background
5 These reasons should be read with my reasons for Marku v Republic of Albania [2012] FCA 804 ("Marku (No 1)").
6 As explained in detail in Marku (No 1), the applicant contends that he is Valentin Marku and denies that he is Agostin Lleshaj, who was convicted of homicide and attempted homicide in Albania on 16 December 1994 and escaped from prison in Albania in 1997 while serving a lengthy sentence for those crimes. Agostin Lleshaj was at various times also known or referred to as "Agustin Lleshi". The material exhibited to Ms Folie's affidavit indicates that the name Agustin Lleshi was the result of clerical or spelling errors which occurred in the course and documentation of the proceedings in Albania, but were detected and corrected prior to the conclusion of those proceedings.
7 The Republic of Albania, by an extradition request dated 12 September 2008, requested the extradition of: "Agostin Lleshaj (Lleshi) alias Valentin Marku". On 14 January 2009, the Minister gave a notice under s 16 of the Act which stated that an extradition request had been received from the Republic of Albania in relation to "Agostin Lleshaj".
8 On 3 March 2009, the Republic of Albania applied for a provisional arrest warrant under s 12 of the Act for "Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)". The application was supported by an affidavit of a Senior Constable of Victoria Police sworn on 3 March 2009. On 3 March 2009, a magistrate under s 12 of the Act issued a provisional arrest warrant for "Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)". The warrant stated that "Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)" was an extraditable person for the purpose of the Act in relation to the extradition country.
9 On 11 March 2009, the applicant was arrested under the provisional arrest warrant and was subsequently remanded by a magistrate under s 15 of the Act.
10 Before the s 19 magistrate, the applicant acknowledged that he was Valentin Marku but denied that he was Agostin Lleshaj (or Agustin Lleshi), the person who was convicted for offences in Albania. The s 19 magistrate concluded that on the basis of Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 ("Kainhofer") he was not empowered to determine whether the applicant was an extraditable person.
11 In 2011, the applicant issued the appeal proceeding (VID 1242 of 2011) and the common law proceeding alleging, inter alia, that the s 19 magistrate erred in holding that he was not empowered to determine the identity question (defined as "whether the person on remand is the person convicted of the offences evidenced in the authenticated documents"). In the appeal and the common law proceedings, the applicant seeks a curial determination of the identity question, and by the common law proceeding, seeks that the court make that determination without restriction to the material before the s 19 magistrate (as would apply in the appeal proceeding).
12 In Marku (No 1), I determined (in this proceeding and the related appeal) as separate questions:
(a) that the magistrate pursuant to s 19 of the Act correctly held that it was not part of his function to determine the identity question; and
(b) that if determination of the identity question were part of the s 19 magistrate's task, identity was not a jurisdictional fact.
13 In summary, I concluded that, although the decision of the High Court in Kainhofer was not a case where the person sought for extradition alleged mistaken identity, its pronouncements and reasoning excluded determination of the identity question by a magistrate under s 19 of the Act. In Marku (No 1), I stated at [93] to [103]:
93 As the applicant submitted, Kainhofer did not involve the question of disputed identity which has arisen in this case. The respondent in Kainhofer did not deny that she was the person named in the warrant issued by the extradition country. The High Court in Kainhofer did not confront the question of disputed identity, and, perforce, did not expressly hold that a s 19 magistrate was not obliged or empowered to determine whether a person on remand under s 15 is the person accused or convicted (as the case may be) of the extradition offences evidenced in the authenticated documents.
94 The High Court nevertheless clearly recognised that the s 19 magistrate must assume that the s 15 order of remand and the s 16 notice are valid, and must proceed on the footing that the person on remand is an extraditable person. It also clearly articulated the limited function of the s 19 magistrate under s 19(2)(a). In my opinion, the reasoning in Kainhofer precludes a s 19 magistrate from determining the identity question.
95 Although a hearing under s 15 can (but need not necessarily) precede the giving of a s 16 notice, it can only occur after a provisional arrest warrant has been issued under s 12. Thus, by the time of the s 15 hearing, at least one, and possibly both, of the two relevant repositories of power have already determined that a given person is an extraditable person.
96 It does not follow from the satisfaction of the s 12 magistrate or the Attorney General under s 16 that a given person, "AB", is an extraditable person, that a particular person who is identified as "AB", arrested and brought before the s 15 magistrate, is in fact "AB" who is the subject of the s 12 warrant and also, perhaps, a s 16 notice. The s 15 magistrate must nevertheless be satisfied that the person he or she remands is "AB", the person named in the s 12 warrant, because, as the respondent submitted, "AB" would not otherwise be the person arrested under a provisional warrant.
97 While the s 15 magistrate might therefore order the release of an arrested person who established that he or she is not the person the subject of the s 12 warrant, such an outcome is likely to be extremely rare, and the s 15 hearing would not constitute an effective forum for a contested hearing on the identity question.
98 Significantly to the present case, it is implicit that the s 15 magistrate, in remanding a person in custody or on bail, accepts that the person thus remanded is the person arrested under the s 12 warrant and thus the extraditable person accused or convicted of the extradition offences.
99 In Kainhofer, the High Court stated that the s 19 magistrate must not only proceed on the basis that the person on remand is an extraditable person, but must also (except where there is ex facie invalidity) assume that the s 15 remand order and s 16 notice are valid.
100 If the s 19 magistrate were not required to assume the validity of the remand order, but only that a particular person, "AB", is an extraditable person, there would be more scope for the applicant's construction of s 19. It could then be argued that the s 19 magistrate (although prohibited from determining whether the person named in the s 12 warrant were an extraditable person) could consider whether the person remanded was in fact that nominated person. However, the confluence of the multiple, interrelated assumptions that the s 19 magistrate is, according to Kainhofer, required to make, in my view forecloses that argument.
101 The assumptions that the person on remand has been validly remanded under s 15 and is an extraditable person, necessarily incorporate the underlying assumption that the person who is on remand is, in accordance with s 6, either a person accused or convicted of an extradition offence.
102 The person the subject of proceedings under s 19 is necessarily the person remanded under s 15 who, in turn, is necessarily the person who has been arrested under the s 12 warrant (which required the s 12 magistrate's satisfaction that the person was an extraditable person). The person the subject of the s 19 proceedings is also necessarily a person in respect of whom the Attorney General has given a notice under s 16, which depends, inter alia, on the Attorney General's satisfaction that the person is an extraditable person. The nexus between the person on remand and the extraditable person incorporates a nexus between the person on remand and the person who has been either accused or convicted of the extradition offences.
103 While Kainhofer concerned a different question from that arising in this case, I do not consider that this court is free to depart from its essential reasoning and fundamental statements. The High Court's decision was underpinned by a comprehensive analysis of the statutory extradition scheme as a coherent whole, including the legitimate function and powers of the s 19 magistrate in that context. Its unambiguous description of the s 19 magistrate's restricted role applies beyond the particular issue in Kainhofer.
14 In the amendment application, the applicant submitted that the proposed new grounds did not raise the issues already determined as separate questions and had reasonable prospects of success.
15 In his written submissions dated 27 August 2012, the applicant described the issues raised by the proposed amended grounds as follows:
(a) whether the s 16 notice given by Robert Debus in 2009 in respect of "Agostin Lleshaj" is a s 16 notice in respect of the applicant; and
(b) whether that s 16 notice - given as it was by the Minister for Home Affairs rather than the Attorney-General - is a valid notice under the Act.
16 At the hearing of the application, the issues in dispute narrowed. As the respondent contended, by s 19A(1) of the Acts Interpretation Act 1901 (Cth), a reference in a provision of an Act to a particular Minister is a reference to any one of the Ministers who administer the provision. The applicant accepted that the Minister for Home Affairs is one of the Ministers administering the Attorney-General's Department, and in that capacity administers the Act. Accordingly, s 16 of the Act conferred power on the Minister for Home Affairs to give a notice stating that an extradition request has been received. Therefore, the applicant did not pursue an allegation of invalidity of the s 16 notice on the basis that it was given by the Minister for Home Affairs. Further, as the respondent made clear that it did not oppose the proposed amendment on the basis of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 or delay, materials directed to those matters became irrelevant.
17 It remained necessary to determine whether the applicant should have leave to amend by alleging that the s 16 notice in respect of Agostin Lleshaj was not given in respect of the applicant and the s 19 magistrate thus lacked jurisdiction.
18 Due to ambiguity in the applicant's written submissions, it was necessary to clarify whether the proposed amendment went to:
1. an alleged disconformity between:
(a) the person on remand under s 15 of the Act referred to in s 19(1)(a) and
(b) the person referred to in the s 16 notice; or
2 whether it went, in essence, to the applicant's denial that he is Agustin Lleshaj, the person convicted of the extradition offences and the subject of the extradition request.
19 Counsel for the applicant indicated that the proposed amendment went only to the former, but as explained below, it advances a basis for the court's determination of the identity question.
20 The applicant's written submissions advanced six cascading propositions in support of the proposed amendment, as follows:
1. That an ostensibly valid s 16 notice, which must be a s 16 notice in respect of the person on remand, was a jurisdictional precondition to the s 19 magistrate's powers, and thus a jurisdictional fact.
2. The Attorney-General cannot give a valid s 16 notice in respect of anyone who is not the subject of an extradition request.
3. The s 19 magistrate and any court reviewing his or her exercise of powers must assume the validity of the s 16 notice (unless it is ex facie invalid or quashed).
4. The s 16 notice in this case was valid and had not been quashed.
5. The presumption that the s 16 notice was valid incorporated a presumption that the person named in the s 16 notice is the person sought by the country in the extradition request - in this case, Agostin Lleshaj. The respondent, in seeking to rely on evidence including the extradition request to address the "disconformity" between the name in the s 16 notice and the names identifying the person on remand, erroneously sought to reverse that position, and determine the purport of the s 16 notice by the content of the extradition request. The Court was not, however, entitled to receive evidence extraneous to the s 16 notice to examine its correspondence to the extradition request. While the s 19 magistrate (and the Court) could hear evidence "to determine whether the person on remand is the same person named in the notice", they could not "go behind the notice to see if the Attorney had in mind someone not named in it".
6. "Unless the applicant is in fact Agostin Lleshaj, the s 16 notice is not a notice in respect of him, and the jurisdictional precondition has not been satisfied." Therefore, the Court "can hear identification evidence, to determine whether the applicant (the person on remand) is Agostin Lleshaj (the person named in the notice)".
21 The applicant contended that the above was not inconsistent with Kainhofer or the answers to the separate questions, because the existence of the s 16 notice specified in s 19(1)(b) was a jurisdictional fact, whereas the separate questions and Kainhofer dealt with the tasks of the s 19 magistrate for which jurisdiction arose only if the jurisdictional facts in s 19(1) were established. Kainhofer required the magistrate to assume only non-jurisdictional facts, and did not impose such requirements in relation to the jurisdictional preconditions. Nor did the separate questions involve consideration of the effect of Kainhofer on an asserted dissonance between the jurisdictional preconditions in subsections 19(1)(a) and (b), which arose here because the applicant was remanded as Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku), whereas the s 16 notice was given in respect of 'Agostin Lleshaj'.
22 The applicant contended that if he established under s 19(1)(b) that he was not the person named Agostin Lleshaj (or Agustin Lleshi) but only Valentin Marku, it would follow that the person on remand under the name Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku) was a "non-existent composite person". The s 16 notice could not relate to that non-existent composite person and the condition in s 19(1)(b) would not be satisfied.
23 In summary, the applicant contended that because dissonance between factors said to satisfy jurisdictional preconditions in s 19(1) was involved, the limitations in Kainhofer did not apply. The s 19 magistrate was not only not required to make assumptions, but could not properly make them. In particular, the s 19 magistrate must not mandatorily assume that, provided only that there is a s 16 notice and a person on remand, the s 16 notice related to the person on remand.
24 The applicant acknowledged that evidence could be received about the "identifying details" which were before the Attorney-General when determining which of several possible persons bearing the name in the s 16 notice was intended. He submitted, however, that in this case, the admission of the evidence exhibited to Ms Folie's affidavit would offend, as it would be tendered to alter the purport of, or rectify, the s 16 notice, and to establish that the Attorney-General had in mind someone other than the person identified in the s 16 notice.
25 The applicant submitted at [26]:
This must follow. And for the reasons just given, the Court can hear identification evidence, to determine whether the Applicant (the person on remand) is Agostin Lleshaj (the person named in the notice).