Woss v. Jacobsen

60 ALR 313

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(Judgment by: Spender J)

Re: Ronald Warren Woss
And: Johannes Jacobsen and Con Zempilas

Court:

Judges: Toohey J
Davies J

Spender J

Subject References:
Administrative Law

Judgment date: 5 June 1985

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Judgment by:
Spender J

This is an appeal from a judgment of a single judge of this court given on 30 October, 1984 dismissing the appellant's application to review a decision made by Mr. Con Zempilas, the second respondent, on 27 July 1984 in the Court of Petty Sessions at Perth in the State of Western Australia, ordering the return of the appellant to the State of Queensland pursuant to s.18 of the Service and Execution of Process Act 1901, hereinafter called "the Act".

Warrants for the apprehension of the appellant on a total of seven charges of conspiracy to defraud the Commonwealth contrary to s.86(1)(e) of the Crimes Act 1914 were issued by Clive Evans, a Stipendiary Magistrate and Justice of the Peace in the State of Queensland, at Brisbane in the State of Queensland. In respect of two of those warrants, which had been endorsed under s.18 of the Act for execution in Western Australia, the second respondent ordered the return of the appellant to Queensland. One of the two warrants with which this appeal is concerned (the other was to similar effect) was in these terms:-

Section 18(1) of the Act provides:

"Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section 16 or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act authorizing its execution in that other State or part of the Commonwealth."

Before the learned primary judge, the applicant had relied on two grounds. The first was that there was no jurisdiction in the Western Australian magistrate to act pursuant to s.18 of the Act. The second was that he had improperly exercised the power conferred upon him by that section. The essence of the second submission was that it was wholly unreasonable for him to have decided to order the return of the applicant to Queensland, relying on para.5(1)(e) and 5(2)(g) of the Administrative Decisions (Judicial Review) Act,("the ADJR Act").

Counsel for the respondent before the primary judge denied that there was no jurisdiction and submitted that there was no basis for saying the magistrate's exercise of the power was so unreasonable that no reasonable person could have exercised it. In addition, he relied upon the provisions of s.10 of the ADJR Act, submitting that the primary judge in the exercise of his discretion ought to refuse to entertain the application on the basis that adequate provision was made pursuant to ss.19(3) of the Act for the Supreme Court of Western Australia to review the decision of the second respondent.

Sub-paragraph 10(2)(b)(ii) of the A.D.J.R. Act provides:-

"Notwithstanding sub-section (1)-

. . .

(b)

the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason-

. . .

(ii)

that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure."

The learned primary judge concluded that there was jurisdiction in the Western Australian magistrate to act pursuant to s.18 of the Act. He held that the jurisdiction conferred on the Supreme Court of Western Australia by s.19(3) of the Act was not ousted by s.9 of the ADJR Act, and further that, as a matter of discretion, it would be inappropriate for the Federal Court to deal with the matter, even though it had jurisdiction to do so. In his judgment, the case "fell squarely within the provisions of sub para.10(2)(b)(ii) of the ADJR Act." He ordered that the application be dismissed.

The decision of the learned primary judge depended on his findings:-

(i)

that the jurisdiction to review the decision of the second respondent given to the Supreme Court of Western Australia by s.19(3) of the Act was not ousted by s.9 of the ADJR Act; and

(ii)

in the exercise of his discretion he would, pursuant to s.10(2)(b)(ii) of the ADJR Act decline to entertain the application.

If no error is shown by his Honour in reaching those findings, the appeal should be dismissed.

In addition, however, his Honour ruled on a submission that the Western Australian magistrate had no jurisdiction pursuant to s.18 of the Act. He rejected this submission. Had he accepted it, it would have disposed of the application. It will be necessary to return to this aspect of his judgment later.

The grounds of appeal as originally formulated were:

(a)

that his Honour erred in law in finding that the provisions of Section 18 of the Service and Execution of Process Act 1901 have application in relation to a warrant of apprehension alleging the commission of an offence against Section 86(1)(e) of the Crimes Act 1914;

(b)

that His Honour erred in law in declining to exercise the jurisdiction of this Honourable Court under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 having done so upon the erroneous basis that the Supreme Court of Western Australia has jurisdiction to review the decision of the Second Respondent.

The first ground as formulated was the same as had been argued unsuccessfully before the primary judge, it being suggested that there was no jurisdiction because the respective warrants had not been issued "in accordance with a Law of the State". The second ground as formulated called into question the decision by the learned primary judge that the Supreme Court of Western Australia had jurisdiction to review the decision of the second respondent.

In the course of the appeal, it was sought to argue two further grounds. The way in which these amendments were expressed had the effect of transposing the first ground as formulated into a ground which called into question the application of s.18 of the Act to offences "said to have been committed in more than one state", leaving the second of the grounds as amended to deal with the jurisdictional argument based on the provision in s.18 of the Act "in accordance with the law of a State." A further ground was sought to be taken, viz. that the learned primary judge, having entered on the question of whether the magistrate's order was beyond jurisdiction, erred in declining to deal with the other ground of review.

The additional ground sought to be argued, based on the aspect of the offence being "said to have been committed in more than one state", was not taken before either the second respondent or the learned trial judge. Consistent with the principles on which a ground not previously raised below may be argued on appeal, this ground should not be allowed; Adams v. Chas. S. Watson Pty. Ltd. (1938) 60 C.L.R. 545 AT 548; Legione v. Hateley (1983) 57 A.L.J.R. 292 AT 309.

In my respectful opinion, the learned primary judge was correct in concluding that the jurisdiction of the Supreme Court of Western Australia to entertain an appeal from the decision of the second respondent was not excluded by s.9 of the ADJR Act. I have had the advantage of reading the reasons of my brother, Mr. Justice Davies, and I am in complete agreement with them in this respect.

Next, it was said that his Honour, having embarked on one of the bases on which a review was sought, ought properly to have considered the other basis relied upon. In my opinion the Court's powers in the exercise of the discretion conferred by sub-paragraph 10(2)(b)(ii) of the ADJR Act are not limited by the discretion having to be exercised at any particular point in the course of the application for an order of review. If the exercise of such a discretion is a live question, it would in many cases be appropriate to consider it first; and if, in the exercise of the discretion, the decision is made that it is more appropriate for the decision to be reviewed other than under the ADJR Act, to leave to that review all questions involved in it. Apart from other considerations, to do otherwise may raise, for example, very real questions of estoppel.

The learned primary judge did not adopt that course but, at the invitation of the present appellant, was asked to determine whether the second respondent had jurisdiction under the Act to make the order that he did. Had the learned primary judge concluded as the applicant submitted, that would have disposed of the matter. The appellant cannot in my view now be heard to complain that the judge, having consented to determine that question on his invitation, but determining it adversely to him, declined to enquire into the validity of the broader ground on which it was sought to have the decision reviewed. The discretion under sub-paragraph 10(2)(b) remains able to be exercised throughout the hearing of the application for an order of review.

That basis of attacking the discretion being without substance, no other material exists on which that exercise can validly be impugned.

In the light of the decision under appeal and on analysis of the findings necessary to support it, the conclusions I have expressed above are sufficient to dispose of the appeal.

The submission for the appellant, that the warrants in this case were not issued, within the meaning of s.18(1) of the Act, "in accordance with the law of a State", was the subject of argument and decision by the learned primary judge and the subject of extensive argument on the appeal.

In view of the way in which these proceedings have been conducted and the wider ramifications the point involves, I should express my view of it.

I accept the correctness of this submission. In my opinion the Service and Execution of Process Act was not and is not concerned with the enforcement of Commonwealth laws. To force it to serve in that capacity is to ignore its history and distort the meaning of its provisions.

Section 51(xxiv) of the Constitution of the Commonwealth of Australia provides that the Parliament shall have power to make laws . . . with respect to-

"(xxiv)

the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States."

Quick & Garran "Commentaries on the Constitution" at p.613 et seq. deal with this grant of power against the background of the restrictions imposed on colonial legislatures because of territorial limitations.

At paragraph 206, dealing with "service", they commented

"The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth. With reference to the service, beyond the limits of a colony, of civil process issued within a colony, the constitutionality of laws passed by Colonial legislatures authorising this to be done has often been questioned."

And at 616,

"Under this sub-section of the Constitution a most important power is conferred on the Federal Parliament. It will enable that Parliament to provide procedure for the service, throughout the Commonwealth, of the civil process of the courts of the States, such as writs, summonses, notices of legal applications issued in and by the courts of the States. This includes the service of the civil process of the inferior as well as the superior courts of the States; so that it will be as competent to provide for the service in one State of a summons issued by a local court or a court of petty sessions in another State, as for the service of Supreme Court writs."

In paragraph 208, dealing with "criminal process", they said-

"Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz., the transfer of persons charged with crime from one colony to another. This disability is found on the territorial limitations to which the Colonial legislatures are restricted. . . .

. . . In Ray v. MacMacken (1875) 1 V.L.R.(L) 274, it was decided that the power of extradition, from one part of the British dominions to another, was not inherent in the legislature of any colony, but required the sanction of the Imperial Parliament; that a Colonial legislature may authorise the exclusion from its territory of a person charged with having committed an offence in another colony, and it may order his punishment unless he leaves, but it cannot authorise the sending him in custody out of its territory into another colony."

And at 619 they said-

"The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what now can only be done under the authority of the Imperial Fugitives Offenders Act, and to authorise the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. . . "

It is not inappropriate to note the provisions of s.15 of the Federal Council of Australasia Act 1885, which provided-

"Saving Her Majesty's prerogative, and subject to the provisions herein contained with respect to the operation of this Act, the Council shall have legislative authority in respect to the several matters following:-

(d)

The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued:

(e)

The enforcement of judgments of courts of law of any colony beyond the limits of the colony:

(f)

The enforcement of criminal process beyond the limits of the colony in which it is issued, and the extradition of offenders (including deserters of wives and children, and deserters from the Imperial or Colonial naval or military forces)."

The purpose of extradition is to enable the transfer of a person who is in a locality, the courts of which do not have jurisdiction to try him with respect to a particular offence, from that locality to a locality the courts of which do have jurisdiction to try him for that offence. The jurisdiction of State Courts, of course, is limited to the territory over which the States have sovereignty, marginally enlarged by defined extra-territorial operation. A Western Australian Court, for example, does not, in respect of an offence against Queensland law, have jurisdiction to try a person alleged to have committed such an offence. For this reason, a procedure akin to extradition was necessary so as to enable the criminal process of a State to be enforced.

Those considerations it seems to me, are not applicable when considering the enforcement of Commonwealth laws, the application of which does not stop at State boundaries.

The Service and Execution of Process Act was passed as No.11 of 1901 and assented to on 16 October, 1901 . Its title was "An Act to provide for the Service and Execution throughout the Commonwealth of the Civil and Criminal Process and the Judgments of the Courts of the States and of other parts of the Commonwealth, and for other purposes connected therewith". The title has been amended by No.48 of 1953 and No.216 of 1973, so that it now reads "An Act to provide for the Service and Execution throughout the Commonwealth and the Territories of the Civil and Criminal Process and the Judgments of the Courts of the States and of the Territories, and for other purposes connected therewith".

I note that the High Court of Australia and the Federal Court of Australia are not Courts such as are referred to therein.

Prior to the passing of the Service and Execution of Process Act, the Customs Act No.6 of 1901 had been passed. That Act created indictable offences (see for example ss.231 and 232). It also created many offences in respect of which pecuniary penalties were imposed. Part XIV of the Act, headed "Customs Prosecutions", provided a means by which Customs Prosecutions might be instituted and how those prosecutions might be conducted. Section 247 provided that every Customs prosecution in the High Court of Australia or the Supreme Court of any State may be commenced, prosecuted and proceeded with in accordance with any rules of practice established by the Court for Crown suits in revenue matters or in accordance with the usual practice or procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge. Section 248 provided that, subject to the provisions of the Act, the provisions of the law relating to summary proceedings before Justices in force in the State where the proceedings are instituted shall apply to all Customs Prosecutions before a Court of summary jurisdiction in such State. The Excise Act No.9 of 1901, similarly created offences, both indictable and involving pecuniary penalties, and in Part XI, "Excise Prosecutions", dealt with the institution and prosecution of Excise Prosecutions in a similar manner to that which had been adopted for Customs Prosecutions.

Then, by No.14 of 1901, the Punishment of Offences Act, assented to on 17 December, 1901 , the Parliament made provision for "the Punishment of Offences against the Laws of the Commonwealth." It provided in s.1 that the Act would cease to have effect upon the establishment of the High Court. Section 2 dealt with the application of State Laws. It provided-

"The laws of each State respecting the arrest and custody of offenders, and the procedure for their summary conviction or for their examination and commitment for trial on indictment or information and for holding accused persons to bail, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State or whose trial for offences committed elsewhere may lawfully be held therein."

And the jurisdiction of State Courts was provided for in section 3, which provided-

"The several courts and magistrates of each State exercising jurisdiction with respect to the summary conviction, or examination and commitment for trial, or trial upon indictment or information, of offenders against the laws of the State, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within that State, or who may lawfully be tried within that State for offences committed elsewhere."

By Act No.6 of 1903, the Parliament enacted the Judiciary Act, whose title was "An Act to make provision for the exercise of the Judicial Power of the Commonwealth". This Act was assented to on 25 August, 1903. It established the High Court and thereupon the Punishment of Offences Act 1901 ceased to have effect.

Sections 68 (1) and (2) substantially reproduced the provisions of ss.2 and 3 of the Punishment of Offences Act 1901.

Section 85E of the Crimes Act 1914 was inserted by Act No.84 of 1960 and was repealed by the Crimes Amendment Act 1982. Subsection 1 of s.85E, inter alia, invested the several courts of the States with federal jurisdiction with respect to offences against the Crimes Act; sub-section (2) provided that that jurisdiction was invested within the limits, (other than limits having effect by reference to the places at which offences are committed) of their several jurisdictions whether those limits were as to subject matter or otherwise; sub-section (4) provided that the trial on indictment of an offence against the Crimes Act not being an offence committed within a State may be held in any State or Territory, and sub-section (5) provided, inter alia, that, subject to the Crimes Act, the laws of a State with respect to the arrest and custody of offenders or persons charged with offences and for holding accused persons to bail applied, so far as they were applicable to a person who was charged in that State with an offence against the Act.

Section 68 of the Judiciary Act 1903 was substantially amended by the State Law (Miscellaneous Provisions) Act of 1983. In the second reading speech in respect of those amendments, the then Attorney-General, incorporated a supplementary statement explaining the changes to the various Acts which were to be made by the Bill and in relation to the Judiciary Act said, in part,-

"Sub-section 85E(2) of the Crimes Act 1914, which was repealed by the Crimes Amendment Act 1982, enabled State and Territory Courts to deal with offences against the Crimes Act where such offences were committed in another State or Territory. Sub-section 85E(2) was repealed in the mistaken belief that it duplicated sub-section 68(5) of the Judiciary Act; however, the latter provision applies only in relation to offences committed elsewhere than in a State or Territory."

Section 68 of the Judiciary Act now relevantly provides:-

"(1)

The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for-

. . .

(b)

their examination and commitment for trial on indictment; and

(c)

their trial and conviction on indictment; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2)

The several Courts of a State or Territory exercising jurisdiction with respect to-

(a)

the summary conviction; or

(b)

the examination and commitment for trial on indictment; or

(c)

the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."

. . .

(5)

"Subject to sub-section (5A)-

(a)

the jurisdiction conferred on a court of a State or Territory by sub-section (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth; and

(b)

the jurisdiction conferred on a court of a State or Territory by virtue of sub-section (7) in relation to the conviction and sentencing of persons charged with offences against the laws of the Commonwealth in accordance with a provision of the law of that State or Territory of the kind referred to in sub-section (7),

is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.

(5A)

A court of a State on which jurisdiction in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth is conferred by sub-section (2) may, where it is satisfied that it is appropriate to do so, having regard to all the circumstances, including the public interest, decline to exercise that jurisdiction in relation to an offence against a law of the Commonwealth committed in another State.

(5B)

In sub-section (5A), 'State' includes Territory.

(5C)

The jurisdiction conferred on a court of a State or Territory by sub-section (2) in relation to-

(a)

the examination and commitment for trial on indictment; and

(b)

the trial and conviction on indictment, of persons charged with offences against the laws of the Commonwealth, being offences committed elsewhere than in a State or Territory (including offences in, over or under any area of the seas that is not part of a State or Territory), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory . . . "

Section 80 of the Constitution provides that-

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

Sections 70 and 70A of the Judiciary Act provide-

"70.

When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein.

70A.

The trial on indictment of an offence against a law of the Commonwealth not committed within any State and not being an offence to which section 70 applies may be held in any State or Territory."

The learned primary judge noted that none of s.80, s.70 or s.70A of the Judiciary Act had direct relevance in the matter because they relate to the trial of offences and not to the arrest of offenders or their committal for trial. The nature of the offence alleged in this case is such that the trial on indictment of that offence may be held in any State or Territory.

It can be seen that the jurisdiction of State courts in respect of many Commonwealth offences is by s.68 of the Judiciary Act unfettered by the shackles of locality restrictions which restrict them in relation to State offences.

In this particular case, the offence is alleged to have been committed elsewhere than in a State or Territory and so, pursuant to paragraph 68(5C) of the Judiciary Act, the jurisdiction conferred on a court of a State in respect of the examination and commitment for trial on indictment in respect of a person charged with such an offence is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State.

If, in such a case, the Court has jurisdiction throughout the Commonwealth, "extradition" of a person in Western Australia to Queensland seems to me to be wholly inappropriate.

The powers of arrest are to be found in the application of s.68(1) of the Judiciary Act.

In my opinion the warrants in this case were not issued within the meaning of s.18(1) of the Service and Execution of Process Act "in accordance with the law of a State". The warrants owe the force they have solely to s.68(1) of the Judiciary Act, because that sub-section "picks up" the provisions of s.57 of the Justices Act of Queensland, being a provision of a State law, applicable in its terms only to offences against State law and applies that provision as Commonwealth law to offences against Commonwealth law. I accept the submission that the warrants were issued in accordance with the law of the Commonwealth. Section 68 provides for the process by which Commonwealth law is created by reference to otherwise inapplicable provisions of State law.

This approach, in my view, is consistent with authority. Many of the relevant authorities are collected in the judgment of the Full Court of the Federal Court in Lamb v. Moss (1983) 49 A.L.R. 533 at 560-1. The Court was there concerned with s.68(2) of the Judiciary Act, and most of the authorities are concerned with the operation of that sub-section; in my view, they are of assistance in the present matter.

While on this question, I respectfully differ from the conclusion to which the learned primary judge arrived, for the reasons earlier advanced, the appeal should be dismissed.