Hellenic Republic v Tzatzimakis

PROCeedings before the magistrate 8 On 17 April 2000, the magistrate commenced hearing the proceedings under s 19 of the Act to determine whether Mr Tzatzimakis was eligible for surrender in relation to the offences for which his surrender was sought by the Hellenic Republic. The relevant provisions which governed that hearing are ss 19(1), 19(2)(a) and 19(3) of the Act which provide as follows: "(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; (b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of: (i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out; and (c) in any case: (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence." 9 It can been seen that subsections 19(3)(a) and (b) stipulate different requirements depending on whether the offence concerned is one of which the person is accused, or of which the person has been convicted. One of the difference is that if the offence for which the person is sought is one of which the person is accused, a warrant for the arrest of the person, or a copy of such warrant, must be produced to the magistrate. If the offence for which the person is sought is one of which the person is convicted, no such warrant need be produced to the magistrate. 10 Section 10(1) of the Act is an interpretation provision concerning offences. It defines the circumstances in which a person is deemed to be accused of an offence. It provides: "Where a person has been convicted in the person's absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence." 11 It was common ground that the Hellenic Republic did not produce to the magistrate a warrant or copy warrant for the arrest of Mr Tzatzimakis. Thus, if the offences for which Mr Tzatzimakis were sought were offences of which he was accused within the meaning of s 19(3)(a) there was a fatal deficiency in the documentation. 12 The magistrate determined that, for the purposes of s 19(3), the offences for which Mr Tzatzimakis was sought were ones of which he was accused, and not convicted. 13 This conclusion followed from the magistrate's view that Mr Tzatzimakis had been convicted in his absence within the meaning of s 10(1). As the Hellenic Republic had not produced a warrant for the arrest of Mr Tzatzimakis as an accused person, the requirements of s 19(2)(a) had not been satisfied. Consequently, the magistrate determined that Mr Tzatzimakis was not eligible for surrender. Having so found, the magistrate ordered, under s 19(10), that Mr Tzatzimakis be released.

the issue on review 14 The question before the Court on this review is whether the magistrate was correct to hold that Mr Tzatzimakis was convicted in his absence within the meaning of s 10(1). 15 The Hellenic Republic contended that a person is not convicted in absence where the person voluntarily waives a right to be present at his trial. Rather, a conviction in absence occurs only where a person is not entitled to be present at his trial. Mr Tzatzimakis, it was submitted, was entitled to be present at his trial, but chose not to attend. Hence, he was not convicted in his absence for the purpose of s 10(1). Rather, he should have been treated as convicted person under s 19(3)(b). The failure of the Hellenic Republic to produce a warrant for the arrest of Mr Tzatzimakis as part of the supporting documents was, therefore, immaterial. The magistrate should have determined that Mr Tzatzimakis was eligible for surrender, and should have issued a warrant under s 19(9)(a) committing Mr Tzatzimakis to prison to await a decision of the Attorney-General whether he would be surrendered to the Hellenic Republic. 16 Counsel for Mr Tzatzimakis submitted that the magistrate adopted the correct interpretation of s 10(1). A person is convicted in that person's absence if the person is not in attendance at the trial and conviction. Mr Tzatzimakis was not in attendance at his trial and conviction, and hence, he was convicted in his absence for the purpose of s 10(1). Production of a warrant of arrest was, therefore, necessary. In the absence of production of a warrant by the Hellenic Republic, the magistrate was correct to determine that Mr Tzatzimakis was not eligible for surrender.

the obvious approach 17 Unassisted by reference to the history or context of the relevant provisions or their purpose, one would construe the reference to a conviction in a person's absence in s 10(1) as a reference to a conviction obtained when the person was not present at trial or conviction. Absence simply means not present. On this approach no question would arise as to the reason for the person's non-attendance. 18 Such a construction reflects the ordinary use of the language. 19 The New Shorter Oxford English Dictionary (1993) gives the primary meaning of "absence" as "the state of being away from a place or person". The Macquarie Dictionary (1995, 2nd Ed) also gives the primary meaning of "absence" as "a state of being away". 20 The same meaning was given to s 64 of the Crimes Act 1958 (Vic), which provided a defence to a charge of bigamy where, inter alia, the husband or wife had been "continually absent" for seven years. Hudson J in R v Darnton [1960] VR 191 held that the defence was available if the accused had been absent, whether such absence was a result of desertion on his part or not. 21 And, in Gapes v Commercial Bank of Australia Ltd (1979) 27 ALR 72, Northrop J held that an employee who was physically present at work was not "absent from duty" even though the employee was not performing his duties. His Honour said that "absent from duty" should be "given its ordinary meaning as referring to physical bodily absence from duties". 22 In Ryan v Heiler (Unreported, Supreme Court of New South Wales, Young J, 26 February 1990), Young J was concerned with provisions of the Local Government Act 1990 (NSW) which stipulated that certain absences from council meetings could result in the loss of office by an alderman. "Absence" was construed to mean "not at" rather than "a voluntary or deliberate failure to be present". The assistance of this case is limited because the construction depended on the particular statutory context. His Honour noted that the opposite meaning had been applied in cases dealing with articles of association of companies: Mack's Claim (1900) WN (Eng) 114; McConnell's Claim (1901) 1 Ch 728; and Willsmore v Willsmore-Tibbenham Ltd (1965) 109 Sol Jo 699. 23 Whether this obvious approach to the construction of s 10(1) is available must be viewed in the light of the opinions expressed in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 concerning the predecessor of s 10(1) of the Act, namely, s 4(3) of the Extradition (Foreign States) Act 1966 (Cth) (as amended in 1985).

wIEst v director of public prosecutions 24 The Federal Republic of Germany requested the surrender of Mr Wiest. The request stated that Mr Wiestwas sought for the purpose of having him serve a prison sentence to which he had been sentenced for fraud offences. The magistrate determined that Mr Wiest was eligible for surrender. Challenges to this decision failed before a single judge of the Federal Court. Mr Wiest then appealed. The Full Court found against him on the grounds of appeal specified in the notice of appeal. Mr Wiest applied to amend the notice of appeal in order to raise a new ground. In determining whether to allow the amendment the Court considered whether the proposed ground would be likely to succeed. The proposed ground involved the construction of s 4(3) of the Extradition (Foreign States) Act 1966 (Cth) as amended in 1985 which was in the following terms: "Where a person has been convicted in the absence of the person of an offence against the law of, or a part of, a foreign state, whether or not the conviction is 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." 25 Mr Wiest contended that s 4(3) had the effect that a person convicted in his absence could not be sought for surrender to serve a sentence, but could only be sought for surrender to stand trial for the offence alleged. In that way, the person would be treated as an accused not as a convicted person, as required by the section.. 26 Gummow J (with whom Sheppard J agreed at 482, and added certain additional comments at 484) concluded that the proposed argument was bound to fail, and hence, leave to amend the notice of appeal should be refused. Gummow J said at 513-4: "In my view, the phrase 'for the purposes of the Act' in s 4(3) does not mean, as the appellant submitted, that all documents referred to or required by the Act, beginning with the requisition for surrender (s 15(1)), must identify and treat the convicted fugitive as if he were an accused. Nor, in my view, is s 4(3) designed to ensure that the requesting State seeking a fugitive who has been convicted in absentia must request extradition for trial rather than to serve a sentence. The phrase 'for the purposes of the Act' does not direct the reader to draw from the particular terms in which the legislation is expressed a general proposition as to the overall legislative intent and then read that back into provisions such as ss 15(1) and 17(6)(a)(i)(a), so as to oblige the requesting State to specify in the requisition and the warrant that there will be a further trial." 27 Burchett J dissented on this issue. 28 The majority then considered whether s 4(3) applied to Mr Wiest at all. This involved determining whether Mr Wiest had been convicted in his absence within the meaning of s 4(3). Sheppard and Gummow JJ both took the view that Mr Wiest was not convicted in his absence. I will return to their reasons for this conclusion shortly. However, as the case had been conducted before the magistrate and the trial judges on the basis that s 4(3) did apply, Sheppard and Gummow JJ said that it would not be appropriate to depart from that course in consideration of the appeal. 29 In summary, the majority reasoned, first, that because of the way in which the parties had argued the case below, Mr Wiest should be treated by the Full Court as falling within s 4(3), and second, that s 4(3) did not exclude a request for surrender for a person to serve a sentence rather than for the purpose of attending a retrial. This reasoning supported the conclusion that Mr Wiest was eligible for surrender under the request which had been made. 30 Thus, in order to determine the appeal, the majority treated Mr Wiest as a person convicted in his absence, within the meaning of s 4(3), because the parties had based their cases on this understanding. It follows that the view of the majority that Mr Wiest did not, in truth, fall within the description of a person convicted in his absence under s 4(3) was not part of the ratio decedendi of the case. Consequently, the views on that question are not binding on me as a single judge. They are, however, of persuasive authority. 31 On the construction of the section, Gummow J said, at 514-5: "What remains for consideration is the effect to be given to the concept of trial in absentia expressed in the form of words taken in the 1985 and in the 1973 forms of s 4(3), respectively, 'Where a person has been convicted in the absence of the person' and 'where … a person has been convicted in his absence of an offence …'. In the light of some of the matters raised in the course of argument on the present appeals, I should consider whether in truth it was necessary for the Federal Republic to take the approach that it has. In my view, consideration of the events which I have outlined concerning the conduct of the appellant's trial, shows that there is a serious question as to whether s 4(3) applied to the appellant, and thus as to whether it was necessary for the Federal Republic and the Director of Public Prosecutions to have accepted the heavier burden as they did. It is true that Mr Wiest was not present in court, or indeed, on the territory of the Federal Republic, on 11 February 1987 when judgment was delivered by the Local Court. That this was so was not the result of any law of the Federal Republic nor of any duress or other means which was exerted upon the appellant to prevent his continued attendance. It is clear from the materials before us that he left Germany in the course of his trial and of his own volition. It is a requirement of the common law as understood in England and Australia that the prisoner be present throughout his trial for an indictable offence if he is in custody: Lawrence v The King [1933] AC 699. There may not be such a requirement at common law where the offence is a misdemeanour: R v Jones (No 2) (1972) 56 Cr App R 413 at 418-419. The right to be present is waived if, in the course of the …and whilst on bail, the accused absconds or escapes from lawful custody; the judge then has a discretion to continue to trial or to discharge the jury: R v McHardie [1983] 2 NSWLR 733. In the United States, the right given under the common law has been trasmuted into federal and State constitutional guarantees of due process. There is high authority that, at least in the case of trials for non-captial offences, the constitutional right may be waived if the accused absconds or otherwise voluntarily absents himself from his trial: Diaz v United States 223 US 442 at 449-459 (1912); Taylor v United States 414 US 17 (1973). (Compare as to waiver of the right to trial by jury, Brown v The Queen (1986) 160 CLR 171 at 179-180, 185-187, 193-196, 203-204, 209-211, where the United States decisions are discussed.) In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of convictions in absentia as involving convictions in the absence of the accused, where his absence was the result of conduct on his part which amounted to a voluntary waiver of his right to be present. Further, the history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights. I bear in mind also the force of the observations, as to the correct approach to statutory construction, by Mason J and McHugh JA in the passages I have set out earlier in these reasons. In my opinion, the better view is that a person has not been convicted in his absence within the sense of s 4(3) of the Extradition Act where the absence of that person is the consequence of conduct constituting the voluntary waiver of a right to be present." [underlining added]

Sheppard J agreed at 484. 32 Burchett J came to the opposite conclusion. He said at 504: "As to whether s 4(3), upon its true construction, embraces a person who has left the foreign jurisdiction voluntarily, at a time when he knew the prosecution against him would be proceeding, it is necessary to give further attention to the terms of the provision. The change of the expression 'person … convicted in his absence', employed in the 1973 version of the Act, to the awkwardly repetitive 'person … convicted in the absence of the person' may appear, at first sight, to underline strongly the significance of personal presence at the hearing. But this is probably simply an unfortunate by-product of the draftsman's abhorrence of the masculine pronoun, which is only equalled by his aversion (noted by Gummow J) to the Latin resources of the language. Diverting though the vagaries of the drafting may be, the point to be made is simply that an argument raised during the hearing, grounded on the emphatic asseveration apparently made by the phrase under discussion, is answered by the evolution of the verbiage of the provision. Section 4(3) should be understood, without emphasis, as if it still read 'in his absence'. Yet the deliberate inclusion of cases of final conviction, and the breadth of the language by which it is done ('whether or not the conviction is a final conviction') make it clear that the provision is intended to have a wide application. The draftsman having eschewed technical language, there is really no point at which the natural meaning of the words used can be reined in so as to exclude a case such as the present. As a matter of ordinary English, the appellant is a person who has been convicted in his absence." 33 Gummow J relied upon three factors to support his construction of s 4(3) - the common law position, ordinary usage, and the history of the section. I will address each of these factors.

Common Law Position 34 Reliance on the common law position seems to involve the following process of reasoning. First, there is an assumption that it is right to construe a statutory provision dealing with foreign legal concepts relating to criminal conviction by reference to common law concepts relating to criminal conviction. Then, it is said that under the common law a person must be present throughout their trial for an indictable offence. That requirement is still satisfied where the accused voluntarily waives a right to be present at trial. The accused is then constructively present. In this conceptual framework, an accused who is voluntarily absent is notionally present for the purposes of the common law. Thus, when the section speaks of a person convicted in the person's absence, it is not referring to a person convicted in circumstances where that person has waived their right to be present. 35 There are, it seems to me, difficulties which face the acceptance of this process of reasoning. 36 First, a statute dealing with foreign legal concepts of conviction is unlikely to rely on a common law concept in order to describe circumstances under foreign law which are relevant to the issue. It is more likely that ordinary, non-specialised language would be employed to describe the events occurring under foreign law which attract consequences under the statute. 37 Second, as the extract from the judgment of Gummow J indicates, the requirement that an accused be present at trial is not universal under the common law. 38 And, finally, it might be supposed that this statute would aim for simplicity in expression more than most statutes because it is an instrument which needs to be understood by officials and lawyers of legal systems outside Australia. Reliance on a common law concept of conviction in absence is a subtle and rather abstract basis for construing the section. It lacks the simplicity which might be expected of the particular section. This is especially the case when the simplicity is available on an alternative construction.

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.

conclusion 83 It follows from these reasons that I am of the view that the better construction of s 10(1) is that a conviction in absence means a conviction obtained when the accused was not present for whatever reason. 84 Mr Tzatzimakis was not present at his trial or conviction. Therefore, he was to be treated as an accused for the purpose of the hearing before the magistrate. It was necessary for the Hellenic Republic to produce an authenticated warrant under s 19(3)(a). It failed to do so. The magistrate was correct to order that Mr Tzatzimakis be released under s 19(10)(a). 85 In the light of this conclusion it is unnecessary for me to address the remaining arguments relied upon by Mr Tzatzimakis. 86 The result of this case is that Mr Tzatzimakis succeeds on a technical point of construction. That is regrettable because, apart from the narrow legal basis for his success, his case appears to be without merit. 87 It may, however, be said that the legislature brought this result upon itself. There appears no rational basis for the amendment to s 4(3) in 1985. The Hellenic Republic was represented by counsel appearing on behalf of the Director of Public Prosecutions. No doubt the Director of Public Prosecutions has access to any explanation of the purpose and background of the change. However, counsel for the Hellenic Republic did not provide any reason or explanation for the form of the provision. The best explanation available to the Court from independent research is that no real thought was given to the purpose of the amendment. 88 It was agreed by the parties in the course of argument that the question of costs would be reserved until after the reasons for decision were published. In view of the conclusion I have reached I intend to order that the applicant pay the first respondent's costs of the application on the principle that the costs should follow the event. In order to reflect the agreement of the parties, I will also give liberty to any of the parties to apply within a limited time to vary this order as to costs. 89 Finally, in the course of preparing these reasons, it emerged that there was no formal order of the magistrate in the material before the Court. Apparently, the orders were pronounced orally at the conclusion of the hearing before the magistrate. So that the orders of this Court can operate with respect to a written order of the magistrate, the magistrate made an order in writing on 21 February 2002. This explains why the order of the magistrate which is confirmed by this decision bears a date so distant from the date of the conclusion of the hearing before the magistrate. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate: Dated: 27 March 2002 Counsel for the Applicant: Mr W Stuart

Solicitor for the Applicant: Commonwealth Director of Public Prosecutions

Counsel for the Respondent: Mr Walters QC with Mr Palmer

Solicitor for the Respondent: Christopher Traill & Associates