Section 106: Court’s powers on appeal under section 105
306.This section sets out the powers available to the High Court following an appeal under section 105.
307.The High Court may allow or dismiss the appeal or direct the judge to decide the relevant question again (subsection (1)). The relevant question is one that resulted in the person’s discharge. The appeal can only be allowed if the conditions in subsection (4) or (5) are met (subsection (3)). The conditions in subsection (4) are that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would not have been required to order the person's discharge.
308.The conditions in subsection (5) are that:
an issue is raised or evidence is available that was not raised or available at the extradition hearing;
the issue or evidence would have resulted in the judge making a different decision at the hearing; and
as a result the judge would not have been required to order the person's discharge.
309.Subsection (6) requires the High Court, if it allows the appeal, to quash the order discharging the person and remit the case back to the judge with a direction that he proceed as he would have been required to do if he had decided differently on the question that resulted in the person's discharge. If the court directs the judge to decide that question again and he decides it differently, the extradition hearing will continue from that point. If the judge makes the same decision then the appeal must be taken as have been dismissed by a decision of the High Court (subsections (7) and (8)).
