Has the Republic of Hungary complied with the requirements of s 19(2)(a) of the Act?
34 As noted earlier the expression "supporting documents" is defined in s 19(3) of the Act. In order to comply with the requirements of s 19(2)(a) the Republic of Hungary was required to produce to the magistrate the following documents:
· a duly authenticated warrant issued by the extradition country for the arrest of the applicant, or a duly authenticated copy of such a warrant - s 19(3)(a).
· a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of the offence - s 19(3)(c)(i), and
· a duly authenticated statement in writing setting out the conduct constituting the offence - s 19(3)(c)(ii).
35 The principles which govern the operation of s 19 of the Act are set out in Director of Public Prosecutions (Cth) v Kainhofer (supra). In a joint judgment, Brennan CJ and Dawson and McHugh JJ observed at 539:
"The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the "supporting documents in relation to the offence" produced to the magistrate and the description of "supporting documents" in sub-s (3)."
36 There was no dispute before me that a duly authenticated warrant for the arrest of Professor Tímár had been produced to the magistrate. Counsel for Professor Tímár submitted, however, that the Republic of Hungary had failed to produce to the magistrate a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence, as required by s 19(3)(c)(i), and a duly authenticated statement in writing setting out the conduct constituting the offence, as required by s 19(3)(c)(ii).
37 The primary argument advanced in support of this submission was that any "duly authenticated statement" produced to the magistrate in order to meet the requirements of ss 19(3)(c)(i) and (ii) had to be a document or documents separate from the duly authenticated warrant required to be produced pursuant to s 19(3)(a). This conclusion was said to derive from the structure of the Act, having regard to the separate references to "a duly authenticated warrant" in s 19(3)(a), and a "duly authenticated statement" in ss 19(3)(c)(i) and (ii).
38 A second argument advanced in support of this submission was that the bill of indictment which was produced to the magistrate could not meet the description of a "duly authenticated statement" of the type required by ss 19(3)(c)(i) and (ii). This argument was founded entirely upon the decision of Spender J in Todhunter v Attorney-General (Cth) (1994) 52 FCR 228, to which I shall return.
39 I am unable to accept the submission in either of its forms.
40 As regards the primary argument, I can see no reason in principle why an extradition country should not be able to rely upon the contents of a duly authenticated warrant produced pursuant to s 19(3)(a) of the Act to meet the requirements of s 19(3)(c).
41 Almost this very point was considered by a Full Court of this Court in Wiest v Director of Public Prosecutions (1988) 23 FCR 472. That was a case which turned upon whether the requirement of s 17(6) of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") that there be a "duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested" was met where a statement produced to a magistrate made reference to, or incorporated information in, other documents. These other documents included the foreign warrant, which had also been produced to the magistrate.
42 The document which the Federal Republic of Germany had relied upon to meet the requirements of s 17(6) of the 1966 Act was a judgment of the local court in Bonn convicting the appellant in his absence. It was submitted that the contents of that judgment, when combined with the contents of the German warrant, were capable of meeting those requirements.
43 Both Sheppard J (at 482-3), and Gummow J (at 519-20) rejected the submission that s 17(6) required production of a separate self-contained document, making no reference to any other material in any other document.
44 The decision of the Full Court in Wiest was followed in Zoeller v Federal Republic of Germany (1989) 23 FCR 282. A Full Court comprising Lockhart, Gummow and Hill JJ stated at 288-9:
"The German language part of the bundle clearly satisfied the requirement that it was a duly authenticated copy of a warrant and it was not in dispute that the warrant might also qualify as a statement in writing setting out the conduct constituting the offence and contain a statement in writing setting out a description of and the penalty applicable in respect of the relevant offence, see Wiest v Director of Public Prosecutions (1988) 86 ALR 464, per Sheppard J (at 468) and per Gummow J (at 503) which, while dealing with the predecessor to the Act, the Extradition (Foreign States) Act 1966 (Cth), is equally relevant to the present Act." (emphasis added)
45 The decisions of the Full Court in Wiest and Zoeller are binding upon me. Those decisions stand directly in the path of the applicant's contention that a foreign warrant cannot, by itself, or in conjunction with other documents, meet the requirements of ss 19(3)(c)(i) and (ii) of the Act. That contention is therefore rejected.
46 Turning to the second argument, namely, that a bill of indictment such as that produced to the magistrate in the present case could not satisfy the requirements of ss 19(3)(c)(i) and (ii) of the Act; that conclusion was said to be supported by the decision of Spender J in Todhunter v Attorney-General (Cth) (supra).
47 Todhunter was a case in which the applicant was the subject of an extradition request by the United States of America. It is important to note that at the relevant time the process of extradition from Australia to the United States was governed by a treaty which imposed upon the requesting State an obligation requiring the request to be:
"supported by a description of the facts, by way of affidavit, statement or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it." (emphasis added)
48 No obligation of that type is imposed upon the Republic of Hungary by the Act or the regulations. It was in the context of the particular requirement set out in the Treaty governing extradition between Australia and the United States that Spender J observed at 251:
"In my opinion the indictment cannot provide the information necessary for the purpose of Art XI(3)(c). Such a document is not a "description of facts by way of affidavit, statement of declaration"."
49 Todhunter went on appeal to the Full Court - Todhunter v United States of America (1995) 57 FCR 70. Nothing in the judgment of the Full Court casts any doubt upon Spender J's conclusion that, in the context of extradition to the United States, an indictment could not satisfy the requirement that the request be supported by a "description of facts by way of affidavit, statement or declaration". That in itself is scarcely surprising.
50 Spender J was surely correct in holding that the expression "affidavit, statement or declaration" did not include an indictment. A "statement" in the context of that expression is a form of proof, albeit one which may encompass hearsay. The form of proof must bear upon whether there are "reasonable grounds for believing" that an offence has been committed, and that the person sought committed it. An indictment is nothing more than an accusation. It does not purport to be a form of proof, and was never prepared with that objective in mind.
51 Recently, in De Bruyn v Republic of South Africa [1999] FCA 1344 a Full Court of this Court by majority (Hill and Hely JJ) expressly held that a draft indictment could constitute "a duly authenticated statement in writing setting out the conduct constituting the offence". In that case the documents produced to the magistrate included both the draft indictment and a series of sworn statements and documentary exhibits setting out the details of the offences alleged against the appellant. Their Honours regarded the draft indictment as being the critical document in determining whether the requirements of s 19(3)(c)(ii), and therefore s 19(2)(a), had been met. They observed at par 18:
"If the only document which South Africa produced which was capable of satisfying [s 19(3)(c)(ii)] was the draft indictment, then it would have been sufficient for that purpose."
52 The statements and documentary exhibits which set out the evidence by which the allegations were to be proved were regarded as mere surplusage, irrelevant to the task which confronted the magistrate, and perhaps provided only because South Africa had mistakenly sought to satisfy the test of a prima facie case which since 1997 it had no longer been required to meet.
53 Gyles J dissented. His Honour did not, however, conclude that a draft indictment could not satisfy the requirements of s 19(3)(c)(ii) (as interpreted by reference to s 10(2)). He held, rather, that the particular draft indictment did not satisfy those requirements. That was because it did not descend to the actual conduct alleged to constitute the offence, but was limited to a generalised abstraction from underlying conduct not particularised.
54 It is a far cry from the reasoning of Spender J in Todhunter to conclude that an indictment is incapable in law of satisfying the requirements of ss 19(3)(c)(i) and (ii) of the Act. In my opinion an indictment is perfectly capable of constituting a duly authenticated statement in writing setting out the requisite matters contained within those provisions. The critical question is whether, in any given case, it meets those requirements.
55 When one examines carefully the indictment dated 1 February 1995, and adds to it the warrant of 28 May 1997, there is no doubt in my mind that, subject to one matter to be addressed shortly, the Republic of Hungary has produced to the magistrate a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence, and setting out the conduct (viz, the acts or omissions) constituting the offence.
56 The bill of indictment, in particular, is a very detailed document, going far beyond what an indictment in this country would ordinarily contain. It sets out in copious detail the acts or omissions by which the offence is alleged to have been committed. It identifies with precision the applicant's role in hiring those who were to set fire to the holiday home. It also identifies succinctly, but in my view adequately, his role in arranging for his relatives to cause a fraudulent claim to be made upon the insurer. It contains more than mere generalised assertions. It specifies "the time, place and manner of the defendant's acts or omissions" in accordance with the principles laid down in Johnson v Miller (1937) 59 CLR 467 at 486 and 490 per Dixon J, assuming it were required to meet that test.
57 The one matter which initially caused me some concern was the fact that a degree of uncertainty may have been introduced as to "the penalty applicable in respect of the offence" by reason of the apparent disconformity between the initial "Certificate" which stated that damage caused by fraud is "significant" when it exceeds HUF 1,000,000, and the latter version of the "Certificate" which stated that such damage was "considerable" when it exceeds HUF 200,000.
58 Plainly the applicant is entitled to know "the penalty applicable in respect of the offence" for which his extradition is sought. Under Hungarian law, the penalty which is applicable depends upon the extent of the damage caused by the fraud. At the time that the alleged offence was committed the range of one to five years was triggered by a fraud exceeding HUF 200,000. However, this range of penalties is not now triggered unless the fraud exceeds HUF 1,000,000. Does it follow that there is doubt or uncertainty as to the "penalty applicable in relation to the offence"?
59 In my opinion the apparent disconformity between the two "Certificates" does not mean that the requesting State has failed to set out in a duly authenticated statement in writing the penalty applicable in respect of the offence. It is clear that the penalty for that offence is between one and five years' imprisonment. That is so irrespective of whether Professor Tímár's trial, if there be a trial, is conducted upon the basis of the figure of HUF 200,000 which prevailed in 1992, or the figure of HUF 1,000,000 which prevails today.
60 It must be remembered that the case against the applicant is that he defrauded the insurer of approximately HUF 2,000,000. While it would have been preferable had the Republic of Hungary indicated with unmistakable clarity which of the two amounts identified in the "Certificates" would be applicable to any future trial, its failure to have done so does not, in my opinion, constitute a failure to comply with s 19 of the Act.
61 In arriving at this conclusion, I bear in mind the observation of Gummow J in Wiest (supra) at 519:
"An inquiry as to whether a proffered statement meets the description of [the requirement relating to supporting documents] presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies: Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79."
62 It is of course correct to say that the requirements of the Act should be construed strictly, and with a view to ensuring that the personal liberty of an individual whose extradition is sought is protected to the utmost - Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-1 per Hill J. The Act affects the liberty of the subject in a dramatic fashion. The consequences of extradition may well be far more serious than being charged with having committed the equivalent offence in Australia - De Bruyn v Republic of South Africa (supra) at par 28 per Gyles J.
63 It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest, a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.
64 It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition. The test must be whether the document relied upon sets out the essential elements of each offence for which surrender is sought, clearly identifies the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof and gives sufficient particularity to ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made - see Klepp v Gibb (1988) 81 ALR 383 at 393. Substantial compliance with these requirements, as with requirements under the Treaty, is what is necessary - not strict and absolute compliance - Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 401 and 406.
65 In my opinion the requirements set out in s 19(2)(c) of the Act are sufficiently met by the combination of documents produced to the magistrate in this case.