A prosecution which is an abuse of
process is to be stayed. This will be only in an extreme
or singular case because it is only in such a case that
nothing that a trial judge can do in the conduct of the
trial can relieve against its unfair consequences; there
is no definitive category of extreme cases in which a
permanent stay of criminal proceedings will be ordered: Dupas v R[2010]
HCA 20, (2010) 241 CLR 237 at 243. Some of the categories
that have arisen for consideration in particular cases
are set out below.
Prolonged delay usually not an abuse: R v Edwards
[2009] HCA 20, (2009) 83 ALJR 717; Jago v District Court[1989] HCA 46, (1989) 168 CLR 23; R v
Clarkson [1987] VR 962; R v Boehm [1990] VR
494; Edebone v Allen [1991] 2 VR 659.
Improper motive: Very strong evidence of ulterior purpose
would be required: Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509.
Indictment on identical or similar charges to those which
have been subject of Nolle Prosequi might be an abuse in
some circumstances: R v Swingler [1996] 1 VR 257.
A hearing of charges alleging conduct where the court had
previously granted a permanent stay of other charges
alleging the same conduct: Walton v Gardiner [1992] HCA 12, (1992) 177 CLR 378.
Proceeding upon a count held by the trial judge
duplicitous in sense that it alleged two different
offences defined by law: R v His Honour Judge
Hassett; ex parte DPP (1994) 76 A Crim R 19.
Proceeding upon lesser offence to avoid time bar:Saraswati v R[1991] HCA 21, (1991) 172 CLR 1.
Where there is in existence an extradition treaty which
is knowingly circumvented by the prosecuting authorities
(principle of speciality): R v Phong
[2005] VSCA 149, (2005) 12 VR 17.
Where an offence or an element of it has been procured by
unlawful conduct on the part of the law enforcement
officers: Ridgeway v R[1995] HCA 66, (1995) 184 CLR 19.
Entrapment amounting to an affront to the public
conscience: mentioned in R v Sahin[2000] VSCA 145, (2000) 115 A Crim R 413.
Conviction which would be inconsistent with an acquittal
already recorded of an accused in another case: R v
Catalano (1992) 61 A Crim R 323.
Proceeding upon unsupportable case: R v Smith
[1995] 1 VR 10.
Proceeding where inability for defence cross-examination
of important witness: R v NRC (No 2)
[2001] VSCA 210.
Where the Crown had presents an accused for trial on
charges in respect of which he had previously been
granted an immunity from prosecution: R v Georgiadis
[1984] VR 1030.
There are cases, decided either way, in which the
destruction of evidence has been relied upon as the basis
for an application for a permanent stay: R v Edwards[2009]
HCA 20, (2009) 83 ALJR 717; El Bayeh v R[2011] VSCA 44; Aydin v R[2010] VSCA 190; Wells v R
[2010] VSCA 100.
> Admissions
version
1 October 2010
EXTENSIVE STATUTORY PROVISIONS
IN VICTORIA Crimes Act sections
464-464J; twin premises of being in custody and
suspected: R v Alexander [1994] 2 VR 249.
EXCLUSION FROM EVIDENCE OF ADMISSIONS Inadmissibility of admissions influenced by
violence and certain other conduct. Evidence of an
admission is not admissible unless the court is satisfied
that the admission, and the making of the admission, were
not influenced by - (a) violent, oppressive, inhuman or
degrading conduct, whether towards the person who made
the admission or towards another person; or (b) a threat
of conduct of that kind: Evidence Act s.84. Inadmissibility of admissions to
investigating official unless the circumstances in which
the admission was made were such as to make it unlikely
that the truth of the admission was adversely affected:
Evidence Act s.85. Exclusion of improperly or illegally obtained
evidence: Evidence Act s.138 has
provisions specifically dealing with admissions made
during or in consequence of questioning (and evidence
obtained in consequence of the admission). Breach of Crimes Act s.464C
(right to communicate with friend, relative and legal
practitioner); DPP v MD
[2010] VSCA 233. R v Swaffield[1998] HCA 1, (1998) 192 CLR 159; R v Thomas
[2006] VSCA 165. Exclusion for unfair prejudice: Evidence Act s.137.
This is a rule not confined to confessional evidence.
EXCLUSION FROM EVIDENCE OF PARTS OF AN INTERVIEW In
practice, entire exclusion is uncommon, but exclusion of
portions is common, and often by agreement with
prosecution. There are many possible reasons, some being
irrelevance (either from outset or by intervening
circumstances), isolated prejudicial answers or
objectionable questioning, legitimate invoking of right
to silence, prolixity.
NEED FOR AUDIO RECORDING AND CONSEQUENCES OF BREACH Crimes Act s.464H; R
v Heaney [1992] 2 VR 531. The requirement where it
arises is for audio-recording. Where separate periods of
questioning, a recorded period within 464H (1)(c) is
admissible: Heatherington v R [1994] HCA 19, (1994) 179 CLR 370; Pollard v R[1992]
HCA 69,(1992) 176 CLR 177. Where single period of
questioning partially recorded, that portion is
admissible if it is within 464H (1)(c): Vu v Randoe,
Supreme Court (Hedigan J.) 26 March 1996. The discretion
under s.464H(2) to rule admissible: R v Nicoletti
[2006] VSCA 175, (2006) 164 A Crim R 81. Section 464H
inapplicable to overheard admission: R v Schaeffer
[2005] VSCA 306, (2005) 13 VR 337.
Directions to jury. Depending on the
circumstances of the case, a judge may need to direct a
jury that unless it is satisfied to the requisite
standard that so much of the confession as tended to show
guilt was true, the jury cannot treat it as proof of
guilt: R v Mitchell
[2006] VSCA 289; R v Schaeffer
[2005] VSCA 306, (2005) 13 VR 337.
AJS v R
[2007] HCA 27, (2007) 235 CLR 505; Gilbert v R
[2000] HCA 15, (2000) 201 CLR 414; R v Nous
[2010] VSCA 42; R v DD[2007]
VSCA 317; R v Christy[2007] VSCA 152, (2007) 16 VR 647; R v Saad[2005]
VSCA 249, (2005) 156 A Crim R 533;R v Kane
[2001] VSCA 153, (2001) 3 VR 542.
> Amendment
version
1 October 2010
Where a charge clearly indicates an
offence but in its statement there is some slip or
clumsiness, there may be amendment; a charge which
contains nothing which can identify it with any offence
known to the law is not be covered by power of amendment:
Broome v Chenoweth[1946] HCA 53, (1946) 73 CLR 583.
At trial: Criminal Procedure Act s.165, s.166. Preferably
re-arraignment if the amendment changes the issue already
raised: Reid v R[2010]
VSCA 234; R v Hoser [1998] 2 VR 535.
A trial judge can grant leave to amend the wording of a
count even after a verdict of guilty has been returned;
in one case, the amendment involved including a reference
to the particular statute said to have been contravened
in the count, though no one had been under any
misapprehension as to the source of that offence
throughout the trial, and prior to verdict; minor
amendments of that nature should be able to be made at
any stage of a proceeding: there are many examples of
appellate courts having approached the question of
amendment in this way, and having declined to quash
convictions based upon errors of an entirely formal
nature: OAA v R
[2010] VSCA 155.
Inherent power of Supreme Court to entertain an appeal
against refusal of bail: R v Durose [1991] VR
176. Statutory power of Supreme Court to entertain an
appeal by DPP against grant of bail: Bail Act s.18A.
Absconding. After failure to appear (in County and
Supreme Courts the practice is thrice calling by
tipstaff), the Undertaking of Bail for appearance at
trial is tendered. Any surety or sureties are then
likewise called. Then usually order sought for forfeiture
of undertaking of bail together with the amounts
undertaken by any surety. Forfeiture is mandatory: see Crown Proceedings Act
s.6(1). Exception - illness, accident or other sufficient
cause: Bail Act s.16(3).
Forfeiture of the undertaking of a surety is mandatory
upon forfeiture of the undertaking of bail: R v Baker [1971]
VR 427. A surety might be able to pre-empt the matter by
an application under the Bail Act s.23. A surety has a
right to apply for an order varying or rescinding the
forfeiture: Crown Proceedings Act s.6(4); DPP v Mokbel
[2007] VSCA 195; Re Wilkinson [1983] 2 VR 250; Re
Condon [1973] VR 427. Forfeiture by person bailed:
Bail Act s.32. Court may issue warrant for arrest of
accused: Bail Act s.26(2).
Bail pending conviction or sentence appeal to Court of
Appeal will ordinarily be exercised by the Court of
Appeal constituted by two judges of appeal, and granted
only in very exceptional circumstances: Criminal Procedure Act
s.310. On conviction appeal: R v Pandevski[2007] VSCA 84; Re Clarkson [1986] VR 583. On
sentence appeal: Re Zoudi[2006]
VSCA 298; Re Schaefer
[2006] VSCA 268. R v Phung
[2001] VSCA 81.
> Calling of prosecution
witnesses
version
29 June 2010
Discretion of trial prosecutor. "A
refusal to call the witness will be justified only by
reference to the overriding interests of justice. Such
occasions are likely to be rare. The unreliability of the
evidence will only suffice where there are identifiable
circumstances which clearly establish it; it will not be
enough that the prosecutor merely has a suspicion about
the unreliability of the evidence. In most cases where a
prosecutor does not wish to lead evidence from a person
named on the indictment but the defence wishes that
person to be called, it will be sufficient for the
prosecutor simply to call the person so that he may be
cross-examined by the defence and then, if necessary, be
re-examined": R v Apostilides[1984] HCA 38, (1984) 154 CLR 563; also Coulson v R[2010] VSCA 146; Svajcer v R
[2010] VSCA 116; R v Chimirri[2010] VSCA 57;R v Jensen
[2009] VSCA 266; R v Martin
[2000] VSCA 163. In general, the Crown would be expected
to call eye witnesses of any events which go to prove the
elements of the crime charged even though they give
accounts inconsistent with the Crown case and the names
of such persons would, ordinarily, in conformity with
Presentment Rule 4(1) be endorsed on the presentment: R v Armstrong[1998] VICSC 350,[1998] 4 VR 533.
Prosecution calling of witnesses whose evidence is to be
criticised by it generally is unobjectionable: R v Macfie (No 2) [2004] VSCA 209, (2004) 11 VR 215. Calling
simply for cross-examination: R v Foley (1984)
13 A Crim R 29; R v Komornick [1986] VR 845.
> Change of plea
version
7 December 2010
Once plea of guilty has been entered at
County Court or Supreme Court arraignment, change to plea
of not guilty requires permission of the Judge which may
be granted at any time until sentence is passed, or in
the event it has been made as part of a mixed plea before
jury, until verdict. Whether to grant permission is a
discretion; the test is whether not to allow change would
be a miscarriage of justice: Maxwell v R
[1995] HCA 62, (1995) 184 CLR 501; Brooks v R
[2010] VSCA 322; R v Holden[2009]
VSCA 254;R v Douglass
[2006] VSCA 37, (2004) 9 VR 355; R v Seyfarth[1998] VSCA 27.
Use upon trial of former plea of guilty or indication of
intention to plead guilty: R v Constantinou[2009] VSCA 257; R v Rustum[2005]
VSCA 142; R v D'orta-Ekenaike [1997] VICSC 31, [1998] 2 VR 140. Directions
must be given to jury if use permitted.
If a change of plea to guilty after arraignment before
jury, the judge may discharge the jury from delivering a
verdict on the charge and instead direct that an entry of
guilty be made: Criminal Procedure Act s.241.
Indictment: For Victoria cases, the
Director of Public Prosecutions or a Crown Prosecutor in
name thereof solely possess the power to indict ie bring
for trial (formerly termed "present for
trial"): Criminal Procedure Act s.159; Public Prosecutions Act s.36; R v Taylor
[2008] VSCA 57; R v Parker [1977] VR 22.
Normally this follows a committal for trial by a
Magistrate but the power to indict is independent of
this; there is power to make direct indictment. There may
be extreme circumstances where to indict without
committal proceeding is abuse of process: Barton v R
[1980] HCA 48, (1980) 147 CLR 75; Williams, Brincat and Traglia v DPP[2004] VSC 516. Where there has been a
committal on Victoria law and a defendant has been
discharged on a charge, to indict on a count that is not
materially different from that offence requires special
decision under Public Prosecutions Act
sections 3, 23, see further section 37. Criminal Procedure Act
Schedule 1 has some rules for Charges on a Charge Sheet
or Indictment. On DPP's limited power as to guidelines: Public Prosecutions Act s.26. Omission of certain details not fatal to
indictment: Criminal Procedure Act s.166. Filing over: R v TSR
[2002] VSCA 87, (2002) 5 VR 627. Where a defendant has
been committed or indicted, there is a prosecution power
to discontinue the proceedings traditionally known as
Nolle Prosequi: Criminal Procedure Act s.177; Public Prosecutions Act s.25; County Court Criminal Procedure Rules 2.05; Gipp v R
[1998] HCA 21, (1998) 194 CLR 106.
It is comparable though not identical with Commonwealth
prosecutions: R v Holden[2001] VSCA 63; R v Nicola [1987] VR 1040.
A Victoria (or any othe State) law which to any extent is
inconsistent with a law of the Commonwealth is invalid to
that extent and indictment relying on such law to that
extent is to be quashed: Constitution of Australia s.109; Dickson v R
[2010] HCA 30, (2010) 241 CLR 491.
> Cross-examination
version
9 January 2012
Provision against improper question or
improper questioning:Evidence Act s.41.
Questions should not include comment and personal views
of the cross-examiner, nor be of compound structure,
invite argument or interrupt answers: Libke v R[2007] HCA 30, (2007) 230 CLR 559. Cross-examination
bounds considered in Wakeley v R[1990]
HCA 23, (1990) 64 ALJR 321.
Cross examination of an accused as to whether a witness
is lying is improper unless the defence has positively
asserted that the witness was lying: Martin v R
[2010] VSCA 153; R v HRA[2008]
VSCA 56; R v Davis
[2007] VSCA 276; R v SWC[2007]
VSCA 201; R v Gell[2006]
VSCA 255; R v MMJ
[2006] VSCA 226; R v Bajic
[2005] VSCA 158, (2005) 12 VR 155; R v Buckley
[2004] VSCA 185, (2004) 10 VR 215. It is legitimate to
suggest to the witness that the witness is in error and
to invite the witness in view of someone else's testimony
to modify the story or admit the possibility of error; a
witness can be asked if what another witness has said is
true.
Cross-examination may be to credit if the evidence could
substantially affect the assessment of the credibility of
the witness, subject in some circumstances to leave: Evidence Act
ss103-104. Leave is not required for cross-examination
whether the witness is biased or has a motive to be
untruthful, or is, or was, unable to be aware of or
recall matters to which his or her evidence relates, or
has made a prior inconsistent statement. Alleged facts
put merely to credit should be subject of direction to
jury as to their limited function. Independent evidence
to contradict answers given by a witness in
cross-examination as to credit ordinarily is admissible
in defined circumstances some requiring leave: Evidence Act s.106.
This provision appears to displace the common law
collateral evidence rule referred to in R v BDX
[2009] VSCA 2, (2009) 194 A Crim R 57.
Prior statements of witness, where inconsistent with
testimony, may be put to the witness against credit and,
if denied, proved: Evidence Act ss.43,
106. Generally, prior consistent statements cannot be put
to witness unless to re-establish credibility: Evidence Act ss.101A,
102, 108. Once the witness admits making the statement or
it is proved, prior statement also becomes relevant as to
the truth: Evidence Act s.60.
The rule in Browne v Dunn is essentially that a
party is obliged to give appropriate notice to the other
party, and in cross-examination of that person's
witnesses, of any imputation that the former intends to
make against either of the latter about his or her
conduct relevant to the case, or a party's or a witness'
credit, but it is not for the defence to clear up, or
resolve inconsistencies in the case for the prosecution: MWJ v R
[2005] HCA 74, (2005) 222 ALR 436 see also Nicholls v R
[2005] HCA 1, (2005) 219 CLR 196; KC v R[2011]
VSCA 82; R v Coswello[2009] VSCA 300; R v Morrow[2009] VSCA 291; R v Thompson[2008] VSCA 144; R v SWC[2007]
VSCA 201; R v McLachlan
[1999] VSCA 127, [1999] 2 VR 553. In the circumstances of
R v MG [2006]
VSCA 264, a direction to the jury that the rule had been
breached was held erroneous. In the particular
circumstances of R v ZW [2006]
VSCA 256, prosecution arguments to the jury that the rule
had been breached were held legitimate. Where relevant,
it is appropriate that an explanation for compliance with
the rule be given to the jury: R v Demiri
[2006] VSCA 64. Where rule has been breached, the judge
may comment adversely but cannot withdraw consideration
of the defence argument from the jury: R v Rajakaruna (No 2) [2006] VSCA 277, (2006) 15 VR 592. Where the
rule has been breached but for good reason such as that
such cross-examination would open up in re-examination
prejudicial evidence, adverse comment by prosecutor or
judge may have to be avoided to prevent miscarriage of
justice: Bugeja v R
[2010] VSCA 321. It will seldom be desirable for a judge
in a criminal trial to invite the jury to use breach of
the rule in Browne v Dunn as the basis for an
inference that the accused has made up evidence: Buchwald v R[2011] VSCA 445
Cross-examination of own witness if unfavourable: Evidence Act s.38. An
alternative course may be leading the witness: R v Kuster
[2008] VSCA 261, (2008) 21 VR 407; R v Shalala[2007]
VSCA 199, (2007) 17 VR 133; R v Thynne [1977] VR
98.
The general rule is against putting other offences or bad
character to an accused, see Evidence Act
ss.110-112. In limited circumstances, there is a
discretion to permit cross-examination of an accused as
to bad character. Though under previous legislation, see R v Sage
[2009] VSCA 156; R v Thomas
[2006] VSCA 167; R v Stantchev
[1995] VICSC 144. R v Perrier (No 1) [1991] 1 VR
697.
Subject to avoidance of unfairness, the prosecution is
entitled to open fresh relevant issues in
cross-examination of defence witnesses: R v Chin[1985]
HCA 35, (1985) 157 CLR 671; R v Vonarx
[1995] VICSC 216, [1999] 3 VR 618; R v TSR
[2002] VSCA 87, (2002) 5 VR 627. The unfairness in this
context of splitting a prosecution case, see also R v Soma
[2003] HCA 13, (2003) 212 CLR 299.
Cross-examination by trial judge is permitted but it is
not to endeavour to fill gaps in a Crown case; nor to ask
questions of an accused or any other witness in order to
raise an issue which the Crown and the accused have left
alone; nor to ask leading questions of an accused or any
other witness in an endeavour to throw doubt upon the
witness’s credit, particularly if the witness is the
accused: R v Brdarovski[2006] VSCA 231, (2006) 166 A Crim R 366 .
Basha enquiry. Where fairness requires,
cross-examination before trial commences of prosecution
witness not called at committal: R v Pham
[2008] VSCA 41; DPP v Denysenko [1997] VICSC 4, [1998] 1 VR 312; R v Basha (1989)
39 A Crim R 397.
Cross-examination on a document. Evidence Act s.35
abolishes a rule that if cross-examination goes beyond
the part of the document used by the witness to refresh
memory and the document has been called for and
inspected, tender of the document can be required.
> Double jeopardy and other bars
to re-litigation of issues
version
29 August 2011
There are various bars which can
operate at a criminal court against the re-litigation of
issues already concluded by conviction or acquittal.
(1) Plea in bar - autrefois acquit or autrefois convict -
prevents proceeding upon an alleged offence where there
has already been a verdict for an offence the elements of
which were identical or in which all of the elements were
wholly included: Charter of Human Rights and Responsibilities Act
s.26; Pearce v R[1998]
HCA 57, (1998) 194 CLR 610; R v Mason[2006]
VSCA 55; R v Langdon[2004]
VSCA 205, (2004) 11 VR 1. Some have expressed the view
the underlying principle for this is res judicata. Plea
in bar also prevents proceeding where there has been a
verdict on an offence which is practically the same: Pearce
v R; R v HMcL[1998]
VSCA 61; R v Sessions [1998] 2 VR 304. Indeed, it
may well be that, in given circumstances, a conviction on
a lesser offence will create a bar to subsequent
prosecution on a more serious offence; this will occur
where the subsequent prosecution for more serious offence
amounts to prosecution for an aggravated form of the
offence earlier prosecuted, but relies for its proof on
the same evidential fact: DPP v Collins
[2004] VSCA 179. There is no plea in bar where there has
been a dismissal not on the merits: Davern v Messell[1984] HCA 34, (1984) 155 CLR 21; Howard v
Pacholli [1973] VR 833. There is no plea in bar where
a charge or count has been subject of dismissal or
directed acquittal for duplicity: R v VN[2006]
VSCA 111, (2006) 162 A Crim R 195. It seems that in
summary proceedings, no plea in bar is possible but the
same principle is effected as stay for abuse of process.
(2) Stay of proceeding for abuse of process, especially
where it would be harsh or oppressive to pursue an
offence arising out of some matters previously canvassed
in a trial for another offence: R v Carroll[2002] HCA 55, (2002) 213 CLR 635; R v Clarkson [1987]
VR 962. Also stay of proceeding or exclusion of evidence
by reason of abuse of process where the proceeding or
evidence conflicts with a previous acquittal for an
offence the elements of which were practically the same: Pearce v R.
(3) Interpretation of Legislation Act s.51 extends to prevent additional conviction under
another law being recorded in respect of the same act or
omission, the idea being that punishment, to which the
section refers, includes conviction: R v Filipovic[2008] VSCA 14, (2008) 181 A Crim R 83; R v Ngo[2007]
VSCA 240;R v Novak[2003] VSCA 46; R v Sessions [1998] 2 VR 304.
Issue estoppel is the wider idea, known to civil law,
that a legal or factual point necessarily determined as
part of earlier court proceeding cannot be re-litigated.
Except to the extent that the bars above might be seen by
some as examples of it, issue estoppel does not have any
application in criminal law: Rogers v R
[1994] HCA 42, (1994) 181 CLR 251 (per Mason CJ, Deane
and Gaudron JJ). However, at least sometimes abuse of
process applies in such a situation to stay proceedings
or exclude evidence, as for example with the previously
excluded prosecution evidence in Rogers or
evidence shown rejected by a previous acquital on a
related charge as in HP v R [2011]
VSCA 251. There are also principles directed to ensuring
the incontrovertible character of judicial decisions
which prevent re-litigating a precisely same point
already decided by the same judge at the same trial, and
perhaps go further.
> Evidence illegally or unfairly
obtained
version 9 January 2012
Evidence that was obtained - (a)
improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a
contravention of an Australian law - is not to be
admitted unless the desirability of admitting the
evidence outweighs the undesirability of admitting
evidence that has been obtained in the way in which the
evidence was obtained: Evidence Act s.138; Ridgeway v R[1995] HCA 66, (1995) 184 CLR 19; Bunning v Cross
[1978] HCA 22, (1978) 141 CLR 54; DPP v Marijancevic[2011] VSCA 355; R v Thomas
[2006] VSCA 165; R v Theophanous[2003] VSCA 78, (2003) 141 A Crim R
216.
> Expert opinion
version
28 March 2011
Evidence of an opinion of a person that
is wholly or substantially based on specialised knowledge
based on the person's training, study or experience;
contrary to common law applicable before 2010, may extend
to a fact in issue or an ultimate issue, or a matter of
common knowledge: Evidence Act ss.79-80;
Clark v Ryan
[1960] HCA 42, (1960) 103 CLR 486; R v Farquharson[2009] VSCA 307; R v BDX
[2009] VSCA 28, (2009) 194 A Crim R 57; R v Ryan[2002]
VSCA 176; R v Anderson
[2000] VSCA 16.
Evidence of statements to a doctor by persons such as
alleged victims of crime, if they explain the
doctor’s opinion, are admissible for that purpose: Ramsay v Watson [1961] HCA 65, (1961) 108 CLR 642; R v JMA
[2007] VSCA 105; R v Barrett
[2007] VSCA 95; Evidence Act s.77.
Between states or territories
of Australia
A Commonwealth Act, the Service and Execution of Process Act, by sections 81-94 provides for the execution
of warrants of apprehension from one state or territory
of Australia to another, by order of a Magistrate.
Bail pending a hearing to determine whether a person is
to be extradited interstate is in accordance with the
State in which the person is being held: s.88.
Review by Supreme Court: s.86. Power to stay for
oppression and unfairness: R v Lavelle (1994)
72 A Crim R 402.
To other countries
A Commonwealth Act, the Extradition Act,
provides for the execution of warrants of apprehension
issued from other countries with which Australia has
extradition treaties. Its procedures include decisions by
the Attorney-General and a Magistrate: see further DPP v Kainhofer[1995] HCA 35, (1995) 185 CLR 528; Attorney-General v Tse [1998] HCA 25, (1998) 193 CLR 128. Various
regulations under the Extradition Act bring extradition
treaties into Australian law: see Extradition Act s.11
and regulations for example Commonwealth Countries,
United States, Germany. The
Magistrate is precluded from taking into account matters
other than those set out in s.19(2) but their content
varies according to the regulations applicable.
See also Crimes (Traffic in Narcotic Drugs and
Psychotropic Substances) Act
and associated extradition regulations.
Bail pending a hearing to determine whether a person is
to be extradited overseas must be dealt with in
accordance with Extradition Act s.15, s.32 (New Zealand).
Review by Federal Court of an order for extradition:
s.21; Republic of South Africa v Dutton[1997] FCA 708, (1997) 77 FCR 128; Federal Republic of Germany v Parker [1998] FCA 803.
From other countries
Is Commonwealth executive power: Oates v Attorney-General [2003] HCA 21, (2003) 214 CLR 496. Confinement
of trial to extradition offences or at least offences
related to them: ("speciality") Extradition Act s.42; Truong v R[2004] HCA 10, (2004) 223 CLR 122.
this page iswww.justd.com/notes4.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia