Case: Dutton v O'Shane and Another [2003] FCAFC 195 ; (2003) 200 ALR 710
Outcome: followed
Dutton v O'Shane and Another [2003] FCAFC 195 ; (2003) 200 ALR 710 the Full Court considered whether the Magistrate's rulings as to the admissibility of documentary evidence were reviewable by the Court. Finn and Dowsett JJ at [162] said: As we understand it in light of the second respondent's additional submissions, the magistrate's rulings (which cover about 70 pages of transcript) were made in light of her consideration of the contents of the documents themselves and of the character of the material in question (that is, "relevance", "unqualified opinion", "unfairly prejudicial", etc). Though finding the "excluded" material not to have utility in the resolution of the question before her, the magistrate nonetheless engaged in "an active intellectual process" in relation to that material (cf Tickner v Chapman (1995) 57 FCR 451 at 462; Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277ff; 142 ALR 1 at 13) in and for the purposes of the s 19 determination. In light of her rulings, the magistrate may not have regarded the material as "admissible evidence" on the issue she had to determine. However, those rulings did not rob that material of the character of "material that was before the magistrate" for s 21(6)(d) purposes. They merely made it material that was disregarded. In view of the above authorities, it is now established that the Court may take into account as constituting 'material that was before the magistrate' any material that was admitted by the Magistrate as well as any material that was rejected by the Magistrate provided that in the course of rejecting the material the Magistrate had engaged in 'an active intellectual process' in relation to that material. The Evidence Act However, in Cabal (2001) the Full Court found that although the magistrate is not bound by the Evidence Act , the reviewing court is. At [189] the Full Court said: Proceedings for review brought in this Court under s 21 of the [Extradition Act] are subject to the operation of the provisions of the [Evidence Act] notwithstanding the fact that those provisions are not applicable to the initial proceedings brought before a magistrate under s 19 of the [Extradition Act]. The Court observes that the Full Court in Dutton v O'Shane at [147] confirmed that the reviewing court is bound to apply the Evidence Act . A review under s 21 of the Extradition Act is in essence a rehearing subject to the limitation posed by s 21(6)(d) of the Extradition Act : see Cabal (2001) at [100]; Dutton v O'Shane at [148]. However, if a magistrate and the reviewing court are subject to different legislative regimes governing admissibility, and in particular if the reviewing court is subject to the regime of the Evidence Act , the ability of that court to consider material that was before a magistrate may be significantly restricted. An extradition objection framed under s 7(c) of the Extradition Act requires an applicant to demonstrate, inter alia, that there are substantial grounds for believing that the extradition country's judiciary may be prejudiced against that applicant. Given the nature of such a task, it is possible that the evidence available to an applicant would be scarce. It seems incongruous that sections of that applicant's evidence should be excised in a court that is ostensibly conducting a rehearing based on the material that was before the magistrate. The Court is mindful of the observations of French J in Cabal (2000) at 749 where his Honour said: The very nature of those objections [the objections are referred to in s 7(b) and (c) of the Extradition Act ] is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character. French J's observations must be read in the context of his finding at [23], namely that this Court is not bound by the rules of evidence in conducting a s 21 review. As discussed above, the Full Court decisions in Cabal (2001) and Dutton v O'Shane have established that this Court is bound to apply the provisions of the Evidence Act when conducting the review. French J in Cabal (2000) held that material that was accepted by the magistrate constituted material that was before the magistrate. As the Magistrate did not reject the reports it is accordingly not necessary to consider whether he engaged in an 'active intellectual process' in relation to such reports: see Dutton v O'Shane at [162]. In these circumstances, the Court accepts the submission of the applicant that such reports constituted material which was 'before the magistrate' . The respondent also objects to the tender of the Amnesty Report on the basis that such report contains remote hearsay. Such report is relied upon by the applicant as 'background' to the Serbian and Croatian dispute. The Court finds that the Amnesty Report contains hearsay and anecdotal material and therefore does not comply with the requirements of the Evidence Act . Accordingly the Amnesty Report is not admitted.