Case: R v Karsten [2007] ACTSC 20 , 208 FLR 324
Outcome: cited
Intervening, namely in February 2007, was the decision of Connolly J of the Supreme Court of the Australian Capital Territory: R v Karsten [2007] ACTSC 20 , 208 FLR 324. In those proceedings Mr Karsten sought to challenge the decision of the magistrate. Justice Connolly entertained a Notice of Appeal against the decision of the magistrate. Relevant to the order made by the magistrate are the following observations of his Honour: [5] The Extradition Act (1988) of the Commonwealth provides two routes by which the question of whether surrender will occur may proceed. By s 18, a person who has been remanded, may consent to their surrender. The matter is then laid before the Commonwealth Attorney-General for determination as to whether surrender will, in fact, occur. Or, pursuant to s 19, there may be a contested hearing in relation to whether there is eligibility to surrender. [6] The common factual ground here is that Mr Karsten indicated his consent to being extradited and, as I understand it, there is no dispute that the learned Magistrate went through the necessary steps under s 18(2) which requires a magistrate, unless they have reason to believe the consent was not voluntary, to advise the person of the effect and consequences of their determination to surrender. There is no specific provision in the Act relating to a variation of that determination. His Honour's reasons for decision record the submission made through the Commonwealth Director of Public Prosecutions that the Supreme Court had: [7] ... no general jurisdiction ... to entertain firstly an appeal from a s 18 decision, and specifically no jurisdiction to permit a variation in the form of consent that was on the papers at least given at that hearing. The question before Connolly J was formulated by his Honour as being " whether or not this Court has the jurisdiction to entertain an application to allow Mr Karsten to withdraw his consent to an extradition ": [2007] ACTSC 20 at [1] . That question was answered in the negative. His Honour did, however, go on to further observe: [18] There is a general discretion in the Attorney in relation to the extradition process, and it seems to me that the question of the voluntariness of consent would be a question that the Attorney would need to satisfy himself of. Clearly, if a situation was one where a person had no English skills at all, or had been tricked in some way into agreeing to consent, that would be a matter that would necessarily attract attention and the Attorney and [sic] would need to make a determination to that effect. Before the Supreme Court Mr Karsten was legally represented. A more general submission advanced on the hearing of the present Motion before this Court that Mr Karsten was thereafter represented by counsel, it is considered, should not be accepted. What advice was given to Mr Karsten by his then legal representative when appearing in the Supreme Court remains, not surprisingly, unknown. 47 Relevantly, however, by the time the s 22 determination was made, the only judicial challenge to the s 18 decision had been heard and resolved against Mr Karsten. In such circumstances it is considered that the requirements of s 22 had been met, namely that there was a lawful " order of a magistrate made under section 18 ", and that any condition precedent to the exercise of the power conferred by s 22 had been satisfied. 48 Even if the construction of s 22 which has been given to that section be incorrect, it is considered that it would be an abuse of process to now permit the Applicant to advance such a contention. It would be an abuse of the process of the Court for a person the subject of extradition proceedings to seek to challenge an order made pursuant to s 18; to be informed that the means of challenge then being invoked were not available to him; to thereafter await a determination made under s 22; and, when that determination is adverse, to be permitted to then revert to his earlier position by asserting that there was no power to make the s 22 determination.