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Nettheim, Garth --- "Binge & Ors v Bennett & Anor: Goondiwindi 'riot' - Criminal Code Act of 1899 (Qld) - order for return for trial from NSW to Queensland - whether 'unjust or oppressive'? - admissibility of evidence - Service and Execution of Process Act 1901 (Cth), s18(6)(c)" [ 1988] AboriginalLawB 39 ; (1988) 1(33) Aboriginal Law Bulletin 9

Binge & Ors v Bennett & Anor

Goondiwindi "riot" - Criminal Code Act of 1899 (Qld) - order for return for trial from NSW to Queensland - whether "unjust or oppressive"? - admissibility of evidence - Service and Execution of Process Act 1901 (Cth), s18(6)(c).

Binge & Ors v Bennett & Anor

NSW Court of Appeal (Kirby P, Mahoney and McHugh JJA)

2 June 1988

Casenote by Garth Nettheim

On 7 April 1987 at Moree (NSW) Local Court, the magistrate, Mr Bone, ordered the extradition of Mr Binge and thirteen other Aboriginal people from Toomelah/Boggabilla to Goondiwindi (Qld) on a charge of riot under the Queensland Criminal Code, s63. The extradition order was made under the Service and Execution of Process Act 1901 (Cth).

A stay was granted and application was made undersl9 of the Act forreview of the order by way of rehearing. The application came before Campbell J in the Supreme Court in Sydney on 23 and 24 November 1987. The applicants tendered numerous affidavits concerning conditions in Goondiwindi, the Queensland criminal justice system, the absence of Aboriginal jurors in criminal trials in Queensland and conditions in Queensland gaols and watchhouses. The evidence was tendered in support of submissions under sl8(6)(c) of the Act that their extradition would be "unjust or oppressive". None of the deponents were cross-examined, and no rebutting evidence was called by the respondents.

Campbell J gave his decision on 18 December 1987, ordering that the applicants be returned to Queensland for trial. He made no findings of fact on the evidentiary material, which he held to be inadmissible.

A further stay was granted to allow an expedited appeal to the NSW Court of Appeal. The appeal was heard on 1 and 2 June 1988 when the appeal was upheld.

Argument before the Court of Appeal turned on two issues. The first argument questioned the formal validity of the warrant, issued by a Queensland JP, on the basis that it failed to include specific reference to an essential element of the alleged offence, namely, the "intent to carry out some common purpose". The Court of Appeal held that even if such an express averment was essential to the validity of an indictment, it did not need to appear in the warrant for extradition provided that the warrant was in accordance (as it was) with the General Rules made by the Judges of the Queensland SupremeCourt under the authority conferred in s707 of the Queensland Criminal Code.

The second and more substantial ground for appeal turned on ss18 and 19 of the Service and Execution of Process Act, 1901 (Cth). Section 18(6), inter alia, authorises a magistrate not to order the return of defendants for trial in another state if it appears to him or her that "for any reason, it would be unjust or oppressive" to do so. Section 19 permits review of a magistrate's extradition order by a Supreme Court judge, such review is to be by way of rehearing, and additional evidence may be given. Kirby P noted that further appeal to the Court of Appeal is also by way of rehearing, and that the criteria in s l8 govern review of an order at both levels.

Campbell J had felt constrained by prior NSW decisions to reject the evidence tendered to establish that the return of the defendants for trial in Queensland would be "unjust or oppressive". Kirby P stressed that the burden of establishing a case against return is on the defendants, and that the burden is considerably heavier for resisting return from one Australian jurisdiction to another than in the case of extradition to a foreign state. Nonetheless, unless s18(6)(c) were to be deprived of meaning, evidence must be admissible to support argument that it would be "unjust or oppressive" to return an accused person to another State. Accordingly, "the claimant who asserts that it is so on his or her particular case must be entitled to prove, by relevant admissible evidence, the facts from which he or she seeks to have the Courtderive that conclusion". Of the material put by the appellants beforeCampbell J, some at least was admissible, arguably relevant and "far from 'inherently improbable"'.

There was a further complication in that the respondents had not cross-examined witnesses and had not submitted evidence to rebut the argument that return of the defendants toQueensland would be unjust or oppressive. They sought to produce such evidence before the Court of Appeal itself. KirbyP stressed the stringent requirements set by the Court of Appeal and by the High Court for the admission of fresh evidence at the appellate level. The respondents had relied, before Campbell J, on argument that the defendants' evidence was inadmissible as such, argument which the judge had accepted, though only at the end of the proceedings. The proposition was not only incorrect but a ruling to that effect ought to have been given at an earlier stage so that the respondents would have had the opportunity to produce rebutting evidence in thoseproceedings.

Kirby P declined to accept the further evidence tendered by the respondents,upheld the appeal, and set aside Campbell J's extradition order, but he also ordered that the case be returned to the Common Law Division for determination in the light of the evidence tendered by both sides.

Mahoney JA in a separatejudgement agreed generally with Kirby P and with the orders he proposed. He added some interesting observations: "If, in fact, the position be that a fair trial cannot be had in Goondiwindi (a matter on which express no opinion) it does not follow that a fair trial of the appellants cannot be had at an appropriate place elsewhere in Queensland. It would be surprising if it could not. These are matters to be dealt with by the judge dealing with the matter."

Mahoney JA also said: "If the powers of prosecutor to challenge jurors were always exercised so as to order Aborigines to stand aside for reasons which went simply to race, prima facie that would be a wrong exercise of the power given to him."

McHugh JA agreed that evidence is admissible in an application under s l8(6) of the Act based on arguments about fair trial or prison conditions. Insofar as the prior NSW decisions of Walker v Duncan [1975] 1 NSWLR 106 and Levy v Kemp (19 February 1987, unreported) decide to the contrary, they should be overruled. He disagreed with the majority by holding that the respondent should not be permitted to call further evidence,not only in the Court of Appeal itself, but also on return to the Common Law Division.

K Horler QC appeared for the appellants, instructed by Ms Margaret Herps, Aboriginal Legal Service Ltd.

M F Gray QC, B Donovan, P A Johnson appeared for the first respondent instructed by S Kavanagh, State Crown Solicitor's Office.