Mayhew v United States of America [2004] FCA 1197

Mayhew v United States of America [2004] FCA 1197

The magistrate did not err in finding that s 19(3)(c)(ii) was satisfied because the indictment set out the essential elements of the six offences and the identified part of the Feldman affidavit set out the United States' factual allegations; together they constituted a duly authenticated written statement of the conduct. The speciality assurance was confined to the six specified surrender offences. However, the AFP had no authority under the Extradition Act 1988 (Cth) or at common law to search the applicant's luggage without a warrant, seize the property, or continue retaining it, because the property had no connection with the United States taxation offences, no warrant had been...

Jurisdiction
Australia
Judgment Date
17 September 2004
Procedural Posture
Application Under S 21(2)(b) of the Extradition Act 1988 (cth) to Review a Magistrate's Extradition Eligibility Decision, and Application Under S 39 B of the Judiciary Act 1903 (cth) Concerning Seized Property / Judgment After Hearing
Outcome
The extradition eligibility order was confirmed; the property was declared unlawfully seized and ordered to be returned; no order as to costs.
Legal Topics
['eligibility for Surrender' 'supporting Documents for Extradition' 'statement of Conduct Constituting Extradition Offence' 'speciality Assurance' 'search and Seizure Without Warrant' 'retention and Return of Seized Property']
['extradition' 'administrative Law' 'criminal Procedure' 'police Powers'] ['eligibility for Surrender' 'supporting Documents for Extradition' 'statement of Conduct Constituting Extradition Offence' 'speciality Assurance' 'search and Seizure Without Warrant' 'retention and Return of Seized Property']

Case Brief

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Procedural Posture

Application Under S 21(2)(b) of the Extradition Act 1988 (cth) to Review a Magistrate's Extradition Eligibility Decision, and Application Under S 39 B of the Judiciary Act 1903 (cth) Concerning Seized Property / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the United States had produced to the magistrate a duly authenticated statement in writing setting out the conduct constituting the offences for the purposes of s 19(3)(c)(ii) of the Extradition Act 1988 (Cth).' 'Whether the magistrate erred by identifying the statement of conduct from the indictment and part of the Feldman affidavit among a larger body of authenticated material.' 'Whether the speciality assurance rule prevented reliance on the material placed before the magistrate beyond the six offences specified in the indictment.' "Whether AFP officers lawfully searched the applicant's luggage without a warrant and seized and retained his property." 'Whether the Court should refuse return of the retained property on illegality grounds.']

Ratio Decidendi

The magistrate did not err in finding that s 19(3)(c)(ii) was satisfied because the indictment set out the essential elements of the six offences and the identified part of the Feldman affidavit set out the United States' factual allegations; together they constituted a duly authenticated written statement of the conduct. The speciality assurance was confined to the six specified surrender offences. However, the AFP had no authority under the Extradition Act 1988 (Cth) or at common law to search the applicant's luggage without a warrant, seize the property, or continue retaining it, because the property had no connection with the United States taxation offences, no warrant had been...

Court Disposition

The extradition eligibility order was confirmed; the property was declared unlawfully seized and ordered to be returned; no order as to costs.

Orders

  • ['The order made by the second respondent on 12 May 2004 that the applicant is eligible for surrender to the first respondent in relation to certain specified extradition offences be confirmed.' "It be declared that the property described in annexure 'A' to the application filed in this proceeding was unlawfully...