.
MR SOFRONOFF: We lost only because, although his Honour thought likely sentence was a material matter here, the driving point, the time already spent in custody, was a factor that his Honour thought could not be given any weight - - -
KIRBY J: That was because it was your own fault.
MR SOFRONOFF: Because it was his own fault, but his Honour did that by what turned out to be an erroneous construction of appreciation of the source of the incarceration.
KIRBY J: And was that error common ground in the Full Court, the own fault?
MR SOFRONOFF: I think it was, your Honour. It is certainly not a matter of controversy as far as I am aware. His Honour was of the view that Mr Foster was incarcerated after the magistrate's decision that he ought to be extradited because he had absconded earlier. In fact, he was incarcerated because he was obliged to be incarcerated subject to a provision that I ought to point out to your Honours before I close.
If your Honours go to page 914, Justice Moore also considered that the Attorney-General was obliged to be satisfied of those matters. Your Honours will see that in the middle of the page and to the foot, just below line 20, he said:
It appears the object of reg 7 is to require the Attorney-General ordinarily to balance two sets of considerations. They are the nature of, and reasons for, the criminal proceedings for which the extradition is sought and the consequences of extradition for the person concerned.
Justice Kiefel did not address that aspect. I have already referred your Honours to the dicta of Justice Carr at page 910 which, in our submission, correctly identifies the aspects of section 22 which render a consideration of likely penalty, something that the Minister is bound to consider. I have taken your Honours to that earlier and I will not repeat that. Could I mention two final matters, your Honours. The first is a correction - - -
KIRBY J: Just on that point, you therefore gathered up Justice Drummond but he went off on your own fault. You gathered up Justice Carr and he gave you the remedy and you gathered up Justice Moore but he went off on the fact that the only punishment or the only consequence was the actual order of extradition.
MR SOFRONOFF: No, your Honour. His Honour thought that punishment, if it was too severe, was something that could be considered but not if it was too lenient. That appears at page 915 in the paragraph in the middle of the page.
KIRBY J: But that was because he was focusing on the moment of extradition as distinct from extradition plus all its consequences which include your imprisonment or the possibility of imprisonment again.
MR SOFRONOFF: No, your Honour. It was because, as he said at 915 in the paragraph beginning in the middle of the page, in the third line of it:
The prospect of excessive or inappropriate punishment on conviction may be relevant. However that is not because the expression "too severe a punishment" is a reference to the punishment that might be imposed on a surrendered person if convicted on the extradition offences. Rather it is because that expression, together with the expression "unjust or oppressive", raises for consideration the general adverse consequences of extradition on a person at risk of extradition.
And we would submit, as I did earlier, that the obverse is equally true and that if nothing is going to happen to this person then that would render it equally oppressive to uproot a person and extradite them.
GAUDRON J: Well, you do not have to say it would. You have only got to say it might.
MR SOFRONOFF: Likely, your Honour.
GAUDRON J: No, you only have to say it might be oppressive.
MR SOFRONOFF: Might be oppressive, yes.
GAUDRON J: Because, on that basis, you say the Minister could not be satisfied.
MR SOFRONOFF: That is correct. Your Honour, could I deal with Oskar's Case (1988) 1 AC 366, which is put against us by our learned friend in their outline. Your Honours, it is necessary to remember when reading Oskar that in Oskar there was no catch-all provision that we have in regulation 7 in the words "other sufficient cause". There are only the three express matters: triviality; lack of good faith; and the passage of time.
If your Honours would go to page 377, Lord Ackner began to consider a submission that had been made that the passage of time since the appellant was alleged to have committed the offence was contended to have made it unjust or oppressive to return him to Australia. He sets out the section and then over the page, at page 378 between letters C and F, he rejects the submission that was made, similar to the submission that we make to the Court today, and he does so on the footing, just above letter D:
Even on the assumption, which is a charitable one, that the appellant can pray in aid self-induced delay - because it is he who has challenged the magistrate's decision, we cannot speculate as to what is the appropriate sentence for the offence if it is established for the Australian courts to impose. Moreover, while there is no statutory obligation upon the Australian courts to take into account the time spent.....in custody......it is a potential relevant point of mitigation and one to which the Australian courts will doubtless give due weight. I consider that the Divisional Court was fully justified in concluding that the period of time which has elapsed since the commission of the alleged offence did not make it either unjust or oppressive -
We would make two observations about that, your Honours. The first is that the provision in England is one which triggers adversarial proceedings where it is a matter for the extraditable person to make it appear to the court. The section provides if it appears to the court and so the onus is on that person to demonstrate those matters. The second matter is that it is delay that was being considered there, not other sufficient cause, and the task that the appellant had in that case was to link time in prison to a consideration of delay whereas here we directly submit that time in prison itself is material.
Your Honours, there is one matter that I need to correct in our outline at page 12. In the last sentence of the outline we make the submission that, "The Act does not provide for the person eligible for extradition to make an application for bail once the process of appeal against the Magistrate's decision is completed." We would wish to add the words "other than section 26(5) but see section 26(6)." The effect of those sections, your Honours, is that it is realistically not possible to get bail once one is placed in the position of being an extraditable person. It is not impossible but it is something that is not ordinarily done and the reason Mr Foster obtained bail on the first such occasion was that he was able to establish to the satisfaction of a magistrate that he came within the exception by reason of threats that had been made against him and so on.
KIRBY J: It is hardly likely that he would have got another bail.
MR SOFRONOFF: I do not know, your Honour, once he was placed in the position of being a person against whom an order had been made by a magistrate. Those are our submissions, your Honours.
KIRBY J: He is still in custody awaiting extradition?
MR SOFRONOFF: That is correct.
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If your Honours please, we make three submissions which are set out at the beginning of our outline. The first is a question of construction, that the words "too severe a punishment" on the true construction of regulation 7(1) do not have the meaning for which my learned friend contends. We then say in any event it is not a consideration the Minister was bound to take into account and in any event we say she adequately dealt with it. Dealing with the first matter - - -
GAUDRON J: You do not contend contrary to Mr Sofronoff that the effect of section 22(3)(e), I think it is, requires her to be positively satisfied it is not oppressive, et cetera?
MR BENNETT: Your Honour, I have not appreciated fully the force of that contention until today. We certainly would wish to submit, if free to do so, that what 22(3)(e) requires is that the Minister be satisfied of the circumstances and the circumstances are that she is not satisfied of the matters in the regulation. In other words, what she has to be satisfied of is not the ultimate question but of her non-satisfaction.
GAUDRON J: That she is not - yes.
MR BENNETT: In that way the two work together perfectly. I had not really appreciated until today, and this may be my fault, that my learned friend was putting the contrary of that or that that was an issue in the appeal. Returning to regulation 7, the starting point is that when one looks at it the universe of triviality is dealt with by paragraph (a). That is concerned with the triviality of the effects. The classic case, I suppose, is where there is some very minor offence overseas or an offence which we would treat as minor.
KIRBY J: But that is quite a different trivia. It is the trivial nature of the offence, it is not the trivial consequences for the accused.
MR BENNETT: Precisely, your Honour. Which rather suggests that the trivial consequences for the accused are not something which is being contemplated. What is being contemplated here is that at the one extreme, because of the trivial nature of it, it is too severe a punishment to subject a person to extradition. For example, if one had a young Australian charged with smoking marihuana on one occasion in a country where that was regarded very much more seriously one might well say - well, the Minister might well say, "I consider the trivial nature of the offence as such that it would be too severe a punishment" or the Minister might say, "If this country gives 25 years for such an offence, that is other sufficient cause why it would be unjust or oppressive to return the person".
But, none of these make the actual lowness of the sentence in the foreign country a relevant criterion. One can even imagine, and as I have said in our submissions, we do not concede this but we accept that it is strongly arguable, that there may be cases where one says the likely punishment is so serious that under one or other of these provisions there ought not to be extradition.
But when one looks at the converse and says, "I, the Minister, do not regard the nature of the offence as being trivial but it is true that there is likely to be a light sentence overseas", to say that that makes it too severe a punishment or unjust or oppressive is simply illogical.
KIRBY J: You say so, but the words in (c) "any other sufficient cause" could not be wider. So you trigger it off if there is a sufficient cause and then you have to ask whether or not, amongst those, the punishment of surrender would be too severe.
HAYNE J: Too severe compared with what? Is it a comparative exercise, Mr Solicitor?
MR BENNETT: Your Honour, it may be comparative in relation to the nature of the offence but it certainly is not comparative in relation to the likely sentence.
GLEESON CJ: Could a person who was being sought to be extradited to the United States to stand trial on racketeering charges which subject a person to penalties far more severe than our law would provide for offences that might lead to those charges, argue that that is too severe a punishment?
MR BENNETT: Your Honour, it would be more logical to argue it was unjust or oppressive. Too severe a punishment, probably not, because one is contrasting the severity of the extradition against something and the comparator, we submit, can only be the nature of the offence, not the likely punishment.
HAYNE J: I just do not understand what you say the comparison is against. You say the nature of the offence.
MR BENNETT: Yes, your Honour.
HAYNE J: What is it you mean by that?
MR BENNETT: Whether the Attorney-General considers that the offence is a very serious one or a very minor one.
HAYNE J: That is, the offence as committed by this offender, allegedly?
MR BENNETT: Yes, your Honour, yes.
KIRBY J: That is difficult to assert just as a matter of statutory construction, because (a), (b) and (c) stand above this and the nature of the offence is only one of the factors. Then you come to the general which is too severe a punishment to surrender.
MR BENNETT: Well, your Honour, the classic case of the too severe a punishment would be "the trivial nature of the offence". Having regard to the trivial nature of the - - -
KIRBY J: The words must apply to (a), (b) and (c), not just to (a). That is the point I am making.
MR BENNETT: Your Honour, they do not, in fact, because there is no way one can imagine a case if the accusation is not made in good faith or the interests of justice, that that would have the effect of making it "too severe a punishment" to extradite. That would have the effect of making it "unjust or oppressive", but it would not make it "too severe a punishment" to extradite. There should not be any punishment at all in that situation, no doubt.
KIRBY J: That may be so, but it would still have to work for (c).
MR BENNETT: I am sorry, your Honour?
KIRBY J: It still has to work for (c), "any other sufficient cause" which carry a multitude of sins.
MR BENNETT: Yes, and that is sufficient cause where it might be "too severe a punishment to surrender" might be the health of the person. It might be the situation in Majorca recently where a person says, "If I were forced to travel by plane, that would affect my emphysema". That sort of situation might make it too severe a punishment to extradite. Another example might be if the person had a relative who was dying or if the person claimed there was a risk of assassination in a foreign prison, or if the person says, "The conditions in the foreign prison where I would be kept waiting trial are too extremely adverse". There are many situations where it might be too severe a punishment to surrender the person.
The words are not totally apt because, of course, the surrender of the person is not a punishment, well, not meant to be, but the Act makes that assumption and treats it in that way and says, "Well, let us look at the reality." There is an element of in practice punishment if one is placed in irons and sent to a remote part of the world and the - - -
KIRBY J: Surely you look forward. You just do not look at the inconvenience of being bundled onto a plane. You look at the whole consequences of surrender, which include the punishment that lies at the end of it.
MR BENNETT: Well, most of those would fall under "unjust or oppressive" if it is too great, your Honour, but if one is looking at the triviality end to get the comparator, then we would submit logically the factor of light sentence overseas is not "other sufficient cause" because it is just logically irrelevant.
KIRBY J: Yes, but it may not be a trivial offence. I do not think that Mr Foster's offences are trivial by any stretch of the imagination but it may be that it is activated by "any other sufficient cause", namely, what he has already gone through, and then you have to ask: in such circumstances is it too severe a punishment? Your comparator is examining what, in fact, he would be likely to suffer in the United Kingdom, exactly as he puts to us.
MR BENNETT: Well, your Honour, we would submit not. May I put it this way. Suppose that one were satisfied, despite all the problems which I will come to in a moment, that it was likely that he would receive a bond in the United Kingdom or something corresponding to a bond for these offences in these circumstances, but that the Attorney-General, the Minister, took the view that the offences were serious and not trivial and, indeed, that it was appropriate that he be placed on a bond. Why would one say in that situation, "It's too severe a punishment to extradite him because he's only going to get a bond"?
KIRBY J: Because then the Minister has considered the matter. She has put it into her mind and said, "Notwithstanding the fact that the prison sentence is low, it's not too severe because, in this particular circumstance, it's appropriate that a person who cheats charities should undergo a second trial and stand his chances". But here, the Minister has declined even to consider that issue, except under triviality.
MR BENNETT: As your Honour will see, we do not concede that, but I will come to that. It is our submission that as a matter of logic it cannot affect the question whether it is too severe a punishment to surrender the person, what penalty is likely to be received? What is relevant to that is how seriously the Minister regards the nature of the offence and all other circumstances of the type I have referred to.
But that factor is, if anything, a factor in favour of, rather than against, extradition. One can say that for a number of reasons. A bond, of course, is not no penalty. A bond carries consequences. It has the effect that a person is less likely to offend again because of the additional sanction. That may be a desirable thing to be imposed on the person. There are all sorts of reasons why one would say - - -
GLEESON CJ: Depending on a person's propensities, a bond might be quite a considerable threat.
MR BENNETT: Precisely, your Honour, precisely. That leads me rather to the second aspect of this, which is the practicality of making the inquiry. My friend says all you have to do is ask the prosecuting authorities in the other country. But what meaningful reply is going to be given? One does not know if the person is going to plead guilty. One does not know what extent of mitigating circumstances will be alleged and accepted. One does not know to what extent, as here, the fact of charity work or the fact of rehabilitation will be accepted in the other country.
One does not know the precise extent to which aggravating circumstances may appear from the evidence. One does not know whether the particular sentencing judge is a judge who generally has a light touch or a heavy touch and the reality is, as we all know, that that may have a great effect on sentence.
KIRBY J: Yes, but Mr Sofronoff says we know all of these things and in ordinary circumstances people have to make predictions. That is the whole point of pleas of guilty. They have to have some idea of a range. And the Minister gets other information; the issue is whether or not, given that it can be another sufficient cause, given that you have to compare the punishment and severity to something, it is not appropriate to say, "Well, in future, bureaucrats will add this factor. We can't be certain, it's not sure, but this is a consideration. The range is this. Is it worth extraditing an Australian citizen for that given what he has already undergone?".
MR BENNETT: My friend says it is something the Minister must take into account, of course. But the point I am making is that the answer is necessarily going to be so vague. We all know that when an offence carries a penalty of X years under our system and, no doubt, the system in most Commonwealth countries, assuming the absence of a mandatory minimum, that a court looks at all the circumstances to see the range. Those circumstances are infinitely various and really are exceptionally hard to predict, especially where the only material available is the material supplied by the accused and then judged, on the way my friend wishes it to be done, by the prosecution.
So, what one is asking is to say to the prosecution, "Assuming, which you may not accept, that everything the accused says that he's going to put to the judge in mitigation is right, what do you think, based on your experience, is the likely range of sentence?". One is going to get something which in practice it is hard to see being of great reliability or value for the purpose of making any judgment, especially as, when one adds that to the factors I have just put about the general absence of relevance, or very, very limited relevance of shortness of sentence as opposed to length of it, it being too severe a punishment to surrender, when one adds that together it becomes quite impossible, we would submit, to construe the section as requiring the Minister to make that sort of inquiry.
We have pointed out, also, that the topic of sentence in the extradition country is dealt with by the definition of "extradition offence" which says carrying more "than 12 months" and that is amended in section 5 to an offence carrying more than "2 years". We have got the provisions about torture and the death penalty. So, those provisions are the ones that deal with the universe of sentence and they all deal with it in a totally objective way.
KIRBY J: What is that regulation, I am sorry? Is that mentioned in your submission?
MR BENNETT: Yes, but your Honour can see it is regulation 5 in the Extradition (Commonwealth Countries) Regulations and the sections we have listed in paragraph 1.2a of our submissions. So, all the references to likely sentence in the foreign country are to objective things. There is a reference to the "trivial nature of the offence". It would be surprising in that context if there was an implication about shortness of likely sentence. We have dealt in paragraph 1.2c with the history of the scheme and I do not propose to say more about that. These words do not appear in most of the other - I think in any of the other extradition schemes, certainly not in most of them. They appear in Canada in its extradition laws but not generally elsewhere.
There are two cases we have referred to in paragraph d. My friend has referred to Oskar's Case and I will not take your Honours back to that. It is a case where the House of Lords said in this context, one looks at one's own standards, not what is likely to happen in the foreign country. That was also said in a Canadian case. What happened was there is a Canadian book by Justice La Forest called "Extradition to and from Canada" written in 1961 and we have set out in full the quotation in paragraph d that:
(t)he question whether a man should be surrendered from Canada should depend primarily on the seriousness with which the crime is regarded here, not in the foreign country.
That is picked up in a case called Ex parte Bennett, which was included in our submissions, where Justice Grant cited it with approval, and in the third edition of the book the statement is repeated. Would your Honours make two small amendments to my submissions in paragraph d? Would your Honours note against the reference to the third edition that it is page 241 and would your Honours delete the words in parentheses "referring to the approval of the earlier edition"? I think that reference was implicit rather than explicit and those words should not appear and I apologise for that.
We would submit that represents very much the general approach taken towards extradition. Sentencing is a matter for the foreign country in the same way as guilt or innocence is a matter for the foreign country, the extraditing country, and it is contrary to the general approach one takes to extradition statutes that the court in the country from which the person is extradited should need to look at questions such as guilt or innocence or sentence.
HAYNE J: What is it looking at when it is invited to give attention to extradition itself constituting too severe a punishment?
MR BENNETT: Your Honour, primarily the fact of extradition, the travel, the travel in custody and so on, and the consequences of that which, no doubt, include period spent in custody in the foreign country, removal from sick relatives, damage to health.
KIRBY J: What about birching?
MR BENNETT: I am sorry, your Honour?
KIRBY J: The risk of birching?
MR BENNETT: That, your Honour, would probably come under the words "unjust" or "oppressive". It may be torture, of course, on one view. That would be a matter of which different views would be taken. The consideration would be under "unjust" or "oppressive" that, by reason of other sufficient cause, it would be unjust or oppressive to surrender the person.
KIRBY J: Is not the problem for you that, as Mr Sofronoff said, once you concede that you look at what may particular happen, birching, for example, as being available, that you really are in the realm of looking at what the punishment is likely to be.
MR BENNETT: Well, your Honour, there is a difference between looking at what the punishment is likely to be for the purpose of saying it is oppressive or unfair, or even, maybe - we do not concede this one - too severe a punishment to extradite a person to face it. It is quite different to say the triviality of what is likely to be done to the person is a factor against extradition although the offence is not regarded as trivial by the Minister for the purposes of (a). That is a very different type of consideration. I know my friend says, as of course he is entitled to, that, "Well, you just look at both ends of the scale". The point we make is that the ends of the scale are looked at for totally different purposes and a consideration that is relevant at one end of the scale is not relevant at the other end of the scale.
The second aspect of our submissions I can deal with very briefly. That it is not a consideration the Minister is bound to take into account even if it is a relevant consideration. I will not take your Honours back to Sean Investments v MacKellar and Peko-Wallsend. Your Honours are obviously familiar with those cases. But it must be something the Minister is bound to take into account and the implication will not be drawn unless it is found in the subject matter, scope and purpose of the Act, and merely making the submission does not convert something which the Minister may take into account into something the Minister must take into account and that follows from some words in Peko-Wallsend which we have cited in 2.3.
The third issue, the question of whether it was adequately dealt with in this case, I can deal with again very briefly. I do not need to take your Honours to the submissions made to the Minister. That my learned friend has done, but may I take your Honours to volume 2 and just linger a little longer than my learned friend did at what the Minister did. It is pages 331 to 333. Your Honours see that in 16:
Mr Foster states that his incarceration, particularly in maximum security prisons, since 1985 would be taken into account by the relevant UK sentencing judge, who is likely to consider that no further custodial sentence is warranted.
Then he deals with rehabilitation, and some evidence about that, and then there are some comments on that and on some matters concerning England which we are not concerned with. Then there is a reference in 21 to triviality and that is dealt with fully, and then the Minister says this:
However, if there is a possibility that an offence could be "trivialised" by the likely sentence (as opposed to the maximum possible sentence), we consider that it would not be reasonable in this case to assume that the sentence would be reduced. Even if a UK sentencing judge could take into account the amount of time Mr Foster spent in custody prior to sentencing and any evidence of rehabilitation there is no evidence to suggest a judge would do so here.
It goes on to give the reason, it does not stop there and just refuse to look at it. It says:
Much of the time Mr Foster has spent in custody.....has been as a result of him absconding from lawful custody -
and that may depend on the construction of some sections but it is not an irrelevant consideration.
KIRBY J: But is that correct? I thought that after the order has been made he must, subject to exceptional bail, which he would not in fact get, be kept in custody.
MR BENNETT: Well, your Honour, the sections my learned friend - - -
KIRBY J: We are not in the business of punishing. You are in the business of - - -
MR BENNETT: Well, your Honour, there are - yes, my friend took your Honours to those sections at the end. Yes, it is 26(5) and (6). Yes, 26(5) seems to deal with the period before the matter comes to court - well, no, paragraph (5) seems to generally say that in normal circumstances you are released, then paragraph (6) says:
Where the Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 2 months or since the person last made an application.....
(a) because to do so would have been dangerous to the life or.....health of the person; or
(b) for any other reasonable cause;
the Court shall not order that the person be released from custody.
It is not completely clear how far that is intended to go, it has not been analysed in this case as to the degree of application, but certainly that may well have been a factor and if one gets within that then he could not have been released.
But, certainly, here, there were two factors. There was firstly the earlier failure to answer bail and secondly, the proposition made in the balance of the paragraph that the time has been caused largely by his own litigational steps.
Now, what is said is his challenge to the issue of the section 16 notice, his opposition to extradition proceedings, his failure to answer bail in those proceedings including a period of two months as a fugitive in Australia, his appeal from the decision of the magistrate that he was extraditable, his opposition to making of a surrender decision. He is, of course, free to oppose extradition proceedings to the fullest extent available to him under the law. However, it is reasonable to conclude that a sentencing judge would not necessarily take into account additional time spent in custody or maximum security when the resolution of proceedings has been prolonged at his own instigation.
Now, that may be right or wrong. There is no appeal against that but that is a view the Minister is entitled to take and it certainly shows that the submission put to her was considered. The submission was because of the time spent in custody and because of other matters it is unlikely that the judge will impose a sentence. She says, "If the judge is going to take that into account there are these factors against it and I don't think the judge therefore would give weight to that".
GAUDRON J: But that can only be right if your submission 2 is correct, can it not, because what is being spoken about there is the making of an assumption? Mr Sofronoff's argument is that she was required to make inquiries.
MR BENNETT: Your Honour, the obligation to take into account a relevant consideration - - -
GAUDRON J: He says the relevant consideration is the likely maximum sentence for these offences.
MR BENNETT: Yes, and in relation to a country like England, it may be different if one is dealing with a civil law system or a totally different legal system, but in relation to a common law country with a similar tradition to Australia, in our respectful submission, the Minister is entitled to make the assumption rather like the assumption the courts make about foreign law.
GAUDRON J: But she has not made the assumption that the sentence will be reduced in this paragraph. What is being said is it is not reasonable to assume that it will be reduced.
MR BENNETT: That, in my respectful submission, is sufficient.
GAUDRON J: Well, it may be sufficient but that must depend on your succeeding on proposition 2.
MR BENNETT: No, your Honour. If the Court is against me on proposition 2 and takes the view that the Minister is bound to take into account the likelihood that there will be a - - -
GAUDRON J: No, the likely maximum sentence.
MR BENNETT: The likely maximum sentence.
GAUDRON J: That is the way Mr Sofronoff puts it.
MR BENNETT: Well, your Honour, the maximum on any objective view is always going to be no reduction for time served. The likely maximum - one then has to say: is it likely some credit, and if so how much credit, will be given for the time served in all the circumstances of this case?
That can be dealt with, in relation to a country like England, without making the inquiry, and that is what has been done here. It is reasonable to conclude that the sentencing judge would not necessarily take into account that when it is for those reasons. Then there is the reference to the other matter, the Outreach program, and so on, and the matter that he is free to make the submissions to the United Kingdom court. So, in my respectful submission, if there was any obligation it was satisfied. But at the end of the day, the real problem my learned friend has, we would submit, is in formulating the obligation.
His phrase was, as I noted it down, "the maximum likely penalty after a contested trial, if there is no contrition shown and no restitution made". Now, we simply ask rhetorically, why would one take that group of assumptions? Why would not one, if one is laying down a general rule to be applied in all cases as he must be, have something wider or something narrower? Why does he ignore the relevance of rehabilitation, the question of the matters put up by the person concerned? Why does he not take into account, for example, the current sentencing climate? Is there to be a different result if there has just been a law and order election in England where higher sentencing has been a matter very much in the public agenda and in the minds of judges?
GLEESON CJ: Or if he got into that area, why would you limit your consideration to custodial sentences?
MR BENNETT: Precisely, your Honour.
GLEESON CJ: What about fines? What about orders for restitution? What about suspended sentences or bonds? Putting this person on terms that would subject him to substantial risk if he were to misbehave in the future might not be a matter to be taken lightly.
MR BENNETT: Precisely, your Honour, and it may well be the conditions of the bond might be such that they could only be performed in England.
KIRBY J: That may itself be too severe a punishment if the man, say, has a wife, children, family out here. I mean, the mere fact that punishment can take different forms does not prevent you saying whether it is too severe in the particular case.
MR BENNETT: Well, your Honour, my learned friend has not suggested - it is no part of his case here that it is too severe a punishment that he be required to remain in England for the period of a bond.
KIRBY J: No, because he does not deal with it. You are putting up a proposition that the fact that there may be other punishments makes it clear that this is not a comparison that one takes under the statute. We have to consider this statutory scheme against the range of possibilities, not just this particular case.
MR BENNETT: Of course one does, your Honour. We accept that but the ultimate submission has to be over and above the submissions on the construction that the type of case where one would say, "Because the penalty is likely to be at the bottom end of the scale, although not certain to be, therefore, it is too severe a punishment to extradite," is so hard to imagine and so rare that to suggest that that is something that must be taken into account in every case really distorts the process.
May I take an example of a case which perhaps illustrates it most clearly because it puts the extremes. Suppose one has a foreign country where a very lenient view is taken in relation to drugs, as is said about some countries in Europe, and suppose there is an application by that country to extradite someone for an offence of trafficking in a small amount of heroin, something we would take fairly seriously, and which would normally involve a custodial sentence in Australia. Is the person not to be extradited, or is it reasonable that the Minister would exercise a discretion not to extradite on the basis that, although the Minister regards the offence seriously, although Australia regards the offence seriously, and although the foreign country has sought extradition, and although the penalty on the books is more than two years, the practice in that country is that for a small trafficking offence in heroin, one gets a bond or a small fine or some low penalty?
The answer has to be, why should the Minister say that? Why should the Minister say it is too severe a punishment to extradite merely because you may get a low sentence? At the end of the day, that is the logical problem with the comparator my friend puts up. It is not a logical comparator, unlike the nature of the offence, the Minister's view of the seriousness of it and all the factors concerned with difficulties of travel, and maybe even other adjectival factors of the type I have mentioned; and one might add to them the cost of representation at a trial in a foreign country, the difficulty of obtaining representation, those matters may be relevant.
But it cannot be too severe a punishment to extradite for an offence regarded as serious here merely because it is likely, possible or highly probable that the maximum is low and that, we submit, is the ultimate reason why the argument must fail. May it please the Court. I should say both parties are indebted to your Honours for sitting to this time of night.
GLEESON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Sofronoff.
MR SOFRONOFF: Thank you, your Honours. I have only two brief matters by way of reply. Our learned friend made a submission concerning the whole universe of triviality being encapsulated in the reference to trivial offences in regulation 7(1)(a).
We would answer that submission in this way. If it is correct to say, as it is, that there may be cases where because an offence is trivial it would be too oppressive or too severe a punishment to surrender a person, that may be because the triviality of the offence would render the punishment so lenient as to render it oppressive to compel an extraditable person to go through the whole process. Once one accepts that such a conclusion can be drawn in any case, then it could be drawn in subsection (c) as well in the appropriate case.
The second matter, your Honours, is our learned friend raised the question of the practicality of an inquiry and made the submission that one does not know the existence of mitigating factors or the leniency of a judge in matters of that kind and that is true. The only result of that, though, would be the indication that a minister would receive would err on the high side and it would be that that the comparison would be drawn against.
GLEESON CJ: Mr Sofronoff, is it right to say that the argument that was addressed on behalf of your client to the Minister about the question of punishment concentrated attention entirely upon the prospects of a custodial sentence?
MR SOFRONOFF: That is a fair reading of it, your Honour.
GLEESON CJ: Would the Minister have been entitled to say, "This argument proceeds upon the assumption that the only relevant kind of sentence that might be imposed in the United Kingdom is a custodial sentence and that there is no reason to even address the possibility of any other type of sentence. That assumption is so manifestly incorrect that I do not intend to consider the argument further"?
MR SOFRONOFF: No, your Honour, because if the Minister were made aware of, say, a bond, that your Honour put to my learned friend - - -
GLEESON CJ: What about a bond condition on an order for restitution?
MR SOFRONOFF: Anything of that nature, then she may well conclude that it would not be oppressive to surrender him.
GLEESON CJ: But that was a possibility that was not even addressed in the submissions that were put. The submissions that were put proceeded upon the assumption, which I am suggesting to you is an erroneous assumption, that the only possibly relevant form of sentence that might be imposed was a custodial sentence.
MR SOFRONOFF: Your Honour, even if the assumption were erroneous, the contention that was raised was that, in the event that he is not sentenced to a term of imprisonment it would be oppressive, it would be a matter for her then to conclude, if it be the case on information received, that some other form of penalty short of imprisonment would, nevertheless, satisfy her that the surrender would not be oppressive. It would not, in our submission, obviate the need to know what the likely penalty would be. Those are our submissions, your Honours.
GLEESON CJ: Thank you, Mr Sofronoff. We will reserve our decision in this matter.
AT 5.00 PM THE MATTER WAS ADJOURNED
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