QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR. JUSTICE MOSES
| KAZEEM KOLAWOLE OKENDEJI
|- and -
|(1) THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA
(2) BOW STREET MAGISTRATES' COURT
Mr John Hardy (instructed by The Crown Prosecution Service) for the Defendant
Hearing date: 4th March 2005
Crown Copyright ©
The alleged facts
The statutory scheme
"(i) If the judge is required to proceed under this section (by virtue of Section 84…) he must decide whether the person's extradition would be compatible with the Convention Rights within the meaning of the Human Rights Act 1998(c.42).
(2) If the judge decides the question in sub section (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to Secretary of State for his decision whether the person is to extradited."
It is by virtue of Section 87 that the issue as to breach of Article 6(2) arises.
"(1) If the judge sends the case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision…"
An appeal may be brought on a question of law or fact (Section 103(4)) and is triggered by the decision of the Secretary of State to extradite (Section 103(5)).
"(1) On an appeal under Section 103 the High Court may –
(a) allow the appeal
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal
The court can only allow the appeal if certain conditions are satisfied. The relevant conditions for the purposes of this appeal are those set out in sub-section (3) which provides:-
"(3) The conditions are that-
(a) the judge ought to have decided the question before him at the extradition hearing differently;
(b) if he had decided a question in the way he had ought to have done, he would have been required to order the person's discharge. "
A reversal of the legal burden of proof
"Any person who…without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of the Act…shall be guilty of an offence…"
Section 233B(1A) of the Customs Act 1901 further provides that:-
"On the prosecution of a person for an offence against subsection (1) being an offence to which paragraph (c) of that subsection applies, it is a defence if the person proves that he or she did not know that the goods in his or her possession had been imported into Australia in contravention of this Act."
"Any person who fails without reasonable excuse (proof whereof shall lie upon the person) to appear before a court in accordance with the person's bail undertaking is on summary conviction, guilty of an offence against this section… "
The decision of the District Judge
"It is well established law that questions of foreign law must be dealt with as questions of fact and there must be expert evidence. No such evidence has been forthcoming and, therefore, I do not have any knowledge of how this would operate in Australia. For Mr Summers to say boldly that it is a reverse burden is, without proof of the foreign law, insufficient."
More elliptically the District Judge continued:-
"In view of the nature of the offence, there must be an element of proportionality which is met here. Further, in extradition cases, as opposite (sic) to domestic criminal matters it is only a (sic) case of flagrant breaches that the human rights legislation should kick-in."
The imposition of a legal as opposed to evidential burden of proof
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Both the appellant and Australia accepted, as they were bound to do, that in order to resist extradition on the grounds of a risk of a breach of Article 6 it must be shown that the appellant risks suffering a flagrant denial of a fair trial in Australia (see Soering v United Kingdom  11 EHRR 439 at para 113 and para 24 of the speech of Lord Bingham in R (Ullah) v Special Adjudicator  2 AC 323 at page 352.) In that paragraph Lord Bingham pointed out that lack of success of applicants relying on Article 6 before the Strasbourg Court highlighted the difficulty of meeting the stringent test which that court imposed.
"In the present case the defence under Section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under Section 28 is in strict law regarded as a pure defence…"
"properly and fairly consider and determine any challenge based on an alleged unjustifiable interference with a presumption of innocence."
The ability of the court to ensure the fairness of the trial could not successfully be challenged in Elliot. The Secretary of State's view could not be shown to be irrational. But in the instant case there is no evidence as to whether the District Court of New South Wales has the ability properly and fairly to consider any challenge to the relevant sections on the 1901 Act based on the alleged unjustifiable interference with the presumption of innocence. I reject the contention that the matter can safely be left to the District Court of New South Wales in the absence of any evidence as to the approach the courts in New South Wales would adopt.
State-endorsed entrapment – abuse of process
Lord Justice Maurice Kay: