Apr 10, 2021

MAGISTRATE TINA PREVITERA:   Thank you.  Good morning.  Now, I’ll take the matter of R v Talalelei Pauga.  And I’ll take appearances, thank you.  Yes, Mr McKechnie.

 

MR M. McKECHNIE:   Your Honour, McKechnie, initial M.  Instructed by the Australian Government Solicitor on behalf of Samoa, who is the proper applicant, not the Commonwealth.

 

MAGISTRATE TINA PREVITERA:   Thank you, Mr McKechnie.

 

MR G. MANCINI:   And your Honour, G. Mancini together with my learned friend, G. Finlayson on his instructions for Mr Pauga.

 

MAGISTRATE TINA PREVITERA:   Thank you.  All right.  Now, this is a matter mentioned today in relation to an intended application by Mr Pauga to have me recused from further involvement in the matter.  Directions were made for the filing of material by Mr Pauga, filing and serving material by Mr Pauga by the 26^th of February.  No material has been filed.  So Mr Mancini, are you proceeding with your application?

 

MR MANCINI:   Yes, your Honour.  But not today because we’re not ready.  I’ve just got some [indistinct] if I may.  Your Honour, there is – the context of all of that is obviously a need to obtain transcripts of previous hearings.  We’ve got transcripts I think up until the hearing of the 11^th of December.  And also, the subsequent hearing before your Honour is the 12^th of February.  Now, your Honour, what we do in the usual course is apply for that transcript to Auscript and in that context, compel – compile an application for fee waiver.  And that is then processed.

 

MAGISTRATE TINA PREVITERA:   When was your application made for the first of – what’s the first date of the transcript that you don’t have?

 

MR MANCINI:   We don’t have the transcript for the 11^th of December.

 

MAGISTRATE TINA PREVITERA:   And when did you apply for it?

 

MR MANCINI:   We applied for that transcript and the 12^th of February transcript on the 13^th of February.  And your Honour, both transcripts are important to any application.  And so your Honour, we submitted the request.  It’s automated with an internet computer process.  We have previously supplied fee waivers application requests which had been granted and as I understand the procedure, your Honour, one submits that fee waiver to Auscript, they then consult with the Attorney-General’s department for determination as to whether or not to grant the fee waiver.  And it’s been ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Why do you need transcripts, Mr Mancini?  You’ve got someone taking notes, I presume, of everything I say that could possibly be objectionable ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ 

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ and you then simply have your instructing solicitor prepare an affidavit which speaks to those objectionable statements that I’ve made which Mr Pauga says give rise to founding an application that I recuse myself.

 

MR MANCINI:   Well, your Honour, that’s one way of doing it which, in my experience, is not necessarily a way that engages certainty because there are always potential ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   I’m always happy to repeat an allegedly objectionable statement if there’s any concern that our instructing solicitor hasn’t got it ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ quite right.  I’m more than happy to repeat anything as many times as it takes for him to write it down.

 

MR MANCINI:   Well, your Honour, we didn’t need to and didn’t go through that process because ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, I invite you to use that process from now on.

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   I’m also very happy to- speak - as – slow-ly - as - is – re-quired - to - en-able your scribe – sorry, your – in-struc-ting sol-ici-tor - to - get every- word - down.  I’m more than happy ‑ ‑ ‑

 

MR McKECHNIE:   Your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ proceed on ‑ ‑ ‑

 

MR FINLAYSON:   Your Honour, could you please slow down a little.

 

MAGISTRATE TINA PREVITERA:   I’m certainly happy to slow down, yes.

 

MR MANCINI:   Your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   And - I’d - say - to - your - instructing solicitor that - I - would – in - vite him - to - ask me -  in - the fash-ion  - which - he – has - just done, should -  I - be – speak-ing  - too - fast - as - I - am - wont - to - do.  It’s also important that Mr Pauga be able to hear everything that I am saying.  And I should indicate that as a result, this matter is given greater time in the list and can be given even more time so that my words can be written down.  May I say at this stage that there has been not a great deal that would be contained in a transcript.  As I understand, Mr Mancini, either yourself or your instructing solicitor has seen all of my notes on the file which otherwise comprises directions which have not been complied with.  You have also been present either in person or on the phone and will be well aware of the reasons that you indicated you would be making the application for me to recuse myself.  You don’t need a transcript for that.  So I’d ask you to call upon your mind and your memory and place on record from your in person presence in court your reasons why I should recuse myself.

 

MR MANCINI:   Very well, your Honour.  I’ll endeavour to do that.

 

MAGISTRATE TINA PREVITERA:   I’d like that to happen today.

 

MR MANCINI:   Yes. 

 

MAGISTRATE TINA PREVITERA:   You have notes of the ‑ ‑ ‑

 

MR MANCINI:   No.

 

MAGISTRATE TINA PREVITERA:   You haven’t brought your file?

 

MR MANCINI:   Sorry?

 

MAGISTRATE TINA PREVITERA:   You’ve indicated you don’t have notes.

 

MR MANCINI:   No, I didn’t indicate that, your Honour.

 

MAGISTRATE TINA PREVITERA:   Well, you said no.  The record – the transcript will show you said no.

 

MR MANCINI:   Your Honour could – sorry, your Honour.

 

MAGISTRATE TINA PREVITERA:   I’m sorry, am I speaking to fast?

 

MR MANCINI:   No, your Honour.  I go about things in a way that historically is done in a way that is appropriate and is beyond criticism.  Your Honour is now designing a suggestion or an invitation to approach that application in a different way.

 

MAGISTRATE TINA PREVITERA:   The application for me to recuse myself is listed for today at 11.30.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   It’s listed ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ for today. 

 

MR MANCINI:   And I’m not making it today.  So your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, that’s when it’s listed ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ Mr Mancini.  It’s a matter for you whether you proceed today or not.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   That’s when it’s listed.

 

MR MANCINI:   That’s right.

 

MAGISTRATE TINA PREVITERA:   All right.

 

MR MANCINI:   So we’re not ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   It’s listed to be heard today.

 

MR MANCINI:   Indeed.

 

MAGISTRATE TINA PREVITERA:   That’s why we’re here.

 

MR MANCINI:   Yes.  And we can’t make it today.  So your Honour, in going about what I would respectfully suggest is a quite proper approach to making such an application that would not involve anything other than the usual approach, then we need to do what we have to do.

 

MAGISTRATE TINA PREVITERA:   Well, the usual approach would be that in accordance with the directions, you would file and serve any application – and I’m looking at my notes – from the 10^th of February this year.  I direct that Mr Pauga file and serve any application for recusal on or before 4 pm on the 26^th of February.  I list any recusal application for the 12^th of March 2021 at 11.30 am.

 

MR MANCINI:   Cheers.

 

MAGISTRATE TINA PREVITERA:   So the normal course would be that you would comply with that direction and then we would hear the application today.

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   And I’ve not heard any reason why it should not proceed today.

 

MR MANCINI:   We’re not ready, your Honour.  That’s what I say.

 

MAGISTRATE TINA PREVITERA:   All right.  Well, my proposal, then, is to set this matter down for hearing.  Not the recusal, the whole application.  Samoa’s application.  Mr McKechnie, how many days do you seek the court set it for?

 

MR McKECHNIE:   One day, your Honour.  And I should note, your Honour, those are precisely the orders that I was going to ask for.  You know, on the basis that there is – there’s been no evidence filed about, you know, any other matters that might take it longer, the issues are relatively straightforward.  There will be some legal argument based on the matters that have been raised by Mr Pauga’s representatives but one day should be sufficient.  But it would be the entire day.

 

MAGISTRATE TINA PREVITERA:   Okay, thank you.  Do you agree with that estimate, Mr Mancini?

 

MR MANCINI:   No, your Honour, I don’t.

 

MAGISTRATE TINA PREVITERA:   How long do you say it would take?

 

MR MANCINI:   I haven’t put my mind to that question, your Honour.  Your Honour, has your Honour had a chance to read – consider the document that’s been provided in December entitled, “By way of submissions?”

 

MAGISTRATE TINA PREVITERA:   Look, there was leave given to file a document which I have described as a 50 page ‑ ‑ ‑

 

MR MANCINI:   Roadmap.  Sorry, that ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Is it a 50 page document?

 

MR MANCINI:   Fifty-one items.

 

MAGISTRATE TINA PREVITERA:   Fifty-one items.

 

MR MANCINI:   Yes.  And then there’s ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   All right.  Let me just pull that up.

 

MR MANCINI:   ‑ ‑ ‑ earlier to that – that was filed in February.  And then, your Honour, earlier to that was the submissions that we prepared in response to – well [indistinct] request from your Honour of the 30^th of October and we filed that in December.  Has your Honour had a chance to read that?

 

MAGISTRATE TINA PREVITERA:   I’ve got the five page 61 point document.  What’s the second document that you’re referring to?

 

MR MANCINI:   It’s typed documents of about 24 pages filed in December, the 12^th of December which is typed and is in respect of submissions. 

 

MAGISTRATE TINA PREVITERA:   I don’t recall it.  Do you have a copy there?  And I’ll just see if it matches anything I’ve got.  Have you got a copy of it, Mr McKechnie?

 

MR McKECHNIE:   I have it electronically, your Honour.

 

MAGISTRATE TINA PREVITERA:   Okay.  All right.  Well, if I could have a copy, Mr Mancini.

 

MR MANCINI:   So your Honour, that’s – we haven’t got a clean copy, your Honour, so we’ll organise that.

 

MAGISTRATE TINA PREVITERA:   I’ve got an affidavit.

 

MR MANCINI:   No, it’s not an affidavit.

 

MAGISTRATE TINA PREVITERA:   It’s not an affidavit.

 

MR MANCINI:   No.

 

MAGISTRATE TINA PREVITERA:   Well, let me just keep looking.  All right.  I’ve got submissions that would appear, however, to be filed before her Honour Magistrate Merrin.  And they ‑ ‑ ‑

 

MR MANCINI:   No, it wasn’t that.

 

MAGISTRATE TINA PREVITERA:   Wasn’t that.

 

MR MANCINI:   No, I don’t think so, your Honour.

 

MAGISTRATE TINA PREVITERA:   That’s nine pages.  That’s – sorry, 10 pages.

 

MR MANCINI:   That would have been in September, I should think.

 

MAGISTRATE TINA PREVITERA:   Okay.  No, I haven’t got that document ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ of which you speak.

 

MR McKECHNIE:   Your Honour, perhaps just by way of assistance ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   ‑ ‑ ‑ it was – it was handed up and discussed ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MR McKECHNIE:   ‑ ‑ ‑ at the December hearing.

 

MAGISTRATE TINA PREVITERA:   Okay.

 

MR McKECHNIE:   It contained the two annexures which were in the form of online articles about matters in Samoa and I consented to your Honour taking them on the usual objection that those ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Okay.

MR McKECHNIE:   ‑ ‑ ‑ went to go the truth of their context.

 

MAGISTRATE TINA PREVITERA:   I’ve certainly seen those.  So let me just pull those up and ‑ ‑ ‑

 

MR McKECHNIE:   And the first 14 or so pages of that document, it starts with the matter header and the first subheading involves jurisdiction.

 

MAGISTRATE TINA PREVITERA:   Okay.  I’ve now found the submissions.  I’m sorry, they just seem to be in a different position.  So I’ve got 17 pages of submissions with a number of attachments which do include a newspaper article, a private letter to his excellency from the international bar association of human rights, institute and other annexures.  Annexures from the government of Samoa or headed the government of Samoa.  So yes, I do have those, Mr Mancini, after all.  Yes.

 

MR MANCINI:   Has your Honour had a chance to read them?

 

MAGISTRATE TINA PREVITERA:   Well, not today, no.  But let me just do that now.  Now, if I remember correctly, and I’m happy to be corrected, this was the material to which the court had regard when setting out directions for the filing of a plan by the defence.  Yes.  So 10^th of December, those submissions were considered and taken into account and in fact were in part the reason for the directions this court made on that date for Mr Pauga to file and serve upon the Commonwealth a written plan as to the evidence reports and witnesses that intends – he intends to call and a timetable as to when report statements from any such witnesses are available.  So I do – I do recall that that document was received and was the subject of those directions or relevant to the making of those directions. 

 

So we’re discussing, Mr Mancini, how long you think the trial ‑ ‑ ‑

 

MR MANCINI:   [indistinct]

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ or the hearing should go.

 

MR MANCINI:   I don’t have – I haven’t addressed that because your Honour, as your Honour identified, those submissions went only in part to the directions.  Putting aside the directions that your Honour made, there was nothing considered at that stage and therefore it was still open to – for the issues to be engaged, in particular under the heading jurisdiction.  So your Honour, one of the fundamentals we say as a matter of proper engagement of any function in these proceedings is the determination of whether jurisdiction is engaged, and if so, what jurisdictional power is engaged.  So your Honour, that question, as your Honour acknowledges by virtue, what your Honour has said [indistinct] needs to be decided.  That is relevant to the exercise of jurisdiction by your Honour at any stage in respect of these proceedings and then also goes to the question – there’s an aspect of that that we say arises and that is whether there’s any jurisdictional power to make any of the orders or directions that your Honour has made thus far, including the ones to identify from the – from December and then the other directions made for affidavits.

I mentioned previously, your Honour, that – and I mentioned it only that it’s our contention that your Honour doesn’t have any power to make any of those orders.  And so that question needs to be identified.  And so, your Honour, we want to be heard about those questions. 

 

MAGISTRATE TINA PREVITERA:   Yes.  Anything else on that issue of hearing dates and length of hearing, Mr Mancini?

 

MR MANCINI:   Well, your Honour, I’m inviting you to respond, respectfully, for that request for determination of those issues.

 

MAGISTRATE TINA PREVITERA:   Well, I don’t have an application before me, Mr Mancini.

 

MR MANCINI:   Sorry, your Honour.  Does your Honour require an application for something?

 

MAGISTRATE TINA PREVITERA:   No.  Today was listed for the application for my recusal.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   That’s clearly not proceeding.  And ‑ ‑ ‑

 

MR MANCINI:   Today.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ there is no other application.

 

MR MANCINI:   It’s clearly – clearly not proceeding today.

 

MAGISTRATE TINA PREVITERA:   Well, that’s a matter for you.

 

MR MANCINI:   That’s right.

 

MAGISTRATE TINA PREVITERA:   But certainly, it’s not proceeding.

 

MR MANCINI:   Today.  So you rest assured if ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, it’s listed for today.  It’s not proceeding today.

 

MR MANCINI:   No, that’s right.

 

MAGISTRATE TINA PREVITERA:   There’s no application.

 

MR MANCINI:   No application.

 

MAGISTRATE TINA PREVITERA:   There’s no material.

 

MR MANCINI:   So ‑ ‑ ‑

MAGISTRATE TINA PREVITERA:   It’s not proceeding.

 

MR MANCINI:   So when we’re ready, your Honour.  We’d like to be ready and ready to the best ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, I’m inviting you to indicate to me when you will be ready for a hearing.  For a hearing.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   Because I propose setting hearing dates today.  I’ll set another date for the making of any preliminary applications but I’m setting a hearing.  So I would like you to address me on, you know ‑ ‑ ‑

 

MR MANCINI:   Sorry, your Honour, we got ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ when you’ll be ready for a hearing.

 

MR MANCINI:   For what hearing?

 

MAGISTRATE TINA PREVITERA:   The extradition hearing.

 

MR MANCINI:   I don’t understand what that is, your Honour.

 

MAGISTRATE TINA PREVITERA:   Well, I can’t give you legal advice, Mr Mancini.

 

MR MANCINI:   No, no, no, your Honour.

 

MAGISTRATE TINA PREVITERA:   It’s not my role to assist you.

 

MR MANCINI:   [indistinct] telling me your listing and has a function of how to list a hearing of an application.

 

MAGISTRATE TINA PREVITERA:   It’s the extradition application.  It’s the ‑ ‑ ‑

 

MR MANCINI:   Well, which ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ application that Samoa has brought.

 

MR MANCINI:   Which application is that, your Honour?

 

MAGISTRATE TINA PREVITERA:   Mr Mancini, I cannot – I cannot give you legal advice.  It’s not ‑ ‑ ‑

 

MR MANCINI:   I’m not asking for legal advice.

 

MAGISTRATE TINA PREVITERA:   It is not my role, all right.

 

MR MANCINI:   Your Honour, I’m asking ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   It is not my role.

 

MR MANCINI:   I’m asking, your Honour, politely, for your Honour to identify the application.

 

MAGISTRATE TINA PREVITERA:   It’s the application filed by Samoa for your client to be extradited to Samoa.

 

MR McKECHNIE:   May [indistinct] your Honour.

 

MR MANCINI:   Yes.  Precisely.  Precisely.

 

MR McKECHNIE:   The Section 19 application made by Samoa – I’m assisting Mr Mancini.

 

MR MANCINI:   I understand that.

 

MAGISTRATE TINA PREVITERA:   And I’m hearing Mr McKechnie.

 

MR MANCINI:   Sorry, your Honour.  Sorry, your Honour.  If he’s permitted to interrupt me whilst making submissions and your Honour permits that, can we make sure that that’s recorded for the purposes of our application.

 

MAGISTRATE TINA PREVITERA:   I think I’ve answered your question, Mr Mancini.  I don’t need to say anything further.

 

MR MANCINI:   Yes, your Honour.  So if it’s a ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   It’s a Section 19 application for ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ Mr Pauga’s extradition to Samoa.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   It cannot be any clearer than that in this court’s view.  But, look, I can’t assist you to understand it any more than that.  It is not my role ‑ ‑ ‑

 

MR MANCINI:   No, no.  It’s not, your Honour.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to give you advice.

 

MR MANCINI:   No, but it’s your Honour’s role to identify what is the power your Honour’s exercised.  And the basis of ‑ ‑ ‑

MAGISTRATE TINA PREVITERA:   It’s the power pursuant to Section 19.  That’s how we’re proceeding.

 

MR MANCINI:   Well – yes, your Honour.

 

MAGISTRATE TINA PREVITERA:   All right. 

 

MR MANCINI:   Put it ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   The ruling has been given on that already before her Honour Magistrate Merrin and I propose to set hearing dates today with any outstanding applications to be listed before another date.  I’m proposing hearing dates of the 10^th and 11^th of June are ‑ ‑ ‑

 

MR MANCINI:   Of – of what, your Honour?

 

MAGISTRATE TINA PREVITERA:   10^th and 11^th of June.

 

MR MANCINI:   Of?

 

MAGISTRATE TINA PREVITERA:   Of the application under Section 19.

 

MR MANCINI:   Two days is only set aside.

 

MAGISTRATE TINA PREVITERA:   Well, the Commonwealth – sorry, Samoa only wants one but I’m going to give it two ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ so that I can complete it ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ for sure.  So 10^th and ‑ ‑ ‑

 

MR MANCINI:   Your Honour won’t ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ 11^th of June.

 

MR MANCINI:   ‑ ‑ ‑ be completing it ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Are those dates ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ in two days.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ suitable to you?  Are you available on those dates, Mr Mancini?

 

MR MANCINI:   No, your Honour, I’m not.

MAGISTRATE TINA PREVITERA:   Could you please give me two dates in June when you are available.

 

MR MANCINI:   Two – your Honour, we will not finish in two days.

 

MAGISTRATE TINA PREVITERA:   Well, I’m just asking you to give me two days.  Two days when you’re available in June, thanks.

 

MR MANCINI:   I’ll look – I’ll look at that, your Honour.

 

MAGISTRATE TINA PREVITERA:   If you would look at that now, thank you.

 

MR MANCINI:   Your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Mr McKechnie, are you available on those two days?

 

MR McKECHNIE:   I’m available on those two days.  I endorse the approach of your Honour for listing it for two days out of an abundance of caution.  Can I just – and this is relevant to the question ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   ‑ ‑ ‑ of how long this is going to take.

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   I’m going to make two submissions.  Firstly, with regards to jurisdiction, the jurisdiction that your Honour has to determine a Section 19 application is set out in Section 19 itself.  Section 19 subsection (1) contains four elements which Federal Courts, on review, often refer to as the jurisdictional requirements.  And the usual practice is that they’re heard at the same time.  So they’re – that’s the first hurdle that Samoa has to overcome to get your Honour to conduct the hearing and then there’s more substantive elements.  And that’s already in my written submissions.  For a second ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Excuse me.  Mr Mancini, you might want to listen to Mr McKechnie because I think it answers the question you were hoping I would be able to answer in my role but which I am not able to.

 

MR MANCINI:   I’m indebted to your Honour.  I’m listening.

 

MR McKECHNIE:   The second submission I have regarding the length of the hearing goes to the issues that are to be determined.  Currently, they are matters of law that rise and fall upon the extradition documents that have been filed by Samoa.  The more extensive issues of questions of fact about extradition objectives were, as your Honour has identified, the subject of the orders that Mr Pauga has repeatedly – not only repeatedly failed to comply with but has repeatedly failed to comply with further orders of your Honour asking him why he hasn’t complied.  And Samoa submits that this hearing will take two days on the very clear understanding – and I’m putting this very clearly on the record – that there is to be no argument about extradition objections because today’s an opportunity to put that material in.  And the time has come to proceed with that hearing.

 

So in the absence of any of that, it’s essentially legal argument only.  In an ordinary matter, I would say one day.  But as I said before, I accept for a matter like this that two days is appropriate.  Unless your Honour has any further questions about the procedure and the listing ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   All right.  Look, I do.

 

MR McKECHNIE:   Yes.

 

MAGISTRATE TINA PREVITERA:   I’ve not consulted with the diary before I gave you those dates and my Clerk tells me that there’s nothing before the 7^th, 8^th of July.  So are those dates available to ‑ ‑ ‑

 

MR McKECHNIE:   I’m available then, your Honour.

 

MAGISTRATE TINA PREVITERA:   And Mr Mancini?

 

MR MANCINI:   I’ll look at that, your Honour, but I think at the moment, subject to speaking to my learned friends, I’m available.

 

MAGISTRATE TINA PREVITERA:   All right.  Well, I’ll adjourn the matter for hearing on two days, the 7^th and 8^th ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ of July.  Now, it will be listed – well, I would hope it would be listed in court 18 because that far in advance, I wouldn’t know – well, let’s just see if I’m available.  That might help.  Actually, it would have to be the 8^th and 9^th of July.

 

MR McKECHNIE:   That’s fine, your Honour.  One further thing, your Honour.  Could your Honour make directions about Samoa filing material, which should only be submissions ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   ‑ ‑ ‑ in reply.  Your Honour will recall that that – that was still a step to be taken and it was going to depend on what material is put forward by Mr Pauga.  But there is – there is matters in that submission document that your Honour looked at today that I think your Honour would be assisted by if Samoa put written submissions in.  And perhaps if the date for that could be the 24^th of June.

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   Which gives everyone two weeks before the hearing.

 

MAGISTRATE TINA PREVITERA:   Could you do it earlier than that so that Mr Mancini has more time to respond?

 

MR McKECHNIE:   Yes.  We could do 10^th of June.

 

MAGISTRATE TINA PREVITERA:   10^th of June.  All right.  So I’ll set the matter for hearing in court 18 at 9 am.  Could I make it very clear that it will not actually proceed in that court.  That is a feeder court but I can’t indicate today what court I will be in that far down the track.  And so could the parties please fully expect that when they turn up to court 18 on the 8^th of July, they will be directed to whatever court I am presiding in that day which is not today known to me or indeed to the Registry or indeed to the Chief Magistrate’s Office.  I’m then going to direct that Samoa file and serve any material upon which it relies before 4 pm on the 10^th of June 2021 and I’ll direct that Mr Pauga ‑ ‑ ‑

 

MR MANCINI:   Sorry, your Honour.  Before your Honour makes any directions, can I be heard?

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR MANCINI:   Thank you. 

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR MANCINI:   Your Honour, Mr McKechnie made a glib submission, with respect [indistinct] that there are no extradition objections as a matter of fact in the rulebook and that therefore, your Honour should conduct the proceedings as to extradition.  That’s not the way we go about it and we will make submissions about that in the jurisdictional context in due course.  So when he makes a submission about that and your Honour accepts that submission and lists the matter without hearing from me about that, once again, as part of a repeated pattern on your part to do so, then your Honour needs to pause because the hastiness on which you’re embarking upon this process is only going to create more difficulty without your Honour giving us a proper opportunity to be heard.  And we’ve never had that.  We still don’t have it today before anything further is done.

 

So your Honour, once again, we’re here for mention in respect of the proceedings and suggestions of an application for recusal only, not for anything else.  And your Honour, the imbalance in the approach is that my learned friend makes the application for listing of the extradition process ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   No, he didn’t make the application.  I indicated that that’s what I proposed to do ‑ ‑ ‑

 

MR MANCINI:   Yes.  Yes.

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ and he supported that approach.

 

MR MANCINI:   Well, in other words, your Honour, without notice other than in correspondence yesterday, which I hand up to your Honour.  Sorry, that correspondence comprises an email from the instructing solicitor to Mr Finlayson of the 11^th of March and Mr Finlayson’s response of the 11^th of March.

 

MAGISTRATE TINA PREVITERA:   Thank you.  I’ll give you leave to – I’ll give you leave to file that material and I’ll place it on the file.

 

MR MANCINI:   We’d like your Honour to read it.

 

MAGISTRATE TINA PREVITERA:   Well, I will read it.

 

MR MANCINI:   Yes.  So let me just say, your Honour, that for the [indistinct] time yesterday was when the Commonwealth – or Samoa, through the Commonwealth – indicated they would be seeking the listing of the matter for the extradition hearing.  And so, your Honour, we’ve had no notice to prepare and what we did was take up an invitation your Honour was [indistinct] for us to give further information genuinely, in an attempt to avoid what we say is the unnecessary burden upon the parties and the [indistinct] your Honour to have adversarial hearings.  They wanted further information and we said we’ll give it to you.  And so your Honour, that needs to be considered.  My learned friend didn’t point to that as part of what was the approach by the Commonwealth.  Because we asked the Commonwealth what were they wanting to do.  They didn’t tell us but you know, a little bit of prudence might dictate that you tell us what you want.  They didn’t but they’d rather surprise us.  So yes, we came along yesterday and asked what would you like to have happen today.  They rejected that and we responded in the context of what was said.  That is, that rather than engaging in a process that is only going to be productive of difficulty at this level and on any ministerial and court review processes under Section 21, etcetera, that we give you the information.  And we’re going to give the information, your Honour.

 

So that approach, a conciliatory, non-adversarial approach invited upon by the – Samoa was taken up by us.  And your Honour, it seems they don’t want to take that up now.  Instead, they want to list it and they’ve given us a day as notice of that.  So your Honour, Samoa gets to list things without notice and yet we have to file applications within seven days prior to a hearing.  So your Honour can see there’s somewhat of an imbalance in the treatment of the parties.

 

Your Honour, in that respect, we have done, your Honour, what we can to inform your Honour and Samoa about what’s required to be done.  We have done that genuinely, your Honour.  We have produced the first submissions document and the roadmap your Honour was somewhat disparaging of the roadmap without seeking an explanation or information as to what it compromised.  Rather, your Honour made directions about said things [indistinct] some directions, in my respectful submission, against our objection and on the basis that there is no power for your Honour to make those [indistinct] and I would defy Samoa to identify the power or invite your Honour to identify the power because there is no power.

 

MAGISTRATE TINA PREVITERA:   Mr McKechnie did that on the last occasion ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ as did I.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   I’m not revisiting that matter.

 

MR MANCINI:   Well, he didn’t, your Honour.

 

MAGISTRATE TINA PREVITERA:   He did.

 

MR MANCINI:   Well, your Honour, he did not because the authority that he’s cited doesn’t stand to what he proposed and I want to be heard about that question.  In other words, your Honour designs orders which the Extradition Act doesn’t permit.  There is no power of a Magistrate to do – make any orders or directions under the Extradition Act.  The only orders that the Magistrate can make under the Extradition Act are orders for remand or bail, production of ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   So why haven’t you appealed me?

 

MR MANCINI:   There’s no right of appeal, your Honour.

 

MAGISTRATE TINA PREVITERA:   Why haven’t you reviewed me, sorry.

 

MR MANCINI:   Well, we are doing that.  I’ve mentioned that to your Honour.  And we are diligently working on that.  But the review is not to do with those processes because we might at least, to exhaust our avenues or properly, fairly and reasonably, putting those matters to you so that you can consider them before we embark upon the expense and the burden of taking reviews in respect of those orders.  I did say on the last occasion, your Honour, that we are advancing Federal Court proceedings and the detail of those Federal Court proceedings is actually in our email.  And that’s being worked on.  But we’re not going to rush into it.  We don’t have material, evidentiary material, and I’ve identified that for your Honour, the transcripts.  We don’t – and we’re working on the issues around that.

 

Those proceedings are serious proceedings and are concerned with jurisdiction of your Honour, the functions of your Honour as a judicial officer, the functions of the Magistrates Court of Queensland and its – to use the neutral term, interference in the process under the Extradition Act and its involvement in the process of the Extradition Act.  We’re concerned with issues around chapter 3 and issues around prohibition and recusal of your Honour.  So we can make a recusal application here and we will do so.  But we made it once before, your Honour.  Your Honour does – would recall that of the 12^th of February.  And your Honour dealt with it by dismissing it without anything more.

 

So it’s a little bit difficult making another application when your Honour has that sort of approach.  And having made that sort of approach identifies your Honour’s view about such an application.  Does your Honour recall that?

 

MR McKECHNIE:   I don’t recall that.

 

MR MANCINI:   Well, I do.  And ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   That’s not ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ if you don’t recall it, then that just means you can’t contest what I say.  I have a clear recollection of that.

 

MAGISTRATE TINA PREVITERA:   And you have a transcript, Mr Mancini.

 

MR MANCINI:   No, I don’t, your Honour, because ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Yes, you do.

 

MR MANCINI:   ‑ ‑ ‑ it’s a February – it’s the February.

 

MAGISTRATE TINA PREVITERA:   You told me that the only transcripts you don’t have are those – no, that might be – hang on.

 

MR MANCINI:   It’s the 12^th of February transcript, your Honour.

 

MAGISTRATE TINA PREVITERA:   No, no, no.

 

MR MANCINI:   Does my learned friend have that transcript.

 

MR McKECHNIE:   I don’t.  I can assist your Honour from my notes and my recollection of what happened on the 12^th of February ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   ‑ ‑ ‑ if no one else can recall.  Mr Mancini made an application – indicated that he wanted to make an application to recuse.  Your Honour asked him to make it now and he said no.

 

MR MANCINI:   I think ‑ ‑ ‑

 

MR McKECHNIE:   I think your Honour said about three or four times – please, Mr Mancini, I’m talking.

MR MANCINI:   No, I think ‑ ‑ ‑

 

MR McKECHNIE:   “Mr Mancini, if you’re going to ‑ ‑ ‑

 

MR MANCINI:   No.

 

MR McKECHNIE:   ‑ ‑ ‑ make your application for recusal, you should make it now.”

 

MR MANCINI:   Okay.

 

MR McKECHNIE:   And then he indicated just as he did today that they wouldn’t because he wasn’t prepared.  And that is precisely why your Honour made the orders that were made ‑ ‑ ‑

 

MR MANCINI:   That’s right.

 

MR McKECHNIE:   ‑ ‑ ‑ that the application be filed with the supporting material and it was to be filed by the 26^th of March.

 

MAGISTRATE TINA PREVITERA:   That’s correct.

 

MR MANCINI:   That’s not [indistinct]

 

MR McKECHNIE:   [indistinct]

 

MR MANCINI:   And that’s the very [indistinct]  Mr McKechnie relies not upon a transcript but a reconstruction.  So I put to your Honour what I say occurred which I verified numerous times.

 

MAGISTRATE TINA PREVITERA:   Why are we even having this conversation, given that I made directions ‑ ‑ ‑

 

MR MANCINI:   So those on ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ that you were to ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ the transcript ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ file and serve documents by the 26^th ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ of February in relation specifically to an application that I recuse ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ myself which application was listed for today.

 

MR MANCINI:   And we’re not ready.

 

MAGISTRATE TINA PREVITERA:   Now, you had ‑ ‑ ‑

 

MR MANCINI:   We haven’t got the transcripts, your Honour.  Does your Honour have the transcript?  I think your Honour’s said you were going to get the transcript.

 

MAGISTRATE TINA PREVITERA:   I would have ordered a transcript and – because I have given directions for transcripts to be prepared ‑ ‑ ‑

 

MR MANCINI:   And they’re not. 

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ in relation to this matter.

 

MR MANCINI:   And they’re not.

 

MR McKECHNIE:   Your Honour, I should say ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   On every mention.

 

MR McKECHNIE:   ‑ ‑ ‑ I’ve had a look at the transcript.  After your Honour had made the orders for an adjournment, there was a heated exchange between Mr Mancini and your Honour towards the end where Mr Mancini says that your Honour can recuse herself now because your Honour said no.  Mr Mancini says:

 

You can’t interfere.

 

Your Honour says:

 

I will not recuse myself.

 

And Mr Mancini says:

 

Well, I recuse your – I am making an application now.

 

And your Honour said:

 

I’m refusing it.

 

So there was – there was an exchange.  And if Mr Mancini is saying that that very brief exchange amounts to his application for a recusal ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   He seems to be saying ‑ ‑ ‑

 

MR McKECHNIE:   ‑ ‑ ‑ with no evidence and submissions, then ‑ ‑ ‑

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ that it does amount to an application for recusal which would then mean that I’d effectively allow him to appeal from my decision, which doesn’t make sense.  But anyway, let’s just get back to basics, shall we?

 

MR MANCINI:   I’m doing that, your Honour.

 

MAGISTRATE TINA PREVITERA:   You were given directions.  Mr Pauga was given directions ‑ ‑ ‑

 

MR MANCINI:   Which [indistinct]

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ on the ‑ ‑ ‑

 

MR MANCINI:   Of which there is no power.  Will your Honour hear me about the power to do so?

 

MAGISTRATE TINA PREVITERA:   Well, I’m satisfied there is power.

 

MR MANCINI:   Can your Honour publish reasons for that?

 

MAGISTRATE TINA PREVITERA:   It’s on record.

 

MR MANCINI:   No, no.

 

MAGISTRATE TINA PREVITERA:   It’s on record.

 

MR MANCINI:   Being satisfied by way of a statement or conclusion, your Honour, is not the statement of reasons.  You cannot provide the reasons identifying the provisions of Extradition Act which enable your Honour to make those orders and provide reasons so that we can indeed understand where we’re going.

 

MAGISTRATE TINA PREVITERA:   Mr Mancini, I have the transcript for the 12^th of February.  I will give you a copy of the transcript for the 12^th of February.  It contains the answers to the questions you just asked which you asked on the 12^th of February and which I answered.

 

MR MANCINI:   Yes.  And ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   And I will provide you with a copy of that transcript.

 

MR MANCINI:   Yes, thank you, your Honour.  So ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   I’ll direct my Clerk to give it to you.

 

MR MANCINI:   So, your Honour, two things arise from that.  Firstly, both your Honour and Mr McKechnie ought to apologise to me for suggesting that I got it wrong about what was said on the 12^th of February and I request that apology from my learned friend firstly because he’s corrected himself.

MR McKECHNIE:   I corrected myself.  I said ‑ ‑ ‑

 

MR MANCINI:   Yes.  And your Honour did the same.  Your Honour suggested that what I was saying was incorrect when I was correct.  So your Honour needs to accept and apologise for that and I ask for your Honour to do so.

 

MAGISTRATE TINA PREVITERA:   Well, I apologise.

 

MR MANCINI:   Thank you.  So your Honour, nothing was said on the 12^th of February, I suggest, about submissions about – from ourselves about the power and – to make such orders.  And no – no power has been identified, not one Section of the legislation has been identified.  And it all ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   There was a hearing before Magistrate Merrin which determined those matters.  Okay.

 

MR MANCINI:   No, it didn’t.  No.  Sorry, your Honour, that’s wrong.  That is wrong.  What matters ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, take it elsewhere, Mr Mancini.

 

MR MANCINI:   No, no, no. I’m taking it here.

 

MAGISTRATE TINA PREVITERA:   Take it elsewhere.

 

MR MANCINI:   Well, your Honour wants to ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   I cannot hear an appeal which is effectively what you’re asking me to do against a fellow Magistrate.  I cannot hear an appeal from my own directions.

 

MR MANCINI:   I’m not ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   You need to take these concerns to another place.  This is not ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ the place.

 

MR MANCINI:   Well, your Honour, before we understand what we’re obliged to do, it would make sense for us to know ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   I can’t give you advice ‑ ‑ ‑

 

MR MANCINI:   No, no, no, no, no.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ about what it is ‑ ‑ ‑

 

MR MANCINI:   I – no, your Honour.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ that you should be doing.

 

MR MANCINI:   I’m not asking for advice because it would gratuitous and therefore of little utility.  What I’m asking for your Honour to do is discharge your duties and to do so by identifying the power that you’re purporting to exercise.

 

MAGISTRATE TINA PREVITERA:   I intend repeating myself, Mr Mancini.

 

MR MANCINI:   Yes.  Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   My Clerk will give you a transcript of the 12^th of February and I would invite you to reacquaint yourself with what happened on that day.

 

MR MANCINI:   So your Honour, in the Extradition Act, I’d like to take your Honour to it for the purposes of these orders and understanding that nothing has been advanced by Mr McKechnie in support of any conception that your Honour has such a power.  Nothing has been identified as arising in the Extradition Act in – as identifying such a power and nor has your Honour identified such a power.  So I’d like to make my submissions about that question in – in the face of the failure to [indistinct] the strategic forensic failure of my learned friend to identify such a power.  And for your Honour to understand that until your Honour identifies a power rather than an amorphous statement based on some submissions of Mr McKechnie, which we haven’t had an opportunity to make submissions about, then we will know whether your Honour can or should exercise that power and what would be the terms of it.  Because the first question is:  should you exercise a power, is it a power in existence and what is the discretion that arises in respect of that power.

 

Now, before your Honour made any orders, I would have wanted to have been heard.  We still haven’t been heard on any of those things and I have submissions to make.  And your Honour has studiously precluded me from making submissions about what we’d like to say about these questions, about these directions, about these affidavits and about the information.  Because we say, first of all ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   What do you want to say?  Could you just say it?  Just say it.

 

MR MANCINI:   Well, your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Just say it.

 

MR MANCINI:   I didn’t come – yes, thank you.  Can I make those submissions?

 

MAGISTRATE TINA PREVITERA:   Please.

 

MR MANCINI:   Yes.  So today, your Honour allows me to do that for the first time.  I didn’t come here for anything other than a mention, so ‑ ‑ ‑

MAGISTRATE TINA PREVITERA:   Just please speak, Mr Mancini.  I don’t want this – you know, there’s a mention.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   I want you to speak.  You’re begging me to make submissions but somehow, you’re refusing to do it.

 

MR MANCINI:   No, no, no.

 

MAGISTRATE TINA PREVITERA:   Just do it.

 

MR MANCINI:   No, your Honour.

 

MAGISTRATE TINA PREVITERA:   Make submissions.

 

MR MANCINI:   So your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Starting now.

 

MR MANCINI:   So I’m making those submissions.  Usually, when someone is afforded an opportunity of a fair hearing ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   These are not submissions, Mr Mancini.

 

MR MANCINI:   Aren’t they?  I’ll make them anyway.

 

MAGISTRATE TINA PREVITERA:   Make these submissions upon which you rely.

 

MR MANCINI:   I’m making those submissions.  If – does your Honour not want to hear my submissions?

 

MAGISTRATE TINA PREVITERA:   I’m inviting you.

 

MR MANCINI:   Thank you.  Could I ask your Honour not to interrupt unless your Honour has a question or a statement arising from my submissions because the proper course is for me to make my submissions.  What weight your Honour will attach to them will ultimately ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Just make them.

 

MR MANCINI:   Well, yes, I’m trying to, your Honour, but your Honour keeps stopping me by ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Because you’re not making them.

 

MR MANCINI:   I am making them.  I’m making my submissions.  Will your Honour listen and allow me to do so?

 

MAGISTRATE TINA PREVITERA:   Just make them.  I will listen.

 

MR MANCINI:   Yes, thank you.  So your Honour, usually, in the context of the allocation of a hearing on something such as submissions that go to the question of a power, jurisdiction or statutory interpretation, one would give fair notice [indistinct] in issue to be engaged upon and time allocated for that hearing.  Your Honour has not allocated any time, as usual.  At no stage have we ever had an allocation of any time in any proceedings thus far, at all, in the usual way.  That’s usually, in my experience, counsel would be asked, “Okay, how much time ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Can you address me instead of the gallery?

 

MR MANCINI:   I am addressing your Honour.

 

MAGISTRATE TINA PREVITERA:   Thank you.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   Thank you.

 

MR MANCINI:   Yes, thank you.  Is there a suggestion I’m not addressing your Honour?

 

MAGISTRATE TINA PREVITERA:   Well, you keep turning around.

 

MR MANCINI:   No, I – I ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   You keep turning around ‑ ‑ ‑

 

MR MANCINI:   I looked ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to address the gallery.

 

MR MANCINI:   I’m allowed to ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   They’re not the ones making the decision here ‑ ‑ ‑

 

MR MANCINI:   No, no.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ I’m the one ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ making the decision.  So would you please address ‑ ‑ ‑

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ your submissions to this wall.

 

MR MANCINI:   Yes.  So your Honour, usually, one would identify the time to be allocated for a hearing in the usual way.  How much time do the parties require?  We haven’t been given that time and we haven’t been told to come to prepare for such a hearing.  So your Honour – your Honour wants me to make it up on the fly and on that basis, your Honour, that’s a matter of unfairness.  I want the proper structure of time if your Honour is to make a meaningful hearing of this and receive meaningful submissions so as to make a meaningful determination.  And so, your Honour, I will make my submissions to the extent that I can but I will be seeking an adjournment at the end of my submissions for further time to make further submissions. 

 

Your Honour, we prepared a very complex document in respect of the submissions under these extradition objections.  Nobody has suggested that they are a construction or a fiction or unworthy of consideration.  They are – they are very important.  We then – your Honour, on the strength of that, in part, gave a direction about providing further information.  Again, without hearing submissions about that, we said we’re not required to and we don’t want to for various reasons which were directorially dismissed without any regard to anything.  In other words, when I made certain statements in a rather simplistic and hostile fashion – but my learned friend made the statement to the effect that my submission should be dismissed.

 

Your Honour made some observation about that.  I don’t have the transcripts about that at the moment but he was again reflecting upon the veracity of what I was putting.  Your Honour, we then prepared what we could and that was called the [indistinct] document.  I’d like to speak to that document so your Honour has a better understanding of what we’re trying to do.  And that’s going to require some time.  I’m not ready to speak to it fully but I’ll do the best I can because your Honour’s forcing me to do so.  Not doing so in a cooperative sense.  Again, your Honour is doing this, sitting there as a Magistrate jurisdictional officer in a court.  Our point is your Honour can’t do anything like this at all and your Honour is purporting to do so.  Your Honour is making directions about finding affidavits.  There’s no concept of an affidavit in the Extradition Act.  Not one single thing.  There’s no concept of directions or orders in the Extradition Act.  Not one single thing, your Honour, at all. 

 

This is not an extradition proceeding.  This is a proceeding before your Honour as a judicial officer in a court and we object to that.  And we object to that most strenuously.  And everything that’s been done in this matter as a result of your Honour presiding has not been done by your Honour in orders and directions.  It’s been done by somebody else, some functionary of the Registry on its orders – and not your Honour’s orders, the orders of a court.  Have a look in the file.  Every single one of those documents are court orders.  Prohibited, not a role to play whatsoever.  Let me make that clear, your Honour.  Your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   What’s your authority?

MR MANCINI:   The authority is your Honour is not a court and nor has the Brisbane Magistrates Court got anything to do with this process whatsoever.

 

MAGISTRATE TINA PREVITERA:   What’s your authority that says the Magistrates Court is not a court?

 

MR MANCINI:   Your Honour – no, no, no.

 

MAGISTRATE TINA PREVITERA:   That’s what you’re saying.

 

MR MANCINI:   An extradition – precisely the problem.  Extradition proceedings are not in the court and your Honour has been doing as a court.  We [indistinct] as guards under the coat of arms every single thing has been as a Magistrate, judicial officer.

 

MAGISTRATE TINA PREVITERA:   And what’s your authority that says that that’s not the procedure?

 

MR MANCINI:   Well ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   What’s your authority?

 

MR MANCINI:   I’ll give it to your Honour.  It’s all the authorities with which Extradition Act by a Magistrate are heard and determined.  It’s by persona designata, not – sorry, in a personal capacity.  Section 46B of the Extradition Act makes that plain.  Your Honour hasn’t even had regard to that.  Your Honour hasn’t even had regard to the submission I want to make about all that.  Everything your Honour has done and every other Magistrate has done leading up to today, including today, comes from a judicial officer garbed in this fashion exercising a judicial function representing to the world at large that you’re a court and a judicial officer.  And then ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   But who am I really?

 

MR MANCINI:   You’re just Tina Previtera, Magistrate assigned by an arrangement between the Commonwealth and Queensland to process extradition proceedings.  Yes.  And it’s how you have to conduct the proceeding.  Your Honour hasn’t even bothered to listen to us about that.  Your Honour just goes along, processes it just like you do.  Processes it just like a court.  Every time we come here, your Honour, we’re in a court.  We’re not – has your Honour ever processed, for example, a search warrant for the Commonwealth?  Your Honour doesn’t do it – your Honour does it as a persona designata, not in a court in the – open to the public in a hearing, garbed in the fashion that your Honour is garbed, with the coat of arms, finalised by way of court seals and registries, signatures, etcetera etcetera. 

 

Every single one of these things in the Brisbane Magistrates Court has failed.  The authority, your Honour, is Queen Victoria Memorial Hospital.  It’s in our document.  Your Honour should – I invite your Honour to read the case.  Queen Victoria Memorial Hospital against v Thornton [1953] HCA 31.  Sorry, 11.  So your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   So is your argument that there can never be extradition proceedings brought in any court?

 

MR MANCINI:   That’s right.  It ‑ ‑ ‑

 

MR FINLAYSON:   Yes.

 

MR MANCINI:   With a Magistrate.  Yes, that’s right.  Can’t be done.  Sorry, that’s what your Honour is doing.  That’s what Mr McKechnie keeps asking you to do.  Court do this, court do that.  Relies upon, remand orders, etcetera etcetera.  I’ll take you through it, your Honour, but give me the chance and the opportunity to do so because if your Honour wants to make sure that you’ve got the power to do it, there will not be [indistinct] make sure you have.  And we are putting this seriously to your Honour because it’s a serious issue.  Because if your Honour hasn’t got the power, whatever your Honour ends up doing is going to be a failure.  And if your Honour hasn’t got the power, then stop it immediately.  Every single order is not an order of your Honour.  Every single order is not an order of Tina Previtera, Magistrate in Queensland.  Every single order is your Honour garbed as a Magistrate judicial officer in the court, in public.  Then finalised by way of a sealed document not of your Honour.  Your Honour hasn’t signed a single order in this case.  Not one single order has been made by you.  We’ve ended up and ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Who’s been making them?

 

MR MANCINI:   Who’s been publishing them?

 

MAGISTRATE TINA PREVITERA:   No.  Who’s been making them?

 

MR MANCINI:   The Magistrates Court of Queensland.  Have a look at the file, your Honour.  They’re there.

 

MAGISTRATE TINA PREVITERA:   And in what guise do they appear here today?

 

MR MANCINI:   In the file.

 

MAGISTRATE TINA PREVITERA:   So it’s the paper that’s ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ making the orders.

 

MR MANCINI:   Every time we come here, your Honour, it’s – the court is in session.  The court is adjourned.  Every little detail about this process is not your Honour, Tina Previtera, Magistrate, persona designata.  Your Honour comes in and we come in in a court, during a court session.  We don’t adjourn for your Honour to be seized of a matter under extradition proceedings.  Your Honour just continues and we want to make submissions and address all of that.  Your Honour allows us to do so.  And give us the time to do so because it’s – it is fundamental to the very heart.  And we’ve mapped this out.  Your Honour was mapped – was mapped out with these questions in our submissions.  Is your Honour going to ignore those submissions?  No, your Honour can’t ignore submissions.  Your Honour is the only person charged with determining your Honour’s jurisdiction of this threshold stage.  Let’s have a hearing about that. 

 

Yes.  And your Honour, everything – everything that happens in this – in this place is as if it’s a court.  Everything to do with Mr Pauga is done not by your Honour in remands and so forth in bringing him here, it’s done by the Magistrates Court of Queensland in Brisbane.  Tipstaffs tell people not to do things because they’re in the court, not to take photos.  It’s none of their business because it’s not a court.  It’s – the only business it is is your Honour, without regard, without the coat of arms, then determining how this whole thing is going to go.  First, your Honour identifies it, tells us what the role [indistinct] should be, “Well, shall we go about it like this, what do you think,” etcetera.  We’d like to say you can’t make orders for submissions.  You can invite us to do so, you can request us to do so because your Honour is no different to a functionary of the Commonwealth, let’s say, sitting in their office, processing applications for visas.  Processing applications like the Attorney-General or Minister does for extradition or deportation or anything else like that.  Your Honour is not a judicial officer here.  Stop being one.

 

This is a constitution of issue, your Honour.  It’s an issue to do with the interpretation of the Extradition Act, the function of this court, the Magistrates Court of Queensland and the function of your Honour, Magistrate Previtera as a judicial officer.  Those are constitutional law issues and – and your Honour, we want to articulate that.  And the first step would be ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Please do.

 

MR MANCINI:   Yes.  Well, I’m trying to, your Honour.  We want – therefore, on that basis, we need to give notices under the Judiciary Act.  So your Honour, your Honour can ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   So why haven’t you done that?

 

MR MANCINI:   We just did.  We’re doing that now, your Honour, because your Honour is listening for the first time.  But your Honour hasn’t taken up with us, “What do you say about the submissions you made back in December?  What do you want me to do about them?”  Your Honour hasn’t asked anything in the normal exchange.  You see, your Honour is not presiding in hierarchical place on the dais there in the extraditial proceedings.  Your Honour has to get down here and just be the functionary – the person, Tina Previtera, Magistrate.  Because that’s all you are in extradition proceedings.  That’s all you can ever be.  You can’t be elevated, you can’t – if I do something, your Honour can’t sanction me.  Your Honour sanctioned Mr Pauga by requiring him to file affidavits.  Your Honour can’t do that.  There’s no power to do.  And being lulled into thinking that by my learned friend Mr McKechnie is the very trap that we don’t want you to embark upon.  And we tried to stop but we get rolled over, prevented and precluded.  Excuse me a moment.

 

You see, your Honour, the application under Section 19 has not been made to a Magistrate.  It’s not been made to your Honour.  We want to make submissions about what Section 19 properly requires.  What that application was, your Honour, was made to the Magistrates Court of Queensland when Magistrate – her Honour Magistrate Previtera ‑ ‑ ‑

 

MR FINLAYSON:   Merrin.

 

MR MANCINI:   Merrin, sorry.  Again garbed in the same fashion on the dais with the coat of arms and all the other aspects of a court was presiding.  So your Honour, there’s never been, we want to say, such an application.  However, we’d like to be heard about that and make those submissions properly.  We haven’t been given a chance to do so.  I am striving to at least put some things to your Honour on the hoof because your Honour embarks upon this aspect.  The only thing that your Honour has to do that equates in the context of extraditial proceedings with judicial functions is to afford natural justice.  And we haven’t been given any of that.  We haven’t been given anything that remotely approaches an opportunity to make submissions.

 

MAGISTRATE TINA PREVITERA:   I’m going to have to interrupt you, Mr Mancini, because you did ask for liberty to apply on the occasion of the 12^th of February and I gave you liberty to apply.  And I enlarged that liberty to apply to make it clear that each of the parties has liberty to apply to the court for a mention of an application on the giving of seven days’ notice ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ in writing in the form of the filing of a written application and supporting affidavit material to be provided to the other side.  That was – that occurred on the 23^rd of February and no notice has been given to – by either party to the other in the form of an application and supporting affidavit material which is how the matter would come before the court.  So there’s been no applications by you ‑ ‑ ‑

 

MR MANCINI:   Or Samoa.

 

MAGISTRATE TINA PREVITERA:   Or Samoa.

 

MR MANCINI:   Yes, indeed.  So ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   That’s correct.

 

MR MANCINI:   So your Honour, about identified some of the matters that should be considered.  Whether your Honour wants an application or not, in my submission, it does not matter.  Your Honour has to decide these questions.  We can do that, let’s do it.  Let’s do it with a proper hearing on these issues.  Because your Honour, these are threshold issues.  They got to the heart of the proceedings, the heart of the process, the validity of any orders and whether any of this process to date has been valid and can continue.  So your Honour, these are very important questions.  These are very important questions of which there are legal issues with outlines.  They are before the court.  And your Honour, we have been working not his matter in that context and there are a number of matters.  And we’d like to explain all of that. 

 

So your Honour, one of the things that I wanted to explain is the roadmap and why we needed time.  So your Honour, we say that this court, the Magistrates Court of Queensland in which your Honour is presiding as a judicial officer is now concerned with a matter arising under the constitution or involving its interpretation.  And it’s the duty of this court not to proceed in the course unless and until the court is satisfied.  Now, notice of the course, the constitutional course specifying the nature of the matter has been given to the Attorney-General of the Commonwealth and the States and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General on the question of intervention or removal of the course to the High Court.  That’s in Section 78B.  Doesn’t matter that we haven’t done it.  We now say it and your Honour statutorily is prohibited from doing anything subject to such notice being given and the Attorneys-General deciding whether they want to intervene and then deciding what their intervention will be.

 

So your Honour, it matters not.  We could have made that submission at any time, now or in the future.  Once it’s made, once it’s identified – and we say we made it, your Honour, in our submissions back in December.  And instead, what we’ve been told to do is [indistinct] which we tried to respond to by the best we can, your Honour.  But it is now at that threshold point where we have to say that the whole process in this court by your Honour as a Magistrate judicial officer in the Brisbane Magistrates Court of Queensland has to stop.  And your Honour can rule about that or someone else can rule about that.  But we – we’ll say it now because your Honour, we’ve identified it, we’ve repeated it.  My learned friend knows about it.  He’s been on notice since December.  He studiously has avoided it, asking the court to make a determination about that jurisdictional question. 

 

And your Honour, it – the whole of these proceedings before every Magistrate as reflected in transcripts and every document emanating from such proceedings are manifestations and statements that they’re in court.  Every single one of them.  This court, the Magistrates Court of Queensland, this Magistrate, her Honour Magistrate Previtera, judicial officer, have no business whatsoever in this matter.  Have no business involving themselves in this matter because, your Honour, any arrangement for doing so doesn’t arise because your Honour’s a court – sitting in a court, garbed as a Magistrate with a seal [indistinct] fixing stamps.  It arises, your Honour, because of an arrangement.  An arrangement between the State of – the Governor of Queensland and the Governor-General of Australia.  That arrangement is not from any statute other than Section 45 of the Extradition Act which identifies such arrangements can be made. 

 

But it means that your Honour is just here as a private citizen, nothing point.  So please read the cases about persona designata, please identify the restrictions on your Honour’s powers and functions as a result.  Please understand that your Honour can’t do these things and can’t then publish, make or otherwise do things as orders of this court in [indistinct] respect, remands which then become court orders.  Remands that then find their way into Registrars’ forms. 

 

Your Honour, furthermore, Samoa has never said that it has made any application to Tina Previtera, Magistrate in a personal capacity.  And we say that’s one of the threshold questions that arises as a matter of interpretation.  Your Honour hasn’t received or been asked or been told we’re making an application to you as persona designata under the Extradition Act.  Rather, they point to something else that happened somewhere else which was – and we’ll give evidence about this in a court before a Magistrate judicial officer.  So your Honour, we have to say that this question has to be decided.  And you can’t say that impressionistically or in the absence of proper and meaningful submissions.  We make this submission very seriously and we made it back in December.  And we identified the principles and we identified the case law.  And so we’re quite happy to engage in that exercise with a proper hearing being assigned as a threshold question to anything further being done. 

 

Because if your Honour’s satisfied that what we say is correct, that’s the end of you as a Magistrate, the end of the Brisbane Magistrates Court, the end of these extradition proceedings and everything that’s been done to date.  That’s it.  It’s all over, it’s all invalid.  It’s gone.  End it as soon as your Honour can hear a proper and meaningful submission and make a proper and meaningful hearing and determination with the benefit of a fair hearing with natural justice and the time allocated to doing that rather than saying, “Right, get on with it now.”  Do it like a proper persona designata sitting in their office saying, “Okay, yes, hello there, Mr [indistinct] yes.  Okay.  What shall we do today?  Okay.  Well, let’s have a look at this issue.  Let’s sort this issue out.”  It’s not an adversarial, hierarchical system, your Honour.  I don’t have to call you anything like your Honour in such a situation.  I can call your Honour Tina, Ms Previtera.  It matters not because you’re not here as a Magistrate exercising the functions of a Magistrate.  You’re here because you’re a Magistrate but in a personal capacity. 

 

And the cases and the entire history of – Mr McKechnie knows it very well.  He’s practiced all over the place, you know.  He knows al the cases.  He cannot contradict what I say about that.  But here we have, your Honour, at every single stage – and we want to be heard about that.  We’ve got all the transcripts and we’ll provide them, your Honour.  Where everything that’s said and done, every form and every order comes under the seal premature of somebody that’s not you or any other Magistrate.  Some other thing or the proper officer.  It’s got nothing to do with anything to do with extradition proceedings.  And under the seal of the Magistrates Court of Queensland with all of their other features.  Again, nothing to do with you, Tina Previtera, an individual no different to anyone else in this courtroom making decisions about Mr Pauga. 

 

So before your Honour does anything, let’s make sure your Honour knows what is happening.  And your Honour, in my submission, nothing has manifested that indicates that.  Rather, every time Mr McKechnie comes on – and he does this.  And I’ll – even conceding does it by mistaken, he always said the court should do this, the court should do that.  I resile from the use of that term.  Mr McKechnie does it perhaps deliberately or perhaps negligently.  He might be negligent ‑ ‑ ‑

 

MR McKECHNIE:   Your Honour, I object.  I don’t need to stand for this.  This is just nonsense.

 

MR MANCINI:   Well, your Honour, he may be doing it because it’s in a court.

 

MR McKECHNIE:   If Mr Mancini ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Mr ‑ ‑ ‑

 

MR McKECHNIE:   ‑ ‑ ‑ wants to talk about things that I’ve said, he can pay for the transcript and submit it.

 

MR MANCINI:   Yes.  I’ll take him through it, then, your Honour.  I’ll take you through it.

 

MAGISTRATE TINA PREVITERA:   Yes, refer to the transcript.  I should indicate to you that I have to withdraw my offer of providing you with a copy of the transcript because Auscript – there’s no power in me, I have no power to order that you be provided with a copy ‑ ‑ ‑

 

MR MANCINI:   No.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ of the transcript.

 

MR MANCINI:   And also, Auscript don’t even provide it to the court, your Honour.  Not to you, Tina Previtera.  It’s the court that gets is, not you.

 

MAGISTRATE TINA PREVITERA:   Now ‑ ‑ ‑

 

MR MANCINI:   We are – we are ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ can you address Mr McKechnie’s quite rational, reasonable request that if you’re going to make allegations against him, you refer to the transcripts.

 

MR MANCINI:   Yes, all right.  Your Honour, 11^th of September 2020, page 1, line 20, McKechnie refers to court.  Mr McKechnie on the 3^rd of September ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   You’re not going to go through everything when he refers to the court.

 

MR MANCINI:   Your Honour just asked me to.

 

MAGISTRATE TINA PREVITERA:   I think – well, I withdraw that, then, because I am fully aware that he refers to the court as the court and we can leave it at that.

 

MR MANCINI:   Okay.  Well, then Mr McKechnie’s upsettedness about the fact that that’s exactly what he does, so ‑ ‑ ‑

 

MR McKECHNIE:   My objection was to the insinuation of the negligence, your Honour.  And I have submissions ‑ ‑ ‑

 

MR MANCINI:   Well, then it’s deliberate because we’re in a court.  He says it’s a court because he makes submissions to a court.

 

MAGISTRATE TINA PREVITERA:   Because it is ‑ ‑ ‑

 

MR McKECHNIE:   Your Honour, can I ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ a court.

 

MR MANCINI:   Because it ‑ ‑ ‑

 

MR McKECHNIE:   ‑ ‑ ‑ ask [indistinct]

 

MR MANCINI:   ‑ ‑ ‑ is a court.

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR McKECHNIE:   Please.  Two points.

 

MR MANCINI:   [indistinct]

 

MR McKECHNIE:   If this is a constitutional issue, like my friend says it is, your Honour just haven’t have power to decide it.

 

MR MANCINI:   No.

 

MR McKECHNIE:   You just don’t.  So your Honour should – well, Mr Mancini should, as has been open to him from day dot, to make an application to the Federal Court with the appropriate notice ‑ ‑ ‑

 

MR MANCINI:   [indistinct]

 

MR McKECHNIE:   ‑ ‑ ‑ of the orders that are to be made.  If he does, he’s going to run into two problems.  The first is the High Court has determined the constitutionality of judicial officers sitting in an administrative capacity ‑ ‑ ‑

 

MR MANCINI:   Well ‑ ‑ ‑

 

MR McKECHNIE:   ‑ ‑ ‑ for the last 26 years, starting in a case called Grollo v Palmer.  And your Honour might recall that that was a decision about Federal Court judges sitting in an administrative capacity, issuing wire-tap warrants.  And precisely these submissions were made.  This sense that, well, if you stood in the back of the court and observed what was going on, he would expect that it was a court [indistinct] a judge, the submissions that were made was that it would be a charade and that it’s somehow unconstitutional.  And the court ‑ ‑ ‑

 

MR MANCINI:   [indistinct]

 

MR McKECHNIE:   ‑ ‑ ‑ and particularly Justice Brennan said no and imposed requirements on constitutionality that had nothing to do with public perception or whether or not the particular judge was robed or sitting on a high Magistrate Tina Previtera or low Magistrate Tina Previtera or whatever.  That decision was then upheld in O’Donoghue and Ireland and Zentai and the Republic of Hungary and Williams and the United States and another which was three cases that went before the High Court in 2008.  But where precisely this question was determined again and the High Court upheld, on those same principles, the constitutionality of Magistrates acting in a capacity as persona designata and nowhere in any of that authority does it say that the matters that my friend – that my friend says.  So even ‑ ‑ ‑

 

MR MANCINI:   No.  Can we short ‑ ‑ ‑

 

MR McKECHNIE:   ‑ ‑ ‑ it’s just ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ circuit – can we short-circuit that because ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   No.  No.

 

MR MANCINI:   ‑ ‑ ‑ it’s got nothing to do with ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   No.

 

MR MANCINI:   ‑ ‑ ‑ those – those issues.

 

MAGISTRATE TINA PREVITERA:   If you can’t produce an authority ‑ ‑ ‑

 

MR MANCINI:   I just did.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ against what Mr McKechnie is saying ‑ ‑ ‑

 

MR MANCINI:   Well, your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ then there’s no – then I’m not going to be hearing any more submissions.

 

MR MANCINI:   All right.  Well, then, your Honour, first of all, all of those cases are to do with the investiture in the Magistrate of the functions under the Extradition Act.  We don’t have that situation here.  It’s the diametric opposite of that puzzle.

 

MAGISTRATE TINA PREVITERA:   Mr Mancini, that is a nonsensical submission.

 

MR MANCINI:   Well, then, your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   If you don’t know ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ I’ll continue ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ where you are ‑ ‑ ‑

 

MR MANCINI:   No, no.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ and what you’re looking at and who you’re looking at ‑ ‑ ‑

 

MR MANCINI:   I’m looking at ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ then I can’t help you.

 

MR MANCINI:   No.  I – I – I ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   All right.  You have to give me a case law authority that goes ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ against those long standing High Court authorities that support your argument.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   You will not find one because there isn’t one.  Because what you’re saying ‑ ‑ ‑

 

MR MANCINI:   So your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ is nonsensical.

 

MR MANCINI:   ‑ ‑ ‑ has made up your mind about that.

 

MAGISTRATE TINA PREVITERA:   Well, I’m happy to have it changed if you produce an authority ‑ ‑ ‑

 

MR MANCINI:   Well, your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ that is ‑ ‑ ‑

 

MR MANCINI:   Yes.  So your Honour says it’s nonsense and there isn’t such an authority ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   And I’m happy ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ without hearing it.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to be corrected if you can put an authority before me instead of this waffle.

 

MR MANCINI:   Well [indistinct]

 

MAGISTRATE TINA PREVITERA:   All right.  I want you to make proper submissions.

 

MR MANCINI:   Yes.  Well, I’m making ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Proper submissions.

 

MR MANCINI:   I’m making submissions.

 

MAGISTRATE TINA PREVITERA:   Supported by ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ authority.

 

MR MANCINI:   I’ll do that, your Honour.

 

MAGISTRATE TINA PREVITERA:   All right.  So what’s your authority?

 

MR MANCINI:   Your Honour wants me to say it now?

 

MAGISTRATE TINA PREVITERA:   Well, you’ve said it before.  I’ll take a copy of – I didn’t make a note of it but ‑ ‑ ‑

 

MR MANCINI:   There’s other authorities. 

 

MAGISTRATE TINA PREVITERA:   Well, give them to me.

 

MR MANCINI:   Well, thanks, your Honour, for helping me.  I’ll go and get them and give them to your Honour.  Your Honour can’t just ... clap your hands and ask me to do it right now on the spot.  Surely not.  I will produce them.  Will your Honour give me the chance to do so?

 

MAGISTRATE TINA PREVITERA:   Yes.  On the 8^th and 9^th of July.  They’re the hearing dates.  Liberty to apply remains so far as the parties are concerned and I’ll just remind the parties about that.  Just to be clear that on the 23^rd of February ‑ ‑ ‑

 

MR MANCINI:   [indistinct]

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ I gave – I expanded upon the liberty to apply which I had given on the previous court date.

 

MR MANCINI:   According to those orders.

 

MAGISTRATE TINA PREVITERA:   So that ‑ ‑ ‑

 

MR MANCINI:   Your Honour, that liberty could only have been in respect of those orders, not as a general liberty.  And that was my understanding.

 

MAGISTRATE TINA PREVITERA:   No, it was a general liberty ‑ ‑ ‑

 

MR MANCINI:   Well, your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to apply.

 

MR MANCINI:   ‑ ‑ ‑ that was my understanding.

 

MAGISTRATE TINA PREVITERA:   No.  Well, you had an incorrect understanding.

 

MR MANCINI:   Well, indeed, your Honour.

 

MAGISTRATE TINA PREVITERA:   Liberty to apply has been an expression used in the law for centuries.

 

MR MANCINI:   Does your Honour recall the reluctance to make that order and give liberty to apply?

 

MAGISTRATE TINA PREVITERA:   Yes.

 

MR MANCINI:   That’s right.

 

MAGISTRATE TINA PREVITERA:   And then I acceded ‑ ‑ ‑

 

MR MANCINI:   Yes.  Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to your submissions and I gave liberty to reply.  And I expanded upon it on the next occasion.  And that liberty to apply is a general ‑ ‑ ‑

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ liberty to apply on the basis that there are rules by which the liberty to apply will be exercised.

 

MR MANCINI:   Which rules are they?

 

MAGISTRATE TINA PREVITERA:   My direction is that the liberty to apply is to be exercised on the giving of seven days’ notice in writing in the form of a written application and supporting affidavit material to be provided by the party exercising the liberty to the other party.

 

MR MANCINI:   In accordance with which forms, your Honour?   We don’t ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   In accordance with my direction.

 

MR MANCINI:   Well, there are no forms.  Does your Honour have forms?

 

MAGISTRATE TINA PREVITERA:   No.

 

MR MANCINI:   There – which – we don’t have any forms.

 

MAGISTRATE TINA PREVITERA:   I didn’t mean a – I didn’t mean – in the form of.

 

MR MANCINI:   Yes.

 

MAGISTRATE TINA PREVITERA:   Not in the court ‑ ‑ ‑

 

MR MANCINI:   Your Honour ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ specified legislation.

 

MR MANCINI:   Your Honour – your Honour as a persona doesn’t receive affidavit evidence.

 

MAGISTRATE TINA PREVITERA:   Mr Mancini ‑ ‑ ‑

 

MR MANCINI:   There’s no power to produce ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   What orders are you seeking today, Mr Mancini?  What orders are you seeking today?

 

MR MANCINI:   For the Section 39B notices to issue that – under the Judiciary Act so that the argument can take place fairly to all of the Attorneys-General.  As my learned friend identifies, those cases that he’s talked about which are the converse of this situation ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   So explain these notices to me.  What are you saying?

MR MANCINI:   I’ll read it out again, your Honour.  It’s under Section 39B of the Judiciary Act.  Your Honour just seems to know that we can give the notices and we’ll give them to the Attorney-General.  We’ve done that before in other cases and ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Well, that’s not going to interrupt the dates of hearing on the 8^th and 9^th of July.  That’s sufficiently far down the track that you can issue your notices.  You can ‑ ‑ ‑

 

MR MANCINI:   Thank you.

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ issue whatever you like.

 

MR MANCINI:   Yes.  Thank you.  Thank you, your Honour.

 

MAGISTRATE TINA PREVITERA:   But the hearing dates I propose setting for the 8^th and 9^th of July.  Liberty to apply remains.  It requires that each party give seven days’ notice in writing by way of application and supporting affidavit material.  That was the process – well, that was the general process and I make it clear that that’s a general order in relation to applications which parties seek to put before this court.  I note that the application for my recusal is not proceeding today.  I note that there are no submissions made in relation to certain steps indicated on the last occasion that material was being prepared ‑ ‑ ‑

 

MR MANCINI:   I make those ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   ‑ ‑ ‑ to file ‑ ‑ ‑

 

MR MANCINI:   ‑ ‑ ‑ submissions now, can I?

 

MAGISTRATE TINA PREVITERA:   No.  No.

 

MR MANCINI:   Was it ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   Today was the application for my recusal.  It’s not proceeding.  There are no other applications that have been put before the court in accordance with the general liberty to apply.

 

MR MANCINI:   Can I make submissions in any event?

 

MAGISTRATE TINA PREVITERA:   No.

 

MR MANCINI:   Why not?

 

MAGISTRATE TINA PREVITERA:   Because today was the application for recusal.  I’ve allowed you sufficient time, in my view, to make applications.  You’ve determined that you wish to make applications – sorry, submissions in relation to matters which I’ve already made comment on.

 

MR MANCINI:   Well, I haven’t ‑ ‑ ‑

 

MAGISTRATE TINA PREVITERA:   There was no notice given to the – Samoa in relation to what you intended to do today.  You have not proceeded with the opportunity to make an application for me to recuse myself and on that basis, I am going to set the matter for hearing on the 8^th and 9^th of July .  As I indicated, it will be listed initially in court 19 – sorry, court 18 and you’ll need to make your way to the court where I am.  I direct that Samoa file and serve any material upon which it relies for the hearing before 4 pm on the 10^th of June and I direct that Mr Pauga file and serve any material upon which he relies for the hearing before 4 pm on the 24^th of June.  The matter will then proceed to hearing on the extradition application on the 8^th, continuing on the 9^th of July and I will have Mr Pauga produced in person.  Thank you, gentlemen.

 

MR MANCINI:   Sorry, your Honour ‑ ‑ ‑

 

MR McKECHNIE:   Can you please order that he be remanded in custody.

 

MAGISTRATE TINA PREVITERA:   I have written that down.  I will say it very loudly so that the tape recording can hear me.  Mr Pauga is remanded in custody and he will be produced from custody in person on the first day of the hearing, which is the 8^th of July.  Thank you.

 

MR MANCINI:   And what time?

 

MAGISTRATE TINA PREVITERA:   Good afternoon.

 

MR MANCINI:   Sorry, what time?

 

MAGISTRATE TINA PREVITERA:   Nine am.

 

 

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