Timar v The Republic of Hungary

"Criminal Code, Section 318, subsection (1): Whoever, for procuring an unlawful lucre, induces or keeps another person in error and produces a prejudice thereby, commits fraud.

Subsection (5), item a: Punishment is deprivation of liberty from one year to five years where the fraud produces significant prejudice."

4 On 9 December 1998 the Commonwealth Attorney‑General issued a notice under s 16(1) of the Act. The notice was issued in relation to an extradition request received from the Republic of Hungary dated 15 April 1998. The Attorney‑General certified that he was of the opinion that the appellant was an extraditable person for the purposes of the Act in relation to Hungary. He also certified that had the conduct for which the appellant's surrender was sought occurred in Australia, it would have constituted an extradition offence in relation to Australia, and that there was no extradition objection in relation to his surrender. 5 On 15 February 1999 the application for the appellant's extradition was heard at the Melbourne Magistrates' Court. The Republic of Hungary produced to the magistrate the bill of indictment, the warrant and a document headed "Certificate" which was dated 24 November 1997. The Certificate certified as to the provisions of ss 33, 34 and 35 of the Code. It set out the provisions under the heading "Prescription of Punishability". It then referred to s 27/A(1) of the Law Decree 5 of 1979 which was said to be "in effect" and to provide as follows:

"(1) The damage caused by fraud is significant, when the damage exceeds one million forints."

The magistrate thought the Certificate defective in two respects. These were its use of the expression "on which the legal facts were realized" in s 34, and the expression "the act of criminal proceedings effectuated by the authorities" in s 35. The magistrate concluded that these deficiencies were of a "minor nature", and pursuant to s 19(4) of the Act he adjourned the proceedings to allow the deficiencies to be remedied. The hearing was resumed on 22 April 1999. The Republic tendered a letter dated 31 March 1999 which clarified the deficiencies contained in the Certificate tendered on 15 February. Accompanying the letter was another Certificate. It set out s 318 of the Code and s 27/A of the Law Decree 5 of 1979. It stated that as at 27 October 1992 (the date of the fire) s 27/A was in the following terms:

"(1) the damages caused by the fraud are considerable, if the damages exceed 200,000 forints."

Counsel for the appellant contended before the magistrate that the Republic had failed to produce the "supporting documents" in relation to the offence for which extradition was sought as required by s 19(3)(c)(i) and (ii) of the Act, and that the documents produced failed to satisfy the requirements of Art 5 par 2(a) and (e) of the Treaty on Extradition between Australia and Hungary made in 1995 ("the Treaty") and incorporated into Australian domestic law by the Extradition (Republic of Hungary) Regulations (No 60 of 1997). The magistrate rejected these submissions and determined that the appellant was eligible for surrender.

THE LEGISLATION 6 Section 11(1) of the Act provides in part as follows:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations ….

Regulations have been made under s 11(1)(a) which modify the operation of the Act in relation to the Republic of Hungary. Regulation 4 of those regulations provides that the Act applies in relation to the Republic subject to the Treaty, a copy of which is set out in the schedule to the regulations. Section 11(6) of the Act provides:

"For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)."

7 Section 19 deals with the determination by a magistrate of eligibility for surrender. Sub‑section (1) provides that where certain conditions are satisfied the magistrate is to determine whether the person whose extradition is sought is eligible for surrender in relation to the extradition offence for which surrender is sought. Other relevant sub‑sections are in part as follows:

"(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;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents ‑ those documents 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;

(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b) the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.

(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5) ….

"A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed."

Section 5 defines "extradition country" as any country declared by the regulations to be an extradition country. Hungary is so declared. Section 5 defines "extradition offence" as an offence for which the maximum penalty is imprisonment for not less than 12 months. Section 21 provides for the review of a magistrate's order under s 19(9).

THE TREATY 8 Article 5 par 2 of the Treaty provides that the request for extradition shall be accompanied:

"(a) if the person is accused of an offence, by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;

(e) … by the text of the relevant provision of the law, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case, a statement of the punishment that can be imposed for the offence …."

THE PRIMARY JUDGE'S DECISION 9 Before Weinberg J the magistrate's decision was challenged on three grounds. The first was that not all the "supporting documents" required by s 19(2)(a) to be produced to the magistrate had been produced. It was said that the Republic had failed to produce a duly authenticated statement in writing setting out the description of, and the penalty applicable in respect of, the offence, as required by s 19(3)(c)(i), or a duly authenticated statement in writing setting out the conduct constituting the offence, as required by s 19(3)(c)(ii). The second ground of challenge was that additional "supporting documents" which, pursuant to s 11(6) and Art 5 par 2 of the Treaty, were required to be produced to the magistrate, had not been produced. This was a reference to a statement relating to the "limitation of proceedings" mentioned in Art 5 par 2 but not in s 19(3). The third ground was that the magistrate had erred in finding that the deficiencies he had identified in the first "Certificate" were of a minor nature, and that the Republic should not have been granted an adjournment in order to remedy those deficiencies. Weinberg J rejected all three grounds.

APPELLANT'S CONTENTIONS ON APPEAL 10 Senior counsel for the appellant handed the Court a document that listed the six issues that he said were raised by the appeal. They were

Whether there is a statement setting out the conduct constituting the offence.

Whether the conduct constituting the offence in the extradition country, or that equivalent conduct, would constitute an extraditable offence in Victoria.

Whether the court is entitled to look at both the warrant and the bill of indictment for the purposes of s 19(3)(c)(ii).

Whether the documents required to be produced under the Treaty have been produced.

Whether the documents produced satisfy s 19(3)(c)(i).

Whether an adjournment should have been granted under s 19(4)(b).

The second so‑called issue had not been raised before the magistrate, was not a ground of review before the primary judge, was not on the judge's list of the matters he identified as in issue before him, and was not referred to in his judgment. In those circumstances we declined to hear argument on the point.

Can the warrant and indictment be looked at together? 11 The appellant contended that it was not permissible for the court to look at both the arrest warrant and the bill of indictment for the purpose of determining whether there had been produced for the purposes of s 19(3)(c)(ii) a duty authenticated statement in writing setting out the conduct constituting the offence. It was said that regard could not be had to the warrant, because s 19(3)(a) showed that the s 19(3)(c)(ii) statement was something other than the duly authenticated warrant referred to in sub‑s (3)(a). Counsel acknowledged that this was a difficult submission to advance in view of authorities opposed to it. 12 In Wiest v Director of Public Prosecutions (1988) 23 FCR 472 a Full Court (Sheppard, Burchett and Gummow JJ) considered s 17(6) of the Extradition (Foreign States) Act 1966 which required production to the magistrate of

"(A) a duly authenticated foreign warrant in respect of the person issued in the foreign state …;

(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 …."

The structure of s 17(6) is essentially the same as that of s 19(3)(a) and (c), and the argument based on the express mention of the warrant in s 19(3)(a) was available in relation to s 17(6). The submission that in order to satisfy requirement (c) in s 17(6) there must be produced a separate document that is self‑contained, in the sense that it requires no reference to other materials produced to satisfy requirements (A) or (B), was rejected by Sheppard J at 482‑483 and Gummow J at 519‑520. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 289 a Full Court (Lockhart, Gummow and Hill JJ) accepted Wiest as authority for the proposition that the s 19(3)(a) warrant may also qualify as a statement for the purposes of par (c)(i). McDade v The United Kingdom [1999] FCA 1868 (French, Marshall and Kenny JJ) and De Bruyn v Republic of South Africa [1999] FCA 1344 (Hill and Hely JJ) are to the same effect. In the present case the primary judge understandably regarded himself as bound in the light of Wiest and Zoeller to reject the self‑standing argument. We too should follow the earlier cases unless we are convinced that they are clearly wrong. See Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 693‑694. We are not so convinced. Indeed we think the opinion expressed in them is correct. There is no reason in principle why an extradition country should not be able to rely upon the contents of an authenticated warrant produced pursuant to s 19(3)(a) to meet the requirement in par (c).

Is the indictment capable of satisfying the requirements of s 19(3)(c)? 13 In reliance on the observations of Spender J in Todhunter v Attorney‑General (Cth) (1994) 52 FCR 228 at 251 the appellant submitted that a bill of indictment such as that produced to the magistrate in the present case was not capable of being a statement for the purposes of s 19(3)(c)(ii). In Todhunter Art XI(3)(c) of the treaty required the request for extradition 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". Spender J held that an indictment was not a "description of facts by way of affidavit, statement or declaration". Article XI(3)(c) was plainly directed to different forms of proof ‑ affidavit, statement or declaration. The proofs were required so as to determine whether reasonable grounds were shown that an offence had been committed and that the person sought committed it. An indictment is not a form of proof; it is but an accusation. In our view Spender J's decision was plainly correct, and equally plainly has no application to s 19(3)(c)(i) or (ii). In De Bruyn Hill and Hely JJ held that a draft indictment could constitute a statement for the purposes of s 19(3)(c)(ii). Counsel for the appellant sought to persuade us that De Bruyn was clearly wrong. He did so by noting that the Todhunter argument had not been put to the Court in De Bruyn. That is true. But as appears from what we have just said, Todhunter was a decision on a provision quite unlike s 19(3)(c).

Is there a statement setting out the conduct constituting the offence? 14 For the purposes of the submission that there was no statement "setting out the conduct constituting the offence" for the purposes of s 19(3)(c)(ii), the appellant accepted that both the warrant and the indictment could be looked at. It was said that while the material established that the appellant's wife and her father owned the property, it was not clear to whom the loan was made that was repaid out of the insurance money. Nor was it established that the wife or father‑in‑law knew of the appellant's alleged involvement in the fire. This submission misunderstands the function of the magistrate under s 19. In United States of America v Holt (1994) 49 FCR 501 at 504 a Full Court (Foster, Heerey and Whitlam JJ) explained that function:

"1. The magistrate does not have to be satisfied that the 'conduct constituting the offence' as set out in the s 19(3)(c)(ii) statement constitutes the foreign offence described in the s 19(3)(c)(i) statement ….

2. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement would constitute an offence under the law of the State or Territory of Australia or Commonwealth law that is punishable by not less than 12 months imprisonment …."

See also Zoeller at 299‑300, Unkel v Director of Public Prosecutions (1990) 95 ALR 44 at 49 and McDade at pars 14 and 16. As we have pointed out in par 10, it was not part of the appellant's case before the magistrate or the primary judge that the conduct constituting the offence in relation to Hungary would not have constituted an extradition offence in Australia if the conduct had taken place here, and we did not allow that issue to be agitated on the appeal. The appellant's case was that the material in the warrant and the indictment did not establish an offence under the law of Hungary. As we have said, that is not the purpose of a s 19(3)(c)(ii) statement, and it was not the magistrate's task to measure the contents of the statement against the elements of the foreign offence. Nevertheless, a person is not eligible for surrender unless the supporting documents have been produced to the magistrate. That remains so even though, in the present case, one of the documents serves no purpose because the issue to which its production is relevant is not an issue in the case.

15 In McDade at pars 16 and 17 Kenny J, with whom French and Marshall JJ agreed, said:

"in requiring a statement setting out 'the conduct constituting the offence', s 19(3)(c)(ii) requires a statement of the 'acts or omissions' which are said to make up the offence in the requesting State: see s 10(2). A simple definition of the offence will not suffice: see De Bruyn …. The relevant 'acts or omissions' are the elements or ingredients of the offence, and not the particular evidence that is supposed to prove them: see Wiest at 519 and Zoeller at 294. … What is being sought is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence. The statement must 'speak with sufficient specificity' and coherence to serve its purpose …. The statement must be such as to permit the magistrate charged with conducting proceedings under s 19 to be satisfied, one way or the other, as to whether the conduct said to constitute the offence in the extradition country or the equivalent conduct, would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: see .… De Bruyn at par 7 per Hill and Hely JJ.

Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a 'matter of practical judgment and assessment, not for over‑zealousness in discerning deficiencies': Zoeller at 294 and Wiest at 519."

16 In our view the warrant and the indictment, and especially the indictment, satisfy the requirements of s 19(3)(c)(ii). We agree with the primary judge when he said (par 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 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."

Is there a statement setting out the penalty applicable to the offence? 17 Section 19(3)(c)(i) requires production of a statement "setting out a description of, and the penalty applicable in respect of, the offence". The appellant contended that the documents produced to the magistrate did not describe the penalty applicable to the offence. This was because of the disconformity between the initial Certificate, which stated that damage caused by fraud is "significant" when it exceeds HUF1,000,000, and the second Certificate which stated that such damage is "considerable" when it exceeds HUF200,000. At the time the alleged offence was committed the penalty was triggered by a fraud exceeding HUF200,000. At the date of the proceeding before the magistrate, the trigger was HUF1,000,000. The submission must be rejected. The penalty for the offence is not the trigger amount but imprisonment for between one and five years. That penalty is clearly stated in the warrant for arrest and in the second Certificate. The disconformity in the trigger amounts is of no significance. The claim is that the appellant defrauded the insurer of approximately HUF2,000,000. The penalty range described will apply whether the appellant's trial is conducted on the basis of the trigger of HUF200,000 that prevailed in 1992 or of HUF1,000,000 that prevails today. The primary judge correctly decided that the disconformity between the trigger amounts did not amount to a failure to state the penalty applicable to the offence.

Treaty documents/adjournment 18 It was apparently common ground before the primary judge that s 11(b) requires a magistrate to be satisfied as to the sufficiency of the documents that, pursuant to the terms of a treaty, must accompany a request for extradition as well as those the subject of s 19(2). Approaching the matter on that basis, the only requirement contained in Art 5 par 2(e) of the Treaty that is not found in s 19 of the Act is that there be a statement of the relevant law "relating to the limitation of proceedings". The primary judge concluded that all the documents referred to in Art 5 par 2(a) and (e) had been produced to the magistrate. The appellant's argument on the appeal was that the first Certificate did not satisfactorily state the law "relating to the limitation of proceedings". The first Certificate noted that s 33 of the Code prescribed a limitation period in the case of crimes other than felonies of "the period of time equal to the upper limit of the punishment, but not less than by the elapse of three years". Section 35(1) was set out. It provided that:

"Prescription shall be interrupted by the act of criminal proceedings effectuated by the authorities acting in criminal cases against the perpetrator due to the crime. The period of time of prescription shall restart on the day of interruption."

It was contended that the words "by the act of criminal proceedings effectuated by the authorities" were vague, uncertain and incomprehensible, and could not stand as a statement of the law relating to the limitation of proceedings. It was accepted that the deficiency was cured by the letter that accompanied the second Certificate. The letter stated:

"In Section 35 of the Hungarian Criminal Code it is stated that lapse of time shall be interrupted by the act of criminal proceedings effectuated by the authorities acting in criminal cases against the perpetrator due to the crime. This provision means that every single act of this kind interrupts lapse of time. Therefore the act of the Central District Court of Pest by issuing the arrest warrant against Mr Timar Peregrin on 28 May 1997 also interrupted lapse of time, making it start again and last until 28 May 2002."

However, it was said that the satisfaction of the limitation requirement should be measured against the first Certificate because the magistrate erred in allowing an adjournment to enable the deficiency in that Certificate to be cured by the later letter. Section 19(4) requires the magistrate to adjourn the proceedings to allow deficiencies in the documents that he "considers to be of a minor nature" to be remedied. Two matters in the first Certificate were thought to be uncertain of meaning. One was the language of s 35 relating to the limitation period. The other was the uncertain meaning of the expression in s 34 of the Code ‑ "the day on which the legal facts are realised". The letter accompanying the second Certificate explained the limitation point and made clear that the word "realized" had the meaning of "completed", as in "the day on which the facts constituting the offence were completed". Whether a deficiency is minor or not minor is committed to the magistrate and not to the reviewing court. The question was whether it was open to the magistrate to treat the deficiencies as minor. In our view it was. Both were difficulties arising from the translation of documents which resulted in concepts with which a common lawyer would not be familiar.

19 The way in which the Treaty part of the appeal was argued for the appellant (see par 18) makes it unnecessary for us to decide whether, as the appellant asserts and the respondent now denies, s 11(6) requires a magistrate to determine the sufficiency of documents required by the terms of a treaty to accompany a request for extradition. However, since that issue was canvassed in the parties' written submissions and since we have formed a clear view on the point, we should say that s 11(6) does not require the magistrate to determine that question. Sub‑sections (1) and (6) of s 11 are set out in par 6. While s 11(1)(a) provides that the regulations may state that the Act applies in relation to an extradition country "subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty", sub‑s (6) provides that no such limitation etc has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in s 19(2)(a), (b), (c) or (d). Independently of authority that seems to us clearly to state that the limitations, conditions, exceptions and qualifications contained in the regulations do not expand the role of a magistrate under s 19. Further, Art 5 of the Treaty is concerned with the documents that must accompany the request for extradition which, under the Act, are considered by the Attorney‑General. The view we favour accords with authority. Thus in Prabowo v Republic of Indonesia (1997) 74 FCR 599 at 606 a Full Court (Wilcox, Moore and Tamberlin JJ) said:

"Section 11 allows the Act to be made applicable to a specified extradition treaty subject to the limitations etc necessary to give effect to a bilateral treaty. Where this course is taken, the limitations etc apply. However, with the exception of limitations concerning documents ‑ see par (b) of s 19(2) ‑ those limitations are not the concern of the magistrate. They are the concern of the Attorney‑General."

Section 19(2)(b) is limited to documents that a treaty requires to be produced to the magistrate. Nothing in Art 5 requires documents to be produced to a magistrate. In Papazoglou v Republic of the Phillippines (1997) 74 FCR 108 at 130 another Full Court (Wilcox, Tamberlin and Sackville JJ) said:

"It is clear that certain issues relating to extradition applications are reserved exclusively for the consideration of the Attorney‑General, rather than a magistrate acting under s 19 (or, for that matter, a court reviewing the magistrate's order under s 21). For example, in proceedings under s 19 of the Extradition Act, s 11(6) provides that 'no limitation, condition, qualification or exception' contained in a bilateral extradition treaty has the effect of requiring or permitting a magistrate to be satisfied of any matter other than those set out in s 19(2). Thus, should a bilateral treaty create an additional exception to the circumstances in which extradition is required, it is the Attorney‑General who is to determine whether the exception applies: see s 22(3)(e)."

See also Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339. For the foregoing reasons we are of the view that the primary judge was correct when he said it "is no part of the task of a magistrate hearing an application pursuant to s 19 of the Act to determine whether the requiring State has met an obligation imposed under a treaty in relation to documents required to accompany a request for extradition".

CONCLUSION 20 The appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg, the Honourable Justice Emmett and the Honourable Justice Hely.

Associate: Dated: 7 June 2000 Counsel for the Appellant: J V Kaufman QC and A M Thomas

Solicitors for the Appellant: Trumble Szanto Lawyers

Solicitor for the Respondents: Australian Government Solicitor