History of the Legislation
39 At the time In re Coppin (1866) 2 Ch App 47 was decided, only persons accused of criminal offences could be extradited from England to France. A French notary, Coppin, had been condemned in his absence par contumace for forgery in France. One question was whether such a judgment rendered him a convicted person, and hence, beyond the reach of the extradition process. Evidence was given that:
"'If a man is accused of forgery in France, and a judgment par contumace is obtained against him, it would be a sentence of the Court without the assistance of a jury. If that man is arrested or surrenders himself, that judgment is annulled, so that it is exactly the same as if no proceedings had been taken against him, and then he undergoes his trial for the offence with which he was charged.'"
40 Lord Chelmsford LC said at 54:
"And as upon his appearance, or upon his apprehension, the judgment against him is annulled, and he is to be put upon his trial for the offence, I do not see how he can be described otherwise than as an accused person."
41 As a result of this decision, s 26 of the Extradition Act 1870 (Imp) (the 1870 Act) was inserted in the following terms:
"'The terms 'conviction' and 'convicted' do not include or refer to a conviction which under foreign law is a conviction for contumacy, but the term 'accused person' includes a person so convicted for contumacy.'"
42 In R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498 the applicant was charged with theft in France. He was summoned to appear initially, and then again following an adjournment. He did not appear. As a result, he was convicted in his absence and was sentenced to four years imprisonment. Under French law, such a judgment was called a "jugement par défaut", and gave the person subject to it a right to have it set aside and to be tried in his/her presence. The applicant so applied, but did not appear at the retrial. The conviction was confirmed and, under French law, became final in the absence of any notice of appeal. This judgment was known as a "jugement itératif défaut". If the applicant was surrendered he would, under such a judgment, be returned to France where he would be sent to jail to serve his sentence without further trial.
43 The applicant went to England. In these circumstances, a magistrate dealt with the applicant as an accused person.
44 Under s 10 of the 1870 Act the magistrate could commit a person to jail if evidence was produced that would, under the law of England, justify the committal for trial of the person if the crime had been committed in England. On the other hand, the 1870 Act provided that in England a convicted person would be committed to jail if evidence was produced which would prove that the person was convicted of the crime.
45 On appeal, the applicant argued that no order should have been made against him because he was a convicted person, and not an accused person for the purposes of the 1870 Act. The jugement itératif défaut was a judgment for contumacy under s 26 of the 1870 Act. In accepting this argument Salmon J, who gave judgment for the Court (which comprised Lord Parker CJ and Ashworth J), traced the history of s 26, and said at 509-11:
"The meaning of the words 'for contumacy' in this statute is somewhat obscure and hitherto has never been considered by the courts. In our view these words were introduced into section 26 in order to bring the statute of 1870 into line with the decision in In re Coppin [(1866) 2 Ch App 47]. This view is supported by Piggott on the Law Relating to Fugitive Offenders (1910), p. 129. Before the passing of the Extradition Act, 1870, this country had entered into extradition treaties with France and the United States of America. Each of these treaties was the subject of a separate Act of Parliament passed in 1843. Those statutes were the first Extradition Acts to be passed in England. The statute governing the treaty with France was the Extradition Act, 1843 (6 & 7 Vict. c. 75). Under that Act only a person accused of committing an extradition crime could be extradited. No one who had been convicted in France and escaped to England could be extradited in respect of such conviction. The question arose in that case as to whether Coppin was an accused or a convicted person. He was the subject of a conviction 'par contumace' in France for forgery and fraud. In the course of his judgment in Coppin's case Lord Chelmsford L.C. made an elaborate investigation into the effect in French law of a conviction 'par contumace'; he found that if a person so convicted 'is arrested or surrenders himself, that judgment is annulled, so that it is exactly the same as if no proceedings had been taken against him, and then he undergoes his trial for the offence with which he was charged.' Lord Chelmsford L.C. came to the conclusion that a person convicted 'par contumace' could not properly be described otherwise than as an accused person, since on his apprehension the judgment against him is annulled and he is put upon his trial. In our view, the words 'for contumacy' in section 26 of the Act of 1870 were intended as a translation of the French words 'par contumace'. This view accords with that expressed in Clarke on The Law of Extradition, 4th ed. (1903), p.233. In our judgment, a conviction for contumacy does not include a final judgment 'itératif défaut' which is radically different in character from a conviction 'par contumace'. A fugitive criminal convicted 'par contumace' would upon his surrender be tried, whereas a fugitive criminal subject to a final conviction 'itératif défaut' would, on his surrender, be sent straight to prison without any further trial.
It is to be observed that section 26 makes no reference to a conviction 'par défaut'. This may be because the researches into French law by those responsible for drafting it did not go beyond a consideration of the judgment in Coppin's case. According to the evidence before us a conviction 'par défaut' is exactly the same in character as conviction 'par contumace'. The former is a decision of a Tribunal Correctionale which has jurisdiction over 'délits,' and the latter is the decision of a Courd'Assises which has jurisdiction over other types of crimes. Applying the reasoning of Lord Chelmsford in Coppin's case it is clear that anyone subject to a 'jugement par défaut' comes into the category of an accused person, rather than into the category of a convicted person. Accordingly, even although a judgment 'par défaut' is not expressly referred to in section 26, in our view any alleged fugitive criminal subject to such a judgment would properly be proceeded against and committed as an accused person under the first paragraph of section 10 of the Extradition Act. But the applicant is not such a person, for he is subject to a final 'jugement itératif défaut'."
46 The original form of s 4(3) of the Extradition (Foreign States) Act 1966 (Cth) was passed in 1966, and mirrored the terms of the English Act as follows:
"'For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a foreign state where the conviction is, under the law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against the law.'"
47 In 1967 the House of Lords decided Athanassiadis v Government of Greece [1971] AC 282. The applicant was convicted in Greece of obtaining money as a maritime agent by fraud. He was dealt with by the magistrate in England as a convicted person. In the House of Lords it was argued for the applicant that the judgment of the Greek court was a conviction for contumacy, and hence, the applicant should have been treated as an accused person. Viscount Dilhorne (with whom the other members of the House of Lords agreed) said at 295-6:
"If the fact be that, on his arrest or surrender, the accused person will be put on trial as if he had never been convicted in his absence, it is clearly right that he should be dealt with in this country not as a convicted but as an accused person. The definition in section 26 secures this.
…
In this case evidence was given before the magistrate by a member of the bar in Athens. He said that, if the appellant was returned to Greece, he would go to prison under the judgment of the Court of Piraeus to serve his sentence, that the judgment was final as it was going to be executed immediately and that an appeal against the sentence would have no suspensive effect.
…
The member of the Athens bar who gave evidence said that under article 341 of the Greek Code a person convicted in his absence can within 15 days ask for a rehearing if his absence was caused by genuine reasons beyond his control whereby he could not have made an application for an adjournment previously. The existence of a right in certain circumstances to a rehearing does not mean that a person convicted in his absence will on arrest or surrender be treated as an accused person.
In the light of this statement and of the evidence given by the member of the Athens bar before the magistrate, it is, in my opinion, clear beyond doubt that the conviction of the appellant in Greece was not a conviction for contumacy, that the sentence passed upon him was not a sentence in contumacia, and that he was properly treated before the magistrate as a convicted and not as an accused person."
48 In 1973, s 4(3) of the Extradition (Foreign States) Act 1966 (Cth) was amended to read:
"Where -
(a) a person has been convicted in his absence of an offence against the law of, or of a part of, a foreign state; and
(b) the conviction is not a final conviction,
then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence."
49 The change was cosmetic. The substance of the section did not change. It reflected the development of the law which had taken place in Carborn-Waterfield and Athanassiadis.
50 In R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46, the House of Lords again considered the same question, albeit with the slightly different twist. Zezza was convicted in his absence for armed robbery in Italy. He was sentenced to imprisonment and a fine. The Italian Government sought his extradition. The magistrate in England committed him to prison on the basis that he was a convicted person. In the House of Lords, Zezza contended that he should have been treated as an accused person under s 26, because his conviction was a conviction for contumacy. This followed, he argued, because the Italian criminal code used the description "in contumacia" for the process by which he was convicted
51 Lord Roskill (with whom the other members of the House of Lords agreed) explained, at 55, that the Court must examine:
"whether or not the conviction upon which the demand is founded bears the characteristics of a conviction or sentence 'in contumacy', so that the whole matter can be reopened in the event of subsequent surrender and appearance. If it can, then the person concerned must not be treated as a convicted person but as an accused person."
52 He outlined, at 52, the provisions of the Italian criminal code under which Zezza had been convicted as follows:
"By Italian law the appellant's conviction, he having been tried and sentenced 'in contumacia', is valid and final. It follows that if the appellant be extradited, no further proceedings can thereafter be taken by him in Italy to secure the review of his conviction and sentence. Upon any return to that country the appellant must serve that sentence. This has been the position in Italian law since 1931 when the then new Rocco Criminal Code was introduced. Before 1931 and indeed at the time of the Anglo-Italian Extradition Treaty concluded in 1873 there was in force in Italy a form of conviction and sentence known as 'in contumacia'. Under this procedure the conviction and sentence could be reopened upon the subsequent appearance of the accused and a new trial could be held. Thus the conviction and sentence 'in contumacia' might be described as conditional or provisional. But since 1931 the position in Italian law is as I have just stated and as the magistrate and the Divisional Court held. Although an accused since 1931 is given the right to take part in the 'in contumacia' trial if he appears before that trial is concluded, he has no right whatever to a review or to a fresh trial once the trial has been finished."
53 And he concluded, at 56, that the appeal should be dismissed because:
"notwithstanding the name given to, or one might say the label attaching to , the Italian procedure pursuant to which the appellant was convicted and sentenced in his absence, your Lordships should look at the true nature and effect of that procedure as it has operated in Italy since 1931."
54 In Wiest, Gummow J observed, at 512, in respect of the cases just discussed:
"It is important to understand that the different procedures described in the British cases had in common the characteristic that they were convictions in absentia in the sense that the accused had not been present throughout the proceedings, and particularly when the conviction was recorded. The special concern was with the distinction between final convictions and convictions of lesser quality."
55 Wiest was determined on the 1985 version of s 4(3). It was the history, which I have outlined, upon which Gummow J relied as a factor supporting the construction of the words "convicted in his absence" as excluding the case of absence occasioned by voluntary waiver. His reason was that this history showed that the concern of the British and American legislatures had not been with cases of voluntary waiver by the accused of their rights.
56 I am not able to identify in this history of the provision any indication that the legislature intended to include or exclude from the description "convicted in … absence" persons who voluntarily absented themselves from trial and sentence. The cases were concerned with a different issue, namely, the degree of finality of the conviction. The 1973 amendment did not change the meaning of the section.
57 In addressing the history of s 4(3), Gummow J referred to Royal Government of Greece v Governor of Brixton Prison [1971] AC 250. It seems that he drew partly from this case the conclusion that the legislature, by referring to conviction in absence, was concerned with cases in which a person was convicted without the right to be present at his trial, rather than with cases where an accused voluntarily waived their right to be present.
58 In that case a Greek national, Kotronis, was convicted in Greece of obtaining money by false pretences. When the proceedings started in Greece he had already left, and was not given notice of the hearing. He was convicted and sentenced in his absence. Section 10 of the 1870 Act required the magistrate to commit a fugitive criminal to prison upon proof of the conviction. Kotronis was treated by the magistrate as a convicted person. He contested this approach on the ground that the conviction had been obtained against him in breach of the requirements of natural justice. The House of Lords rejected this argument. Lord Reid (with whom Lord Guest and Lord Upjohn agreed at 281) said at 278:
"For the respondent Kotronis it was argued that it is well established that our courts, when asked to apply a foreign civil judgment, will have regard to any denial of natural justice, so a fortiori we must do that in a criminal case. That would be a strong argument if it were contended that there is no means by which a fugitive criminal can raise that matter. But here the real question is whether it is for the court or for the Secretary of State to deal with the matter, so I do not think that this argument has much force."
59 Lord Reid referred to his speech in Atkinson v United States of America Government [1971]AC 197 as applicable to the issue in Royal Government of Greece v Governor of Brixton Prison. In the former case he had said at 232-3:
"It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament. There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal. Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime. It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered. Parliament can never have so intended when the 1870 Act was passed.
But the Act does provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man.
…
But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts."
60 In Royal Government of Greece v Governor of Brixton Prison Lord Mauris, at 280-1, also concentrated on the division of responsibility under the Act between the court, which was concerned with proof of conviction, and the Secretary of State, who was concerned with the discretionary decision whether or not to surrender the fugitive following a decision of a court that the person was eligible for surrender.
61 Thus, the focus of attention in these cases was on the limitation on the role of the court under the statute by reference to the residual discretion exercisable by the Secretary of State. That being so, the cases do not, in my view, assist in an understanding of the meaning intended. In particular, they do not support the construction of "conviction in … absence" as excluding the case where on accused is absent by reason of a voluntary waiver of their right to be present.
62 In 1985, s 4(3) was amended to take the form set out in par 24 of these reasons.
63 Again, in Wiest at 513, Gummow J described the effect of this amendment as follows:
"The new s 4(3) operates whether the conviction is or is not a final conviction; in either case (not just those where the conviction lacks finality) the person is deemed not to have been convicted of the offence in question, and is deemed to be accused of that offence. This has the effect of treating as within s 4(3) the convictions considered by the House of Lords in Athanassiadis' case and Zezza's case as being final in character, thus obliging the fugitives in question in being dealt with under the British legislation as convicted persons. The new Australian provision would indicated the opposite result on the facts of those cases."
64 Furthermore, from 1985 onwards, the concern of s 4(3) lay not only with convictions obtained in the absence of the accused and not yet made final, but also with final convictions obtained in the accused's absence. The amendment which included the words "whether final or not" represented a significant departure from the prior history. Where any person has been convicted, in their absence, whether final or not, s 4(3) deems them an accused for the purpose of the Act. In this respect, it appears that the history of the provision is of limited assistance in construing the meaning of its current form.
65 This is confirmed by other aspects of the history of the provisions. The context in which the 1985 amendment occurred that may provide a clue as to the meaning intended by Parliament.
66 In Wiest, the majority decision rested upon the view that the distinction between an accused and a convicted person made in s 4(3) was designed to apply to the operation of s 17(6). This section specified the matters necessary to be demonstrated to satisfy a magistrate that a person was eligible for surrender. The specification was made by reference to whether a person was an accused or convicted person.
67 Section 17(6) was, like s 4(3), amended in 1985. It is useful to set out the 1966 (original) version of s 17(6), followed by the version as amended in 1985.
The 1966 version provided:
"17 (6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph (a) of sub-section (1) of section 15 or the Magistrate receives a notice by the Attorney-General under paragraph (b) of that sub-section and -
(a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person;
(b) there is produced to the Magistrate -
(i) in the case of a person who is accused of an extradition crime - such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, the State or Territory; or
(ii) in the case of a person who is alleged to have been convicted of an extradition crime - sufficient evidence to satisfy the Magistrate that the person has been convicted of that crime; and
(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender, the Magistrate shall, by warrant in accordance with Form 5 in Schedule 2, commit the person to prison to await the warrant of the Attorney-General for his surrender but otherwise shall order that the person be released."
The 1985 version provided:
"17 If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and -
(a) there is produced to the Magistrate -
(i) in the case of a person who is accused of an extradition crime-
(a) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant;
(b) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and
(c) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested; or
(ii) in the case of a person who is alleged to have been convicted of an extradition crime - such duly authenticated documents as provide evidence of the conviction, of the sentence imposed on the person or of the intention to impose a sentence on the person and of the extent to which a sentence imposed on the person has been carried out, and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and
(b) the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender,
the Magistrate shall either -
(c) by warrant in accordance with the form prescribed for the purpose of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person, or
(d) in the case of a person -
(i) who has been charged with an offence that is alleged to have been committed in Australia, being a charge that has not been disposed of; or
(ii) who has been convicted in Australia of an offence and is not in custody in respect of that offence,
on the person's entering into such recognisances as the Magistrate thinks appropriate, grant bail to the person pending the signing of a warrant by the Attorney-General for the surrender of the person,
but otherwise the Magistrate shall order that person be released."
68 It can be seen that, in 1966, the magistrate had to be satisfied, in the case of an accused person, that there was such evidence as would justify the trial of the person, and, in the case of a convicted person, sufficient evidence that the person had been convicted of the crime. In either case a warrant in respect of the person had to be produced.
69 The 1985 amendment removed the need for evidence which would justify the trial of a person accused, or evidence of conviction in the case of a person convicted of a criminal offence. In respect of an accused person, it was sufficient to provide a statement describing the offence and the penalty, and the acts and omissions in respect of which the surrender was sought. And, in respect of a convicted person, it was sufficient to provide a document evidencing the conviction and sentence. The need to produce a warrant was limited to cases of accused persons.
70 This amendment reflected a fundamental change in the policy approach to extradition in Australia. Prior to the amendment, a requesting State was required to produce evidence before the magistrate in support of its claim for surrender. The function of the magistrate involved an assessment of that evidence. After the amendment, no evidence was required to be produced for evaluation by the magistrate. Instead, the magistrate had to be satisfied only that the designated documents had been produced.
71 A reason for adopting the no evidence model was explained by the Attorney-General in the Second Reading speech of the Extradition (Foreign States) Amendment Bill 1985, as follows (Commonwealth, Parliamentary Debates, House of Representatives, 20 March 1985, 596):
"The first amendment will enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the fugitive. This amendment is of particular significance to civil law countries whose systems have difficulty in adapting to the provision of pre-trial evidence. The extradition arrangements of most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence."
72 In passing, I should note that in Wiest, at 509 Gummow J referred to the Second Reading speech in relation to the Extradition (Foreign States) Amendment Bill 1985 and suggested that it contained an erroneous statement of the effect of the 1985 amendment. The error was said to be that the Attorney-General wrongly stated that the amendment removed the requirement for proof of evidence of guilt. In truth, the Attorney-General was correct in stating that the effect of the amendment was to remove the requirement that the requesting State produce evidence of guilt. The passage referred to by Gummow J, whilst on the same page of Hansard (p 596) related to the Extradition (Commonwealth Countries) Amendment Bill 1985, which retained the requirement for evidence. But that Bill applied only to Commonwealth countries.
73 Last year, the Attorney-General's department made submissions to a review conducted by the Joint Standing Committee on Treaties on Australia's extradition law and policy: Joint Standing Committee on Treaties, Report 40: Extradition - A Review of Australia's Law & Policy (August 2001). The Department argued in favour of retention of the no evidence approach. The Department's submission refers to the history of the introduction of the 1985 amendments. Part of this submission is summarised in the non-italicised sections of the Report at 3.20 as follows:
"In the civil law system, there is no equivalent to a committal hearing, nor is evidence on oath received at the pre-trial stage. Thus:
civil law countries, and even some less sophisticated common law countries may find it impossible or prohibitively expensive to meet the requirements of the prima facie procedure, with the result that Australia could become a haven for criminals from such countries.
In support of this point, the Department stated:
During negotiations with certain Western European countries in the mid-1980s it transpired that they were aware of the presence in Australia of fugitives of their nationality but had made no extradition requests simply because they did not believe there was any reasonable prospect of meeting the common law requirements.
The Department noted that considerable Australian Government resources are already devoted to assisting foreign countries to provide evidence in the appropriate form, and that reinstituting the prima facie case requirements would be likely to significantly increase this demand."
74 The change to the no evidence approach proved productive. The Joint Standing Committee reported at par 2.23:
"Bilateral treaties: There are 31 modern treaties in force in Australia. All but one of them have been have negotiated or re-negotiated since the 'no evidence' option became available in 1985. Most of the treaties are with Western Europe and the Americas. Twenty-seven of the treaties follow the 'no evidence' model, two (the USA and South Korea) adopt the 'probable cause' test and two (Hong Kong and Israel) the prima facie case test. Another five treaties have been signed and await entry into force, four based on 'no evidence' and one on the prima facie case."
75 A broader view of the reasons for the change were suggested by the Joint Standing Committee at par 1.6:
"A particular concern that triggered this inquiry was a suggestion that the changes made to Australia's extradition law and policy in the mid 1980s were a reaction to the fall-out from Australia's unsuccessful and highly publicised attempts to extradite alleged drug trafficker Robert Trimbole from Ireland. In particular, we had found the evidence of Professor Ivan Shearer, a leading Australian expert on extradition law, to be compelling:
The requirements of the prima facie case … was thought to be too onerous in the period following the Trimboli case, in about 1986. Clever lawyers, it was said, were getting fugitive criminals discharged because of the gaps in reliable evidence inherent in transmitting documents and sworn testimony from foreign countries to Australia. The rules of evidence, inherited by Australia from England, were said also to be too technical and difficult for foreign authorities to understand or comply with. Not that the Trimboli case had anything to do with evidence: in that case the fugitive escaped to Ireland with which Australia had no extradition treaty at the time. But in the ensuing hue and cry, when it was discovered that there were many gaps in Australia's coverage of extradition relations with foreign countries, the opportunity was seized by Australia of opening negotiations for a whole host of new extradition treaties in the period from 1987 onwards. It was then that it was proposed that a simplified 'modern' model of the treaty should be adopted by Australia, dispensing with the prima facie case in the interests of efficiency and speed of handling requests, and so as to give reciprocity of treatment to those foreign countries that did not apply - or even understand - the prima facie evidence requirement.
In my view the abandonment of the prima facie requirement in Australia's extradition treaty and legislative policy was over-hasty and unwise. It is unjust that a person (especially an Australian citizen) may be extradited to a foreign country on the mere demand (albeit subject to certain safeguards) of that country's authorities and without any opportunity for an Australian court to examine the evidence."
76 In his submission to the Joint Standing Committee, Professor Shearer threw further light on the circumstances in which the 1985 amendments were made. At par 3.25 his submission is recorded thus:
"It was wrong in 1985 to have moved so precipitately towards abolition of the prima facie case. It was wrong too to take so much power away from the courts and to vest it in the Executive. The consequences were not thought through by Parliament. It was all done in great haste as a panic reaction to the Trimboli case. No other common law countries followed our lead."
77 The purpose of the 1985 amendments, as revealed by the Second Reading speech and the circumstances of the time, as described in the preceding paragraphs, suggest that the principal concern of Parliament was to respond to public concerns about the extradition system by simplifying the extradition process and, thereby, making extradition simpler and easier. This was achieved by removing the prima facie evidence requirement. The same purpose may explain the amendment to s 4(3) which removed the distinction between convictions which were final and those which were not.
78 It is likely that when s 4(3) was amended in 1985, Parliament meant that a conviction in absence was simply a conviction obtained when the accused was not present. Otherwise, the magistrate would be faced with having to determine whether the absence amounted to a voluntary waiver of a right to be present. This would potentially involve an elaborate factual inquiry. Such an inquiry would not be conducive to the simplicity of process which was the motivation for the amendments.
79 There is a curiosity in the notion underlying s 4(3) in its 1985 form. One of the requirements under s 17(6) in the case of an accused person is the production of a warrant (s 17(6)(a)(i)(a)). As a result of the 1985 amendment to s 4(3) this is so even in the case of a final conviction. It seems strange that the section requires production of a warrant in such circumstances. Such a document authorises an arrest. Once a final conviction is recorded, the status of the accused is established as that of a convicted person. The warrant which authorised the arrest of the accused then speaks in relation to the past, that is to say, a time when the person was not convicted. Once the final conviction is recorded, there seems little reason for the production of the original arrest warrant before the magistrate. The force of the warrant has been spent, and its relevance has been overtaken by the final conviction.
80 Perhaps this curiosity substantiates the view of Professor Shearer that the amendment was made in haste and without full consideration of the consequences. However, this curiosity does not militate against the simple construction which I favour, because the curious consequence flows equally in the case of final conviction in absence which is not voluntary.
81 The foregoing discussion has considered the terms of ss 4(3) and 17(6) in the 1985 version of the Act. In 1988 there were further amendments. Section 10(1) in the 1988 Act, is the successor to s 4(3). The changes are inconsequential.
82 Section 17(6) has been replaced by s 19(1), (2a), and (3). These sections have been set out in par 8 of these reasons. The structure of the section has been altered. The substance of the provisions relating to accused persons is unchanged. In respect of convicted persons, the amendment adds to the requirement of documents evidencing the conviction the same statements as are required in respect of accused persons. This change continued the move towards simplifying the procedure. As a result of the 1988 amendments, the statements required in respect of both accused and convicted persons are the same. The only difference between the requirements applicable to accused and convicted persons is that for accused persons the warrant must be produced, and for convicted persons the conviction must be produced.