Director of Public Prosecutions of the Cth & Anor v Kainhofer

[1995] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B42 of 1994

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS OF THE COMMONWEALTH and REPUBLIC OF AUSTRIA

Applicants

and

MARIA KAINHOFER

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 1995, AT 11.54 AM

Copyright in the High Court of Australia

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with MR N.J. WILLIAMS, for the applicants.  (instructed by W. Barber, Commonwealth Director of Public Prosecutions)

MR. J.A. JERRARD, QC:   I appear with MR R.I. CAMERON for the respondent.  (instructed by Terry Fisher and Co.)

BRENNAN J:   I think we might be advantaged if we heard from Mr Jerrard first, Mr Spigelman. 

MR SPIGELMAN:   If the Court pleases.

BRENNAN J:    Yes, Mr Jerrard.

MR JERRARD:   Your Honours, in our submission, this particular case is really all about the sufficiency of the material put before the magistrate to show that the respondent was a person accused in Austria of having committed offences and that this involves the construction of the word “accused” in sections 6 and sections 19(3) of the Extradition Act.  It involves a consideration of the same term appearing in the treaty but it involves as a major exercise simply the consideration of whether or not there was sufficient evidence that she was a person accused as properly defined. 

May I take your Honours to section 19(3) of the Act.  Your Honours will see that there is a division therein, in (a) and (b), between the provisions where the situation is that a person is accused, that is in (a), and in (b), where the position is that a person has been convicted and sentenced.  If I ask you to look at (b) you will see that provision is made for the production of documents which are required, ones which will evidence, and that is the term used, the conviction and the sentence imposed.  In (iii):

the extent to which a sentence imposed has not been carried out;

In our submission, one would expect this.  The records of differing institutions will no doubt be sought and/or statements of differing officials from those institutions.  We compare that with section 19(3)(a) which deals with the position where:

if the offence is an offence of which a person is accused -

what is required is:

a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence -

et cetera.  Our submission is that that drafting reflects a quite understandable assumption that normally a warrant and the existence of a warrant for arrest will itself evidence the fact that a person has been accused.  We submit that is because it is common in all jurisdictions in this country and all State jurisdictions and in the Commonwealth for warrants which are issued to be issued after an accusation has been placed before, usually, a Justice of the Peace and for the warrant to state on its face that such an accusation has been made, to name the official, to name the position of the official and to say that therefore this warrant is issued for the arrest of this person for this accusation made, which accusation continues.

The result is that the fact that a warrant is in existence in this country is evidence that the person is accused because the issue of the warrant results from the making of an accusation before a relevant official authorised to issue the document.  It is evidence that necessary steps have been taken which have produced this particular result.  This document, which was before this magistrate, did not demonstrate that such an accusation had been made or that the stage had been reached that there had been a decision taken that there was sufficient evidence to warrant a prosecution which would occur.  We submit that the document itself contains within it a description of a curial process in which the respondent is being investigated and is wanted for further investigation and she may or may not be prosecuted.

This document is called a warrant, but it describes, we submit, a process whereby her presence is sought for this investigation and it may be that she will be questioned and it may be that she will be required to answer.  It may be that she will escape eventual prosecution.  We submit that at pages 99 and 104 of the record, it is plain that the Federal Court so understood the contents of the document.

GAUDRON J:   But, Mr Jerrard, is it correct to give the word “accused” in that context precisely the same meaning as it would be given within the Australian legal system?

MR JERRARD:   In our submission, yes, your Honour.

GAUDRON J:   Well, I would have thought otherwise.

MR JERRARD:   Your Honour, may we put our submission this way:  that firstly, the Full Court of the Federal Court, we submit, had an entirely appropriate description of the state of being an accused person at page 102 of the record and ‑ ‑ ‑

GAUDRON J:   That is a statement that borrows from our own jurisprudence.

MR JERRARD:   Yes, your Honour.

GAUDRON J:   Yes.  I am wondering should it not be more broadly stated in this context?

MR JERRARD:   We submit, with respect, your Honour, that there is nothing in the treaty that requires that.  That is, that an examination of the provisions of the treaty would not lead to the conclusion that the expression “accused” in the Australian legislation should be understood as meaning anything but accused in the ordinary sense of the Australian legislation.  May I take your Honour then to the terms of the treaty ‑ ‑ ‑

DEANE J:   But when one reads the warrants, it is apparent that, in relation to some of the offences, it says she is charged.

MR JERRARD:   Your Honour, we acknowledge that the word “charged” is used in the body of the warrant, as did the Full Court of the Federal Court.  But that Federal Court was still left, with respect, as your Honour said, with the impression that overall what was being described was a matter which had not yet proceeded beyond the investigation stage.  Now, I acknowledge, your Honour, that the expression “charged” does appear with reference to at least some of the offences for which extradition was sought.

DEANE J:   So does the expression “she pleads not guilty”.

MR JERRARD:   Yes, and in our submission that is entirely consistent with there being a matter which has not proceeded beyond the investigation stage and that that is a description of a person who has made admissions of relevant facts, or has denied relevant facts, or has made qualified admissions about relevant facts.  Our submission is that, if one goes to those passages of the document, they read like a report by a police officer who may well be recommending a prosecution.  Perhaps I should take your Honours to those to try to make my point good.  At page 4 of the record, at the paragraph beginning at about line 8, it appears:

The defendant admits her guilt regarding the facts and circumstances, however pleads not guilty on grounds that she relied on the advice of an economic advisor’s office.

Now, that, in my submission, is just as consistent with her making a qualified admission of a fact but raising other matters in denial.  We say that the same applies at page 5 at about line 9 in respect of the assertion of forgery:

The defendant admits that the record is false, however maintains that she made no false statement.  The witness, the honorable Dr Peter Masser, was heard in this regard and confirms the charges.

Now, we submit that reads like a report in which an assessment is being made of admissions in a police interview, as it were, or the content of a police interview.  We make a like submission about the contents at page 9 at about line 16:

The defendant admits her guilt regarding the facts and circumstances.....however pleads not guilty to the intention to defraud -

and what follows appears to be an observation by the author that -

since numerous forced realizations were pending at the time of concluding the individual agreements and, since she did not dispose of sufficient financial means, she therefore could not expect to be able to pay for the debts incurred.

That, we submit, is really an argument and it reads like an argument by a person recommending a prosecution.

GAUDRON J:   Well, there is no doubt that she is wanted for prosecution, is there?

MR JERRARD:   Well, they have attempted to extradite her, in our submission.

GAUDRON J:   And why would you not interpret “accused” either in the treaty or in the Act to include at least “wanted for prosecution”?

MR JERRARD:   Your Honour, in our submission, the expression “wanted for prosecution” in article 1 of the treaty is defined in article 11 of the treaty.  Article 11 of the treaty, we submit, follows the same form as section 19 of the Act and we submit contains the same assumptions, namely, that where a person has been convicted of an offence the records of differing institutions will need to be produced as evidence of the fact of conviction but that where a person is accused of an offence the existence of the warrant itself will almost always be evidence of the fact that the person is accused because the warrant will normally, we submit, identify that an accusation has been made before an official entitled to take one into custody or entitled to authorise the taking of one into custody, but that this particular document failed to say that.  It did not say that anybody had, in fact, received an accusation against her or when such an accusation had actually been made.

What it said was that preliminary investigations were ordered and at no part of the document did a description go beyond that and we submit that that is all that the Full Court of the Federal Court has said and correctly said and we submit, with respect, that the introductory provisions in article 1 must be read in full, namely, that each contracting party agrees to extradite to the other in accordance with the provisions of this treaty any persons who are wanted for prosecution and we submit that the expression “wanted for prosecution” should be understood as meaning they are either accused or that they have been convicted but that one will then go to the material which is produced to show which it is, that is, whether you are wanted for prosecution or whether you are convicted and sentenced, and that the expression “accused” which then appears quite appropriately in article 11 following the same format is intended to describe a person against whom an accusation has been made which will result in that person being prosecuted.

BRENNAN J:   Mr Jerrard, if you look at page 2 at the warrant of arrest, you can notice the following features:  first, that Maria Kainhofer is to be taken into custody; then the grounds on which she is to be taken into custody, a “strong suspicion of having attempted to commit” a number of offences, which are set subsequently in the grounds, and then:

Her apprehension is sought due to the risk of escape and the perpetration of further crimes -

so that the Salzburg State Court is seeking to apprehend Ms Kainhofer in order to stop her from escaping and to stop her from perpetrating further crimes when there is a strong suspicion of her having committed the crimes following.  That sounds very much like an accusation, does it not?

MR JERRARD:   It has the full flavour of it, if I might put it that way, your Honour, but the document does not explain at any part of the document before whom this accusation was made or that in fact the accusation has yet been made, with respect.

BRENNAN J:   The accusation is obviously one of which the Salzburg State Court has taken cognisance.

MR JARRARD:   In our submission, the contents of the warrant disclose that what has occurred is that preliminary investigations have been authorised and none of the contents of page 1 of the document are inconsistent with the rest of the contents of the document which, in our submission, describe preliminary investigations having been authorised and which are apparently continuing and which we submit was a decision reached by the Federal Court and which we submit was reached after considering all of the contents of the warrant and after referring to all of the parts of the document to which the applicants have made reference.

BRENNAN J:   But if one looks at the top of page 3, one understands from that that what appears in all the following pages are the grounds of strong suspicion.  Now, one can only say that there may not be a presumption of innocence in the Austrian jurisprudence ‑ I do not know ‑ but it seems familiar, does it not, to those who would have their ears attuned to the grounds of arrest on a suspicion of committing a crime.

MR JERRARD:   That is so, your Honour, we acknowledge that, but what we submit is simply that this document goes further.  It probably goes further than it never needed to, and what it does is it describes a process which actually contradicts that preliminary assumption that one would naturally make.  We concede that an Australian lawyer, looking at the descriptions at pages 2 and 3 of the warrant, might well expect that person was of course a person accused, and a charge had been laid, or an accusation had been made, before an official, but we submit that when one goes further into the document it becomes plain that it does not appear that that has yet happened.  That, we submit, is all that the Full Court of the Federal Court found, and that we ‑ ‑ ‑

DEANE J:   What about page 10, lines 4 and 5?

MR JERRARD:   Yes, that, your Honour, is the strongest one against us.

DEANE J:   It is pretty strong, is it not?

MR JERRARD:   It is, but we still submit that that is equally consistent with the position being, as concluded by the full Federal Court, that investigations are continuing.  I can see that that one reads more as if there had been an accusation to which there was a response made, but we say that the rest of the occasions in this document in which there is reference to her pleading guilty or making admissions read more as if they were reports of an interrogation rather than of a formal accusation before a court, but I readily concede that is the strongest description against me.

BRENNAN J:   Let me take you then to page 13.

MR JERRARD:   Yes, your Honour.

BRENNAN J:   Line 11 to line 17, where it seems that she was released on bail subject to conditions, and she has not kept them, and she has disappeared.

MR JERRARD:   Yes, but, we ‑ ‑ ‑

BRENNAN J:   Your proposition is that this does not assert that this woman has been charged with anything?

MR JERRARD:   That is so, your Honour.  We submit that the Full Court of the Federal Court was correct in their conclusion at page 104 of the record, that when one examines the contents of the warrant it appears that the author regarded the initiation of preliminary investigations as equivalent to the institution of proceedings in which a person was charged, and that further material by way of explanation would be necessary before the conclusion could be reached that the statements referred to should be taken to mean that she was accused in the relevant sense.  Really, I rely on that proposition, which I submit was well put by their Honours.

Your Honours, I do not know I can really add to that.  I submit the Full Court of the Federal Court were correct in their examination of the document, and the conclusion to which they came that surprisingly, perhaps, this document did not disclose that she was accused.  It should have.  It would have been very easy for it to do so, but it, in fact, disclosed, we submit, that a different set of proceedings was still occurring, and that there was a careful analysis by the Federal Court.

Your Honour, I really had little more to add other than that it is our submission that there was simply insufficient material put before the magistrate to inform him of what the actual stage was that had been reached in Austria, and that that stage necessarily meant that she had the status of a person accused.  It was all left too vague, and we submit ultimately it became a question of the surprising lack of evidence in the document, or the fact that the document actually contradicted the assumptions that appeared at the beginning of it.  Your Honours, that is our submission.

BRENNAN J:   Thank you, Mr Jerrard.  Mr Jerrard, the Court is minded to grant special leave in this matter, but in relation to the terms upon which the grant might be made there are two questions that arise, one of which you

may be able to answer.  There has thus far been a grant of legal aid to the respondent to defray her professional representation; does that extend to proceedings in this Court?

MR JERRARD:   I understand that it does, your Honour.  I have seen a document that made me believe that it would continue if special leave were granted.

BRENNAN J:   Yes, very well.

MR JERRARD:   I understand that the applicants can assist you on that.

BRENNAN J:   Thank you.  Then we will hear from Mr Spigelman on another point as well.  Mr Spigelman, first of all, in relation to legal aid.

MR SPIGELMAN:   We have offered assistance, your Honour, for the reasonable legal expenses of the appeal as well as this application.

BRENNAN J:   This application.  The next question is:  if the appeal should succeed, would you seek any disturbance of the orders for costs made in the courts below?

MR SPIGELMAN:   I think my instructions will be that I would, but that is a matter on which I could get further instructions between now and the appeal.  As I understand it, my instructions will be that we do not want our costs but the disturbance would be as to the orders below as to the payment of other costs.

BRENNAN J:   The Court is minded to make it a term of the grant of special leave that you should not seek to disturb the orders for costs in the courts below.  Are you willing to accept that term?

MR SPIGELMAN:   If your Honour pleases.  Yes, I am, your Honour.

BRENNAN J:   Very well.  Then upon that condition, there will be a grant of special leave.

AT 12.17 PM THE MATTER WAS CONCLUDED