Karsten v Federal Republic of Germany

The common factual ground here is that Mr Karsten indicated his consent to being extradited and, as I understand it, there is no dispute that the learned Magistrate went through the necessary steps under s 18(2) which requires a magistrate, unless they have reason to believe the consent was not voluntary, to advise the person of the effect and consequences of their determination to surrender. There is no specific provision in the Act relating to a variation of that determination.

His Honour's reasons for decision record the submission made through the Commonwealth Director of Public Prosecutions that the Supreme Court had:

… no general jurisdiction … to entertain firstly an appeal from a s 18 decision, and specifically no jurisdiction to permit a variation in the form of consent that was on the papers at least given at that hearing.

The question before Connolly J was formulated by his Honour as being "whether or not this Court has the jurisdiction to entertain an application to allow Mr Karsten to withdraw his consent to an extradition": [2007] ACTSC 20 at [1]. That question was answered in the negative. His Honour did, however, go on to further observe:

There is a general discretion in the Attorney in relation to the extradition process, and it seems to me that the question of the voluntariness of consent would be a question that the Attorney would need to satisfy himself of. Clearly, if a situation was one where a person had no English skills at all, or had been tricked in some way into agreeing to consent, that would be a matter that would necessarily attract attention and the Attorney and [sic] would need to make a determination to that effect.

Before the Supreme Court Mr Karsten was legally represented. A more general submission advanced on the hearing of the present Motion before this Courtthat Mr Karsten was thereafter represented by counsel, it is considered, should not be accepted. What advice was given to Mr Karsten by his then legal representative when appearing in the Supreme Court remains, not surprisingly, unknown. 47 Relevantly, however, by the time the s 22 determination was made, the only judicial challenge to the s 18 decision had been heard and resolved against Mr Karsten. In such circumstances it is considered that the requirements of s 22 had been met, namely that there was a lawful "order of a magistrate made under section 18", and that any condition precedent to the exercise of the power conferred by s 22 had been satisfied. 48 Even if the construction of s 22 which has been given to that section be incorrect, it is considered that it would be an abuse of process to now permit the Applicant to advance such a contention. It would be an abuse of the process of the Court for a person the subject of extradition proceedings to seek to challenge an order made pursuant to s 18; to be informed that the means of challenge then being invoked were not available to him; to thereafter await a determination made under s 22; and, when that determination is adverse, to be permitted to then revert to his earlier position by asserting that there was no power to make the s 22 determination. 49 Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13]-[15] per Rares J, 99 ALD 235. See also Brock v Minister for Justice & Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination. 50 The separate and discrete administrative steps set forth in the 1988 Act may each be the subject of applications for judicial review. The importance of each of those steps being discharged in accordance with law is self-evident. The serious consequences to a person of an order for extradition not made in accordance with law may also be readily accepted. 51 But the Court should not endorse a course whereby a party is free to initially seek to challenge, in this case the order under s 18 of the 1988 Act; to thereafter abandon any challenge to the making of that order; to permit the extradition process to proceed, upon the basis that there is no legal impediment to the Attorney making a determination under s 22; and thereafter again seek to assert the invalidity of an order previously made. Presumably, had that determination been favourable to the Applicant, it would not have been asserted on his behalf that he could not take advantage of such a favourable decision because a condition precedent to the exercise of the s 22 power had not been satisfied. Conversely, when the determination is adverse to the Applicant, it is considered to be an abuse of process to permit him to now assert the invalidity of the s 18 order. 52 Reason for reservation in reaching a conclusion as to an abuse of process is, however, occasioned by the Applicant's Affidavit filed in the present proceedings on 24 September 2007. In that Affidavit Mr Karsten states:

...The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]-[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

• In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
• There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
• Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
• Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 57 In the present proceedings it is recognised that, when resolving the Minister's Motion, it is not necessary to conclude that Mr Karsten's case is either "hopeless" or "bound to fail". It is, however, considered that it has "no reasonable prospect[s] of success." It is considered that Mr Karsten has no reasonable prospects of any conclusion being reached other than that: (a) he is an "extraditable person" within the meaning of ss 6 and 16 of the Extradition Act; (b) the offence in respect of which his extradition is sought is an "extradition offence" within the meaning of ss 5 and 16 of the Act; and (c) he is an "eligible person" under s 22 of the Act.

Miscellaneous Matters 58 Two further miscellaneous matters should be mentioned lest it be thought that they have been overlooked or not considered. 59 During the course of directions hearings held prior to the hearing of the present Motion, the Applicant requested that copies of documents be translated from German to English. The documents the subject of the requests were not then identified with any precision. 60 The requests for the provision of translated documents were thus previously refused. The legal and factual issues the subject of the Further Amended Application were considered to be within a sufficiently narrow compass that a request for the translation of unspecified documents was not considered necessary for the resolution of any issue. At the hearing of the Respondent Minister's Motion, the request for the translation of documents was revisited and the generic categories of documents which may have assumed relevance further pursued. Even confined to more specific categories, it was considered that the hearing of the Motion should proceed. The documents then identified as potentially being of some assistance to the contentions being pursued by Mr Karsten were not considered to have such relevance as to justify any further postponement of the Minister's Motion. 61 The second of the matters which should be addressed arises out of a request made by the Applicant by way of letter dated 12 December 2007 to the District Registry of the Court that he be provided with six copies of "transcripts to be made available to me free of charge… The transcripts", he maintained, "are required due to poor video link quality and to obtain legal advice in my self represented case". That request is also refused. The transcripts of what transpired at directions hearings prior to hearing are not considered to have any immediate relevance to the issues to be resolved on the present Motion. 62 The Court may, in an appropriate case, order or make arrangements for the provision of transcripts to litigants free of charge or may make arrangements for a litigant to have access to a transcript, either by way of a computer or on loan from another party. An appropriate case may include circumstances where a litigant is unable financially to obtain his own copy of a transcript or where it is necessary in the administration of justice that a copy be made available. Unless the utility of making such arrangements is identified, it remains difficult to consider why such orders or arrangements should be made.

Orders 63 The orders of the Court are:

1. The name of the Second Respondent be amended to "Minister for Home Affairs".
2. The Application filed on 17 July 2007, as amended by way of a Further Amended Application filed on 7 November 2007, be dismissed.
3. The Applicant to pay the costs of the Second Respondent. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 14 March 2008

Applicant: In person

Counsel for the Second Respondent: Mr T Glover (Australian Government Solicitor)

Date of Hearing: 28 February 2008

Date of Judgment: 14 March 2008

In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word 'accused' in s 6(a)(i) of the Act, noting: It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.

The Attorney-General cannot be expected to be an expert in foreign law: Williams v Minister for Justice and Customs 157 FCR 286 at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer (1995) 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person.

His Honour continued:

Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested. …

Each warrant, on its face, was termed a 'warrant'. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer (1995) 185 CLR 528 at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i).

An appeal from this decision has been allowed in part, although it was not necessary for the Full Court to make any comment in relation to the above observations of the learned trial judge: Minister for Home Affairs v Tervonen [2008] FCAFC 24. See also Cabal v United Mexican States (No 3) [2000] FCA 1204 at [149] and [153], 186 ALR 188 per French J. 20 The statutory expression "in force" is to be construed as requiring consideration simply to be given to "whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings": Bertran v Vanstone [2000] FCA 359 at [55], 173 ALR 63. 21 For the purposes of the Motion, any challenge to the manner in which the Minister exercised the power conferred by s 16(2) on this basis has no reasonable prospects of success. 22 Moreover, such further evidence as is now before the Court on the present Motion seems to amply support a finding that the warrant remains in force and that there is no reason to question that conclusion, even now. Thus, an "Opinion" dated 16 April 2007, as subsequently provided under the signature of the Senior Chief Public Prosecutor for the Hannover Department of Public Prosecutions, states in part as follows: …The detention order by the Regional Court of Hannover dated September 16, 2003 was generated in the manner provided by law and fulfils the rules of the StPO [German Code of Criminal Procedure] under formal aspects as well. The allegation of the prosecuted person that the detention order had expired in December 2005 is not true. According to StPO, an order for detention awaiting trial shall only become invalid, when it is lifted by a court…

That Opinion stands in contrast to an affidavit filed in proceedings in the Australian Capital Territory by Mr Karsten, being an annexure to an Affidavit filed in the present proceedings in this Court, that asserts: … The warrant provided with the extradition request expired in December 2005 according to my sources …

No further details were provided nor were the "sources" identified. For present purposes, it is considered that no conclusion is open other than that the warrant remains "in force". Further written submissions filed on 5 March 2008 by Mr Karsten seek to annex further materials. Some of these materials are in German and have not been translated into English. To the extent that the Court has been able to consider those materials, the conclusion remains the same. 23 Notwithstanding such consideration as has been given to materials that were not before the Minister when he reached his "opinion" for the purposes of s 16, it must be recalled that the inquiry should be directed to a review of those materials that were before the Minister, being the basis upon which he formed his "opinion". Confined to those materials, the Minister had a sound basis upon which he could issue the notice. 24 Any deferral of the hearing of the present Motion to permit the Applicant a yet further opportunity to support his contention is not considered warranted. The Applicant has made numerous references in the past to a desire to translate documents from German to English to advance his case. It is, however, considered that he has had ample opportunity to file such evidence as he considers relevant. The opportunity in fact extended to Mr Karsten to file further materials questioning whether or not the warrant remains "in force", or any other matter, has largely been an opportunity extended to an unrepresented party to determine whether those further materials may have disclosed some error not otherwise apparent. Given that the focus of any review of the decision of the Minister to issue the notice in October 2006 must be a scrutiny of the materials then before the Minister, being the materials upon which he formed his "opinion", any further pursuit of this factual matter is considered neither relevant nor warranted.

An Extradition Offence: "Not less than 12 Months"? 25 The Applicant further seeks to focus attention upon the requirement that an "extradition offence" is relevantly an offence for which the maximum penalty was "imprisonment, or other deprivation of liberty, for a period of not less than 12 months". The Applicant's contention is that the Respondent Minister "could not be satisfied that the statutory requirement was satisfied". Section 16, it should be noted, employs the language of an "opinion" being formed that the conduct of a person constitutes an "extradition offence". 26 Again, it is difficult to see how the Applicant's contention can be sustained. The Warrant of Arrest issued in September 2003 states in part as follows: The actions of the accused constitute the criminal offence of attempted incitement to murder under Paras. 211, 30 Section 1, 49 Section 1 of the German Criminal Code. The wording of the above provisions reads as follows, insofar as it is relevant in this case: Para. 2.11 Section 1 The murderer shall be sentenced to life imprisonment. … Para. 30 Section 1 Sentence 1 and 2 Whoever attempts to induce or incite another to commit a serious criminal offence shall be punished according to the provisions governing an attempt to commit a serious criminal offence. However, the punishment shall be mitigated pursuant to Para. 49 Section 1. Para. 49 Section 1 No. 1 It mitigation is prescribed or permitted under this provision, then the following shall apply to such mitigation: 1. Imprisonment for a term of not less than three years shall be substituted for life imprisonment. Proceedings are not subject to a statute of limitations.

Given the terms of the warrant, the conclusion may readily be reached that the offence for which the warrant against the Applicant was issued was an offence for which the maximum penalty was "imprisonment, or other deprivation of liberty, for a period of not less than 12 months" within the meaning of the definition of an "extradition offence" in s 5 of the Extradition Act. The request for extradition dated 21 April 2006 also stated that: … the minimum punishment provided by law shall, in the case at hand, amount to three years of imprisonment. The maximum imprisonment is fifteen years.

27 As at the date when the s 16 notice was given, the material then available provided a sound basis for the requisite "opinion" being formed. A discrete submission advanced on behalf of the Respondent Minister again focused attention upon the confined ambit of such judicial review as is available: Buck v Bavone. Section 16(2)(a)(ii)  -  as with s 16(2)(a)(i)  -  again vests the decision-making function in the Attorney (or the Minister) if he is "of the opinion" that the person involved has committed an "extradition offence." That submission is again accepted.
28 A contrary conclusion advanced by Mr Karsten was based upon what was said to be a discrepancy between what the German Criminal Code may have provided in terms, and the sentences in fact imposed upon others involved in the events giving rise to the charges against him. That "parity of sentencing" as urged by Mr Karsten dictated a different conclusion. It is considered that the "opinion" formed on 24 October 2006 was one open to be reached by the Minister on the materials before him and one which should be accepted for the purposes of the present Motion.
29 Albeit subsequent to the point in time when the s 16 notice was issued on 24 October 2006, it may further be noted that there was no later reason to revisit that conclusion. The "Opinion" provided in April 2007 thus also states in part as follows:

… German police officers are not authorised to make offers to terminate criminal procedures. Additionally, execution of imprisonment may, under Section 56 StPO, only be suspended on probation, when it does not exceed 2 years. In the case concerned here however, the minimum punishment provided by law is 3 years of imprisonment. One could only go below this when other circumstances, which are regulated by law, come up. Such specific circumstances are not recognisable, however. For this reason, probationary suspension of the imprisonment to be imposed when a sentence is passed would, at the current state of knowledge, not be possible …

30 In any event, the approach being urged upon the Court by Mr Karsten to again impose a requirement upon the Attorney-General or the Minister to inquire into the penalty likely to be imposed is an approach which should be rejected. The definition of "extradition offence", it has been said, is "not concerned with whether there are other alternate and lesser possible penalties, nor with the actual penalty likely to be imposed on the person whose extradition is being sought": Dutton v O'Shane [2003] FCAFC 195 at [41], 132 FCR 352 at 362 per Finn and Dowsett JJ.
31 It is thus considered that there is no doubt that the offence for which extradition has been sought is in respect of an "extradition offence" as defined in s 5 of the Extradition Act or, alternatively, there was and remains a basis upon which the Respondent Minister could lawfully form that "opinion".

An Eligible Person: Sections 18 and 22? 32 It is understood that the Applicant's contention in respect of the determination made under s 22 is that he was not an "eligible person" because "the applicant was not the subject of a valid order of a magistrate as the applicant's consent was not given voluntarily but under an operative mistake of fact". 33 The "operative mistake of fact" to which the Applicant refers has previously been the subject of submissions, including the following statement in a letter from the Applicant to a Senior Legal Officer of the Extradition Unit dated 12 March 2007: My consent to being surrendered to the Federal Republic of Germany under s 18 of the Extradition Act 1988 was not given voluntarily. On 26/02/07 in the Supreme Court the District Public Prosecutor described my case as unusual and Justice Connolly considered my consent as have been tricked. On 20/12/06 Magistrate Madden did not conduct or suggest any proceedings under s 19.

34 The contention of the Applicant is simply that s 22(1)(a) refers to an "order of a magistrate made under section 18" and that there was no such order because the order as made was made in circumstances where the consent of the Applicant had not been given voluntarily. An order lawfully made under s 18, upon such a contention, is a condition precedent to the making of a lawful determination pursuant to s 22.
35 There are a number of reasons why this contention of the Applicant must fail.
36 First, by its terms, s 22(1)(a) requires there to be an "order of a magistrate made under section 18". In the present case, the order was one made pursuant to s 18(2). That subsection relevantly applies where a person "informs the magistrate that he or she so consents" and clothes the magistrate with power "unless the magistrate has reason to believe that the consent was not given voluntarily".
37 In the present proceedings there is not understood to be any dispute as to Mr Karsten in fact informing the magistrate that he did consent. Nor is there understood to be any dispute but that the magistrate had no "reason to believe that the consent was not given voluntarily".
38 For present purposes it may be assumed that a condition precedent to the authority of the Attorney-General to make a lawful determination under s 22(2) is the status of a person against whom such a determination is made as an "eligible person." It may further be assumed that that status in the present proceedings requires there to have been an "order of a magistrate made under section 18." An "order" made in excess of the jurisdiction conferred upon a magistrate by s 18, it may further be assumed, would not be an "order" at all but would be a nullity. But the power or authority conferred on the magistrate in the present proceedings is a power or authority to make an "order" where a person has "inform[ed]" the magistrate that he consents and where the magistrate has no "reason to believe that the consent was not given voluntarily". An undisclosed absence of consent or an undisclosed basis upon which consent has ostensibly been given does not strip the magistrate of power to make an order under s 18(2)(b)(i). It may be noted that the warrant as issued under s 18(2) recited in part as follows:

WHEREAS: … (c) Christoph Herman Karsten has informed me that he consents to being surrendered to the Federal Republic of Germany… (d) I have no reason to believe that the consent was not given voluntarily; …

The conditions precedent to the exercise of the power conferred by s 22 would thus appear to have been satisfied. 39 Employing the language apposite to an analysis of "jurisdictional fact", the jurisdictional facts for the purposes of s 18 would not be whether or not a person has in fact consented; the jurisdictional facts would at best be whether a person has "inform[ed] the magistrate that he or she so consents" and whether a magistrate "has reason to believe that the consent was not given voluntarily". 40 Insofar as inquiry may be directed to the former of these matters, the difficulty confronting the Applicant is the simple fact that whether or not he consented, albeit for a mistaken reason, is not on any view of the express terms of s 18 a constraint upon the power conferred upon the magistrate. Why the Applicant informed the magistrate that he consented is of no immediate relevance; he either "inform[ed]" the magistrate of his consent or he did not. And in the present proceedings he did so inform Magistrate Madden. 41 The challenge advanced in the present proceedings focussed upon submissions as to an absence of consent. No submission was advanced in the alternative seeking to contend that the magistrate had any "reason to believe" that the consent of which he was being informed "was not given voluntarily". The importance of a magistrate both being informed that a person consents, and not having any reason to believe that that consent "was not given voluntarily", cannot be underestimated. And it is of importance that s 18(2) is expressed, not in terms of a magistrate having to form a positive belief that a person is consenting voluntarily, but rather is expressed in terms of being obliged to take the steps outlined in s 18(2) "unless [he] has reason to believe that the consent was not given voluntarily". The responsibility entrusted to a magistrate is not discharged upon a person informing him of his consent; if he has reason to question whether that consent is being voluntarily given, he should thereafter satisfy himself as to the basis upon which a person is consenting. The nature and content of the responsibility of a magistrate in such circumstances need not be pursued. In the present case, no submission was advanced that the magistrate had any reason to question the voluntariness of the consent of which he was being informed. Nor has any fact or circumstance been referred to in the present proceedings which could form the basis of any such submission. 42 Whether or not either of these two fields of inquiry can be properly characterised as "jurisdictional facts" thus need not be resolved. The resolution of whether a fact is jurisdictional or not remains a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [39], 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). Less difficulty may be experienced in characterising as a "jurisdictional fact" a question as to whether a person has informed a magistrate of his consent; greater difficulty, however, may be experienced in characterising as "jurisdictional" whether a magistrate had "reason to believe that the consent was not given voluntarily". The potential inconvenience consequent upon construing s 18 in such a manner may be a telling reason to conclude that such matters are not "jurisdictional": cf Brock v United States of America [2007] FCAFC 3 at [30] per Black CJ, 157 FCR 121. 43 An absence of consent (if established) - it was accepted by the Respondent Minister in the present proceedings - was, however, a consideration relevant to the exercise of discretion conferred by s 22(3)(f). And, submitted the Minister, Mr Karsten's submission as to lack of voluntary consent was a submission in fact considered by the Minister. Given the invitations extended to Mr Karsten to make submissions prior to a determination being made pursuant to s 22, and given the content of submissions in fact made (including submissions as to his lack of consent), that submission of the Minister is accepted. 44 Second, to now seek to impugn the surrender determination made pursuant to s 22 by reason of an asserted absence of voluntary consent when the s 18 decision was made is considered to be an abuse of process. 45 At the time when the surrender determination was made under s 22 in July 2007 there had necessarily been in the present case the earlier decision of the magistrate made under s 18. That was the decision of the magistrate in December 2006. 46 Intervening, namely in February 2007, was the decision of Connolly J of the Supreme Court of the Australian Capital Territory: R v Karsten [2007] ACTSC 20, 208 FLR 324. In those proceedings Mr Karsten sought to challenge the decision of the magistrate. Justice Connolly entertained a Notice of Appeal against the decision of the magistrate. Relevant to the order made by the magistrate are the following observations of his Honour: