Director of Public Prosecutions for the Commonwealth v Kainhofer

The Extradition Act The operation of the Extradition Act was explained in the judgment of Brennan CJ, Dawson and McHugh JJ (with whom Toohey J agreed) in Director of Public Prosecutions for the Commonwealth v Kainhofer (1995) 185 CLR 528, at 533-538. See also Papazoglou v Republic of the Philippines (1997) 144 ALR 42 (FCA/FC), at 44-49. A convenient summary of the legislation was provided by the Full Court of this Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, at 389: "The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determine by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered." The United States of America is an "extradition country" for the purposes of the Extradition Act: s 5; Extradition (United States of America) Regulations, reg 3. Section 12(1) of the Extradition Act provides that, where an application is made in statutory form, on behalf of an extradition country for the issue of a warrant for the arrest of a person, and the magistrate is satisfied that the person is an "extraditable person in relation to the extradition country", the magistrate must issue a warrant for the arrest of the person. Section 6 defines the term "extraditable person" as follows: "6. Where: (a) ... (i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or ... (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country."

The expression "extradition offence" is defined in s 5 to mean, relevantly: "(a) in relation to a country other than Australia - an offence against a law of the country: (i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months...". A person who is arrested under a "provisional arrest warrant" (that is, a warrant issued under s 12) must be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested: s 15(1). The magistrate must remand the person in custody or on bail for such period as may be necessary, for proceedings under s 19 to be conducted: s 15(2). Section 19 provides as follows: "19. (1) Where: (a) a person is on remand under section 15; (b) the Attorney-General has given a notice under subsection 16 (1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. (2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate; ... (3) In paragraph (2)(a), 'supporting documents', in relation to an extradition offence, means: (a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant. ... (4) Where, in the proceedings: (a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and (b) the magistrate considers the deficiency or deficiencies to be of a minor nature; the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied. (5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. ... (9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall: (a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5); (b) ...; and (c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General." After a person becomes an eligible person, s 22(2) of the Extradition Act requires the Attorney-General, as soon as is reasonably practicable having regard to the circumstances, to determine whether the person is to be surrendered. The eligible person is only to be surrendered if a number of specified criteria are satisfied (s 22(3)). In any event, the Attorney-General has a discretion whether or not to surrender the person: s 22(3)(f). If the Attorney-General determines under s 22(2) that the eligible person is not to be surrendered to the extradition country, he or she must order the release of the person: s 22(5).

Procedural History On 9 April 1996, the Embassy of the United States made a request to the Attorney-General's Department for the extradition of the applicant. The request stated that the applicant was "wanted by the State of Ohio to stand trial on kidnapping, rape and attempted rape charges". In response to this request, a magistrate states that she was satisfied that the applicant was an "extraditable person" for the purposes of the Extradition Act in relation to the United States, and issued a warrant for the applicant's arrest under s 12(1) of the Extradition Act. On 20 June 1996, the Attorney-General issued a notice under s 16(1) of the Extradition Act. The notice recited, inter alia, that the Attorney-General was of opinion that the applicant was an "extraditable person" for the purposes of the Extradition Act, in relation to the United States. As contemplated by s 16(1), the notice stated that an extradition request had been received from the United States in relation to the applicant. On 7 August 1996, the learned magistrate commenced hearing proceedings under s 19 of the Extradition Act to determine whether the applicant was eligible for surrender. The evidence before the magistrate included an affidavit from an Assistant Prosecuting Attorney in Ohio, Ms Tarighati. That affidavit annexed a "Warrant to Arrest" in the following form:

"THE STATE OF OHIO ) 84-CR-364 Lake County , ss. ) COMMON PLEAS COURT To the Sheriff of said County: WHEREAS, The Prosecuting Attorney of said County has this day filed in this Court an information charging substantially that [the applicant] has failed to appear for the pre-trial and motion hearing as scheduled, although was duly notified of the date, time and place of the pre-trial and motion hearing, [There follows name, address and date of birth of the applicant.] These are therefore to command you to take the said [applicant] if found in your County, or if he shall have fled that you pursue after him in any other County in the State, and take and safely keep the said [applicant], so that you have his body forthwith before this Court, to answer the said charge, and be further dealt with according to law. Given under my hand and the seal of said Court, this 5th day of Oct. A.D. 1984 Andy J. Totin Clerk of said Court By Mary Ann Allen Deputy." The documents annexed to the affidavit included a copy of the indictment charging the applicant with the four counts, respectively, of kidnapping (two counts), rape and attempted rape, alleged to have occurred on 15 August 1984. The affidavit identified the indictment as No. 84-CR-364, a number matching that recorded in the Warrant to Arrest. The affidavit also annexed a "Journal Entry" for the Court of Common Pleas, Lake County, Ohio in case No. 84-CR-364. The case was described in the Journal Entry as follows: "State of Ohio Plaintiff vs [Applicant] Defendant" The Journal Entry was signed by Judge James W. Jackson and "approved" by the Prosecuting Attorney. It contained the following passages:

"CASE NO 84-CR-364 This day, to-wit: October 5, 1984, this cause came on for review. It is the opinion of the Court that on October 5, 1984...the matter came on for a pre-trial and a motion hearing of the within case against the defendant. It appearing to the Court that the defendant..., being charged with Kidnapping (2 counts), Rape and Attempted Rape, violations of Section 2905.01, 2907.02 and 2923.02 of the Ohio Revised Code, has failed to appear for the pre-trial and motion hearing as scheduled, although the defendant was duly notified of the date, time and place of the pre-trial and motion hearing. WHEREFORE, IT IS THE ORDER OF THIS COURT that the bond in the within case shall be and hereby is ordered forfeited in its entire amount. It is further ordered that a warrant directed to the Sheriff of Lake County for the arrest of the defendant, ..., be issued by the Clerk of this Court for service and return according to law." Ms Tarighati's affidavit recounted the history of the criminal proceedings against the applicant in Ohio. She stated that, having been charged with rape, kidnapping and attempted rape and having pleaded not guilty, the applicant had posted bond on 18 September 1984 and had been released from jail pending trial. Ms Tarighati further stated that the applicant failed to appear on 5 October 1984, for a pre-trial hearing and a hearing on the State's application to draw blood. Ms Tarighati continued:

"On that same date Judge James W Jackson of the Lake County Common Pleas Court ordered Mr Singh's bond forfeited and a bench warrant was issued for Mr Singh's arrest. This warrant is sufficient to bring Mr Singh before the Lake County Common Pleas Court to face the charges contained in Indictment Number 84-CR-364." During the hearing on 7 August 1996, counsel for the applicant submitted that the "Warrant to Arrest" was not "a duly authenticated warrant issued by the extradition county for the arrest of the person for the offence", within s 19(3)(a) of the Extradition Act. The reason given for that submission was that the document made no reference to any provision of the Ohio Revised Code and did not specify the nature of the charge covered by the document. Counsel for the DPP, in response to this submission, conceded that the Warrant to Arrest was "unfortunately worded", in that it did not recite the actual offences for which a warrant had been issued. Counsel for the DPP then sought a two week adjournment to "obtain further documents duly authenticated as required by the legislation". Counsel for the applicant made what he described as a "formal submission" that no adjournment should be granted, on the ground that the deficiency in the Warrant for Arrest was not of a "minor nature", within the meaning of s 19(4) of the Extradition Act. That submission apparently assumed that the only relevant power to adjourn the proceedings was that contained in s 19(4). The learned magistrate granted the request for an adjournment. He gave brief reasons, as follows:

"I think one thing is quite clear from the documentation before the court and that is the defendant is identical with a person who was charged with kidnapping and sexual assault as it's now known here or rape in Ohio and that in about 1984 during the course of proceedings to take the defendant to trial he absconded from bail, that bail was revoked, that warrants have been in existence since then for the defendant to be placed to trial. There are some procedural difficulties obviously before the court here in relation to this application for extradition and I think when we look at all of the matters it's not reasonable that the prosecution don't have an opportunity to overcome those difficulties if they can and I think it's a matter where the adjournment should be granted. The matter will be adjourned to 21 August 1996 for mention on that date." When the proceedings resumed on 21 August 1996, counsel for the DPP read a further affidavit sworn by Ms Tarighati. This affidavit annexed a fresh Warrant to Arrest, dated 8 August 1996. The text of the fresh Warrant to Arrest differs from the earlier warrant, in that it identifies specifically the offences of kidnapping, rape and attempted rape for which the applicant failed to appear and specifies the relevant provisions of the Ohio Revised Code which the applicant is alleged to have violated. Counsel for the applicant in the proceedings before the magistrate did not dispute that the fresh Warrant for Arrest satisfied the requirements of s 19(3)(a) of the Extradition Act. The magistrate accordingly made the order to which I have referred. The First Submission Ms Guilfoyle, who appeared on behalf of the applicant, submitted that the magistrate could not be satisfied that the requirement in s 19(2)(a) of the Extradition Act, that the "supporting documents" be produced to the magistrate, had been complied with. This was because the expression "supporting documents" were defined in s 19(3)(a) to mean, relevantly, "a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence". The first Warrant for Arrest did not satisfy the definition in s 19(3)(a), because it did not identify the extradition offences for which extradition of the applicant was sought. It was "fundamental" to the scheme of the Extradition Act that a magistrate could not conduct proceedings to determine whether a person was eligible for surrender if there were in fact no duly authenticated warrant then in existence, satisfying s 19(3)(a) of the Extradition Act. It was implicit, if not explicit, in Ms Guilfoyle's argument that the first Warrant for Arrest did not satisfy par (a)(i) of the definition of "extraditable person" in s 6 of the Extradition Act. In my opinion, this submission pays insufficient attention to the discrete nature of the successive stages in the extradition process and to the language of s 19 itself. In DPP v Kainhofer, the joint judgment (Brennan CJ, Dawson and McHugh JJ) expressly stated (at 538) that "the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. The powers conferred by the Act, other than those conferred by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence." Their Honours pointed out that the same issue may arise for independent determination by the respective repositories of powers, but on each such occasion the repository must independently determine the issue on which the existence of the power depends. The magistrate considering whether to issue a provisional arrest warrant under s 12 of the Extradition Act must decide whether he or she is satisfied that the person whose arrest is sought is an "extraditable person". That, in turn, requires the magistrate to consider whether a warrant is in force for the arrest of a person in relation to an offence against the law of a country that the person is accused of having committed: Extradition Act, s 6. The Attorney-General, when deciding whether to issue a s 16 notice, must consider the same question, namely, whether the person the subject of the extradition request, is an extraditable person: s 16(1)(a)(i). Neither the decision to issue a warrant under s 12 of the Extradition Act, nor the Attorney-General's decision to issue a notice under s 16, is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth): see Schedule 1. However, the decision of the Minister to issue a notice under s 16 may be the subject of judicial review under s 39B of the Judiciary Act 1903 (Cth), although the Court has a discretion as to whether it will grant relief: Harris v Attorney-General, at 400-401; DPP v Kainhofer, at 541-542, per Toohey J. The authority of a magistrate to conduct proceedings under s 19 of the Extradition Act is not dependent on any finding by him or her that the person said to be eligible for extradition is an "extraditable person". The magistrate is obliged to conduct the proceedings if the conditions specified in s 19(1) are met. As was said in the joint judgment in DPP v Kainhofer (at 539):

"The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s.16." It follows from DPP v Kainhofer that it is no part of a magistrate's function under s 19 of the Extradition Act to determine whether the person said to be eligible for surrender is an "extraditable person". The authority and duty of the magistrate to conduct the proceedings are not dependent on the existence of a duly authenticated warrant. It is the responsibility of other decision-makers in the administrative sequence to be satisfied that a warrant is in force which satisfies the requirements specified in the definition of "extraditable person" (Extradition Act, s 6(a)(i)). Of course, in order for the magistrate to determine that a person is eligible for surrender, a finding must be made that the "supporting documents" required by s 19(2)(a) have been produced to the magistrate. While s 19(3)(a) provides that the supporting documents must include "a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence", the definition of "supporting documents" in s 19(3)(a) does not specify when the "duly authenticated warrant" must be issued. In my view, s 19(2)(a) clearly contemplates that the supporting documents may be produced at any time prior to the magistrate determining that the person is eligible for surrender. Section 19(1) sets out the conditions which must be satisfied to enliven the magistrate's duty to conduct the proceedings. As I have said, those conditions do not include a requirement that a warrant be in existence, although they do require that the person be on remand under s 15 and that the Attorney-General issue a notice under s 16. Section 19(1) directs attention to the conditions that must be satisfied before a person can be found to be eligible for surrender. There is nothing in the language of s 19(2)(a) or s 19(3)(a) to justify reading them as requiring that the warrant satisfying those provisions must be in existence prior to the commencement of the proceedings under s 19. Indeed, s 19(4), which provides that an adjournment shall be granted to cure minor deficiencies in documents produced to the magistrate, contemplates that a document produced to the court might contain a deficiency and thus not amount to a "supporting document" within s 19(3)(a). Section 19(4) further contemplates that the deficiency can be cured in the course of the proceedings before the magistrate, by the production of a document created after the proceedings have commenced. Provided that a duly authenticated warrant, complying with s 19(3)(a), has been produced to the magistrate in the course of the proceedings under s 19 and before the magistrate's determination is made, it is of no consequence that the warrant was issued after the proceedings commenced. Ms Guilfoyle conceded that the Warrant for Arrest, issued on 8 August 1996 and admitted into evidence by the magistrate on 27 August 1996, satisfied the requirements of s 19(3)(a) of the Extradition Act. The applicant's first submission therefore fails. The Second Submission Ms Guilfoyle contended that it was beyond the jurisdiction of the magistrate to grant an adjournment for the purpose of enabling the Director of Public Prosecutions to obtain a fresh Warrant for Arrest correcting the perceived deficiencies with the Warrant for Arrest tendered on 7 August 1996. Ms Guilfoyle, as I understood her, submitted that the magistrate lacked power to grant the adjournment because the deficiency in the Warrant for Arrest tendered on 7 August 1996 could not be described as "of a minor nature" within s 19(4) of the Extradition Act. Accordingly, there was no power to grant an adjournment. In Forrest v Kelly (1992) 34 FCR 74, the Full Court considered the operation of s 19(4) of the Extradition Act. The Court (Davies, Wilcox and Einfeld JJ) said this (at 78-79):

"The function of s 19 is the same as that fulfilled under the 1966 Act by s 17: to regulate contested surrender applications. But it does not purport to deal exhaustively with all aspects of a surrender hearing. For example, it does not deal exhaustively with the magistrate's discretion to grant or refuse an adjournment. A proceeding might need to be adjourned for any one of a host of reasons, other than a minor deficiency of evidence. Neither does it deal with the admissibility of evidence after an adjournment. Section 19(4) deals only with a very special situation, a case where one or more documents contains a relevant minor deficiency. It is apparent that Parliament was concerned to ensure that, in such a situation, an opportunity would be provided to remedy the deficiency before the proceedings were dismissed. For that purpose, it was prepared to override the magistrate's usual discretion as to the conduct of the proceedings by commanding that, in that special situation, there had to be an adjournment. Note the mandatory words 'shall adjourn'. However, except in relation to that special situation, the usual position was to apply. The magistrate was to be free to conduct the proceedings as he or she saw fit, exercising all usual discretions on matters such as adjournments and receiving all admissible evidence." The magistrate in the present case did not rely expressly on s 19(4) of the Extradition Act when adjourning the proceedings. His Worship simply referred to some "procedural difficulties" with the application (which included an issue unrelated to the form of the warrant) and expressed the view that the prosecution should have an opportunity to overcome the difficulties. In my opinion, it is clear enough from the transcript of the proceedings that the magistrate did not rely on s 19(4) of the Extradition Act to justify granting an adjournment. His Worhsip made no reference to the sub-section in his brief reasons. Moreover, he did not suggest that the difficulties in the warrant should be classified as "of a minor nature"; he did not address that issue. He simply stated that he thought it was reasonable for the prosecution not to have the opportunity to address the procedural difficulties that had arisen. In these circumstances, the magistrate must be taken as having invoked the implied power to adjourn the proceedings on discretionary grounds referred to in Forrest v Kelly. See also R v Kelly; Ex parte Harvey (1985) 75 FLR 411 (S Ct SA/FC); Papazoglou v Philippines, at 60. Ms Guilfoyle did not suggest that the exercise of such a discretionary power had miscarried. In any event, once it is accepted that it is no part of the magistrate's function under s 19 of the Extradition Act to review the decisions to issue a provisional warrant under s 12 or a notice under s 16, there could be no complaint about the manner in which the magistrate exercised his discretion. Form of the First Warrant I have addressed the applicant's arguments on the assumption that the Warrant for Arrest tendered in the s 19 proceedings on 7 August 1996 complied neither with s 6(a)(i) nor s 19(3)(a) of the Extradition Act. Mr Williams challenged this assumption. He argued that the evidence as a whole showed that the document was "a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence", within s 19(3)(a). As I understood him, Mr Williams also contended that it was "a warrant...in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed", within s 6(a)(i). Mr Williams submitted that it was necessary to consider, not merely the warrant itself, but all the evidence before the magistrate, including the indictment, the Journal Entry bearing the same date as the warrant and Ms Tarighati's unchallenged evidence concerning to the effect of the warrant. Taking this evidence into account, Mr Williams argued that the warrant satisfied the provisions to which I have referred, notwithstanding that it did not expressly identify the offences in respect of which it was issued. I think that Mr William's submissions on this aspect of the case have considerable force. However, in view of the conclusions I have already reached, it is not necessary to express a final view as to whether they are correct. Conclusion The application to review the order made by the learned magistrate fails. The appropriate order, pursuant to s 21(2)(a) of the Extradition Act, is to confirm the order made by the magistrate. It would seem appropriate to order the applicant to pay the first respondent's costs of the proceedings. However, to give the applicant an opportunity to make submissions on costs, if he wishes to do so, I shall stay the costs order for 14 days. If written submissions are filed on behalf of the applicant within that period, I shall extend the stay to enable the question of costs to be resolved. Mr Williams drew to my attention s 21(6)(g) of the Extradition Act, which reads as follows:

"if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences."

It is by no means clear that an order made pursuant to s 21(2)(a) of the Extradition Act, confirming an order made by a magistrate under s 19(9), is a determination by the Court that the applicant is "eligible for surrender" within the meaning of s 19(2) of the Act. However, Mr Williams invited me, as a matter of abundant caution, to specify in the judgment (although not the orders) the extradition offences in respect of which the applicant is eligible for surrender. On that basis, I specify that the extradition offences in respect of which the applicant is eligible for surrender are kidnapping, rape and attempted rape, allegedly committed in the State of Ohio in the United States of America, on or about 15 August 1984, in respect of a person named Suzan Brown.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate: Dated: 11 July, 1997 Counsel for the Applicant: Ms K.M. Guilfoyle.

Solicitor for the Applicant: Barlow & Company.

Counsel for the First Respondent: Mr N.J. Williams and Mr T. Reilly.

Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions.

The Second Respondent filed a submitting appearance save as to costs. Dates of Hearing: 30 June, 1997