Oskar v Government of the Commonwealth of Australia
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor,Lord Bridge of Harwich,Lord Templeman,Lord Ackner |
| Judgment Date | 16 December 1987 |
| Judgment citation (vLex) | [1987] UKHL J1216-1 |
| Date | 16 December 1987 |
| Court | House of Lords |
[1987] UKHL J1216-1
House of Lords
Lord Chancellor
Lord Bridge of Harwich
Lord Templeman
Lord Ackner
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Ackner. I agree with him that the appeal should be dismissed for the reasons which he has given.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Ackner. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
For the reasons given in the speech of my noble and learned friend Lord Ackner, which I have had the opportunity of reading in draft, I too would dismiss the appeal.
My Lords,
Dr. Shrian Oskar appeals, by the leave of the Divisional Court, against its order made on 21 May 1987 dismissing his motion for a writ of habeas corpus, following upon his committal to custody on 6 March 1986 under section 7 of the Fugitive Offenders Act 1967 ("the Act"), as a result of a requisition made by the Government of the Commonwealth of Australia.
This appeal raises four questions:
1. Where an indictment, or a count of an indictment, has been ordered to lie on the file, not to be proceeded with without the leave of the Crown Court or of the Court of Appeal (Criminal Division), has the offence with which the accused has been charged, been "disposed of" within the meaning of section 9(2)( d) of the Act?
2. If it has not been "disposed of," was the Secretary of State entitled in the circumstances of the present case to issue his authority to proceed under section 5 of the Act?
3. Was the evidence which was submitted to the metropolitan stipendiary magistrate at Bow Street Magistrates Court admissible evidence under section 11 of the Act?
4. Having regard to the passage of time since the appellant is alleged to have committed the offence, the subject of the requisition, was it unjust or oppressive to return him to Australia?
The first and second questions can conveniently be dealt with together but the third and fourth need to be considered separately. However, before doing so, it would be convenient to set out the relevant circumstances which gave rise to the request for the appellant's return to Australia.
The appellant is a Paraguayan national who in the 1970's acquired interests in the construction of refineries for refining vegetable oils, particularly in the South Pacific. In 1979 a company, Bunbury Foods Pty. Ltd. ("the company"), negotiated with a West German company that the latter should supply plant and machinery for a refinery at Bunbury in Western Australia, for the extraction of sunflower seed oil at a cost of nearly five and a half million Australian dollars. Contemporaneously with the making of that agreement, that is on 25 June 1979, the Commonwealth of Australia agreed to lend to the company Australian $1,600,000 for the purpose of setting up the refinery. It was alleged that on the same date a deed of guarantee was signed by the appellant, witnessed by a solicitor of the name of Watt, under which the appellant personally guaranteed the due and punctual repayment of any sums due under the loan agreement. By paragraph 9 of the agreement it was agreed that the guarantee should be governed by the law of the state of Western Australia only. The appellant denies that he signed the guarantee, asserting that on 25 June 1979 he was not in London, where the agreement was alleged to have been signed, but in New Zealand.
Pursuant to the agreement, the Commonwealth of Australia lent the said sum to the company but it failed to make repayments of the sums due thereunder, whereupon the Commonwealth of Australia sought to enforce the guarantee against the appellant personally. On 6 October 1982 the Commonwealth of Australia filed a statement of claim in the Supreme Court of Western Australia claiming from the appellant, under the guarantee, the sum of Australian $1,796,870.16 and interest. On 26 January 1983 the appellant filed a defence denying that he had executed the said or any guarantee. On 28 January 1983 the Commonwealth of Australia filed a reply which asserted that the appellant was estopped from denying that he had executed the guarantee, because his co-director, acting under a power of attorney from the appellant, had executed a second guarantee, to be held until the Commonwealth of Australia received the guarantee allegedly executed by the appellant. The trial took place between February and May 1983. On 26 May 1983, while the appellant was still being cross-examined, the court adjourned. On 31 May 1983 when the court resumed, the appellant submitted to judgement on the estoppel point. He at no time accepted that he had in fact signed the guarantee. The appellant then appears to have left Australia and a few months afterwards the exhibits in the case were handed over to officers of the Western Australian State Police. In February 1984 a warrant was issued in Australia for the arrest of the appellant, alleging that he had committed perjury in the course of his evidence in Perth in May 1983.
The scene now shifts to England, where on 12 June 1984 the appellant appeared in bankruptcy proceedings brought against him. In August of that year he was arrested in England, and on 14 December 1984 he was committed in custody for trial at the Central Criminal Court for various offences, including one alleging that he had committed perjury in the course of the bankruptcy proceedings in June 1984. On 2 August 1985 the appellant was convicted at the Central Criminal Court and sentenced to two years' imprisonment, but the charge of perjury, alleged to have been committed in the course of the bankruptcy proceedings, was ordered to lie on the file, not to be proceeded with without the leave of the Central Criminal Court or the Court of Appeal (Criminal Division).
Meanwhile in Australia on 21 March 1985 the Attorney-General of Australia had issued an authorisation to a stipendiary magistrate of Western Australia, to receive evidence for transmission to the United Kingdom, to seek the surrender from the United Kingdom to Australia of the appellant. On 26 March the stipendiary magistrate at Perth heard evidence in support of this offence. On 5 September 1985 the requisition was served and on 27 November the Secretary of State issued an authority to a metropolitan stipendiary magistrate to proceed with the case against the appellant, pursuant to section 5 of the Act.
By reason of the length of time that the appellant had spent in custody awaiting his trial at the Central Criminal Court, he was released from prison on 17 December 1985, but was promptly re-arrested for the purposes of committal pursuant to the Secretary of State's authority referred to above.
On 6 March 1986 the committal proceedings were heard at the Bow Street Magistrates' Court, at the conclusion of which the appellant was committed in custody to await his return to Australia, to be tried for the offence of knowingly giving false testimony in the course of the proceedings in May 1983, namely that his signature did not appear on the deed of guarantee. This is an offence under section 35(1) of the Australian Crimes Act 1914 and carries a maximum penalty of imprisonment of five years.
On 20 March 1986 the appellant's then solicitors gave notice of the appellant's intention to move the Divsional Court for a writ of Habeas Corpus. His application was heard by the Divisional Court consisting of Stephen Brown L.J. and Tudor Evans J. on 10 and 11 December 1986, when the court ajdourned the application in order for the Secretary of State to be given an opportunity to be represented and for the application to be heard by a court of three judges. The adjourned hearing took place on the 20 and 21 May 1987, on which latter date the appellant's application was dismissed.
1. Had the perjury charge, which had been ordered to lie on the file by the Central Criminal Court been "disposed of" and if not, was the Secretary of State entitled to issue the authority to proceed against the appellent?
The provisions of the Act which are relevant to the above two questions are:
"Section 5. Authority to proceed.
(1) … a person shall not be dealt with [under this Act] except in pursuance of an order of the Secretary of State (in this Act referred to as an authority to proceed), issued in pursuance of a request made to the Secretary of State by or on behalf of the Government of the designated Commonwealth country … in which the person to be returned is accused …
(2) …
(3) On receipt of such a request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.
Section 9. Order for return to requesting country.
(1) Where a person is committed to await his return and is not discharged by order of the High Court … the Secretary of State may by warrant order him to be returned to the country by which the request for his return was made unless the return of that person is prohibited, or prohibited for the time being, by … this section …
(2) An order shall not be made under this section in the case of a person who is … charged with an offence, in the United Kingdom -
( a) …
( b) in the case of a person charged with an offence, until the charge is disposed of or (emphasis added) withdrawn and, if it results in a sentence of imprisonment (not being a suspended sentence), until the sentence has been served, (emphasis...
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