Barnard v Commonwealth of Australia & Anor

LADY JUSTICE HALLETT: In 2003, allegations of sexual assault upon three of his female relatives surfaced against the appellant, Mr Barnard, in Australia, where he then lived. He is a British national who has returned to live in this country. Mr Barnard was interviewed about the allegations in the spring of that year but, whilst the investigation was ongoing, he left Australia and returned to live in the United Kingdom in Worcestershire. He informed the police of the State of Victoria of his address in this country.

Following his leaving the country, a number of warrants were issued for his arrest pursuant to the Magistrates' Court Act 1989 (Victoria). Errors were spotted in some of them by the authorities in Australia. They were quashed and then others substituted. We now have before us 33 warrants. Mr Barnard believes that he has spotted further errors in those 33 warrants, errors which he submits invalidates them.

The warrants are the basis for the request to extradite Mr Barnard made by the Commonwealth of Australia. The Secretary of State has granted a certificate to indicate that the request has been made in an approved way. The request for extradition came before District Judge Evans. On 20^th October 2006, he considered the material put before him on paper. Mr Barnard was represented at that time. No point or points were taken as to the validity of the warrants or to the paperwork. No points were taken on abuse of process or the like and the District Judge referred the matter to the Secretary of State as, if all was in order, he was bound to do. It was then for the Secretary of State to consider the request for Mr Barnard's extradition on 33 alleged offences of a sexual nature.

Mr Barnard has represented himself before us. He has informed us that he brought to the attention of his lawyers at the Magistrates' Court the matters that he has brought to our attention, but they did not see fit to pursue them. His appeal to us is under section 103 of the Extradition Act 2003. He has abandoned his appeal against the Secretary of State under section 108. Accordingly, during the course of the hearing, my Lord and I dismissed the appeal under section 108 and we dispensed with the services of counsel representing the Secretary of State.

The grounds of appeal Mr Barnard has advanced before us can be summarised in this fashion. Mr Barnard argues that false, misleading and flawed evidence was put before the court in Australia and subsequently the court in this country. He argued that Australian officers provided misleading and false information and committed acts of perjury to obtain the warrants. He argues, therefore, it is an abuse of the process of the court to allow an extradition request to be considered on the basis of warrants obtained in this fashion.

There are two areas where Mr Barnard maintains he has spotted errors. The first relates to the address that the officers have provided. In each of the warrants, the address provided is an address in Meadowlark Lane in Victoria, Australia. Mr Barnard argues that the Deputy Registrar of the Magistrates' Court, who heard evidence on oath and certified the warrants as being properly issued, would not have granted those warrants had she known that this was not his address and that he was now living in the United Kingdom. He also maintains that, when one looks at the bottom of six of the warrants, someone has ticked the wrong box indicating the basis upon which the warrant was requested. He referred us to the fact that in these particular warrants the ticked box reads "The person is avoiding the service of the summons". He accepts that, if a summons had been issued and somebody was avoiding service of it, that would be sufficient for the issuing of a warrant but he argues that no summonses have ever been served or issued upon him and therefore he could not be described as somebody who is avoiding the service of a summons. The cumulative effect of these errors, he submits invalidate the warrants and the request for extradition.

I can deal with Mr Barnard's arguments relatively briefly. I deal first with the allegation of perjury. In my judgment, it does not withstand close scrutiny. One must look at the warrant as a whole. The address given in Victoria is either described as the “last known address”, which makes it plain to my mind that it is the last known address in Australia, and/or has added the words "The defendant has absconded" , "The defendant fled Australia in 2003 to avoid attending court". Plainly, therefore, there is no question that an attempt has been made to mislead the court. The officers have made it clear on the face of the warrant what they allege has happened. Accordingly, there is nothing to support the assertion that the officers have committed perjury and there is nothing in my judgment to support the assertion that there is any abuse of the process of the court.

I turn to the question of whether or not six of the warrants have been invalidated by ticking the wrong box. Mr Barnard accepts that, had the officer ticked the box "It is probable that the person will not answer a summons", he would have no argument but, because they have ticked the third box down, that has invalidated the warrant. In my view, again, that argument does not withstand close scrutiny. Firstly, as Mr Ezekiel on behalf of the Government of Australia has pointed out, there is no evidence before us that no summonses have been issued. In any event, there was an assumption, validly made at the Magistrates' Court, that these warrants were properly issued and authorised. If this point was to be taken, it should have been taken before the District Judge. Even had the point been taken before the District Judge, in my judgment, it would have failed to prevent the request fro extradition proceeding. Given the material before him the District Judge was bound to find that there were warrants justifying the request for extradition and he would therefore have been bound to send this matter to the Secretary of State. Thus, although Mr Barnard, has raised an issue that was not raised before the court below pursuant to section 104(4), for my part he has failed to persuade me that the issue that he has raised would have resulted in the District Judge deciding the question before him in any way differently and, accordingly, I would dismiss this appeal.

MR JUSTICE LLOYD JONES: I agree.

LADY JUSTICE HALLETT: Thank you.