Harris, S.P. v The Attorney-General of the Commonwealth of Australia

[1993] FCA 652

STEPHEN PAUL HARRIS v. THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
and THE FEDERAL COMMISSIONER OF POLICE
No. G0017 of 1993
FED No. 652
Number of pages - 16
Extradition
(1993) 117 ALR 487

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
RYAN J

CATCHWORDS

Extradition - extradition to Argentina - Review of decision of Attorney-General to issue a Notice under s.16 Extradition Act 1988 - whether valid extradition request - adequacy of supporting documents and translation into English - existence of extradition objection - whether applicant acquitted or pardoned by competent tribunal in Argentina - Act to be interpreted subject to Extradition Treaty - whether extraditable crime - principle of double criminality - whether mens rea an element of Argentine offence - exceptions to extradition contained in Treaty.

Extradition Act 1988 ss.6, 7(e), 16, 19, 22, 23.

Extradition Amendment Act 1990 s.4.

Extradition (Republic of Argentina) Regulations 1989 No 372.

Judiciary Act 1903 s.39B.

Benson v Northern Ireland Road Transport Board (1942) AC 520 referred to.

He Kaw Teh v The Queen 157 CLR 523.

Kural v The Queen 162 CLR 502.

Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 referred to.

HEARING

SYDNEY

#DATE 20:9:1993

Counsel for the applicant: Mr D Rofe QC and Mr Tudehope

Solicitor for the applicant: Russo and Partners

Counsel for the respondents: Mr P S Hastings QC and Mr N J William s

Solicitors for the respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS:

1. That the application be dismissed.

2. That the applicant pay the costs, including any reserved costs, of the respondents.

3. That liberty be reserved to either party to apply to Mr Justice Ryan on not less than 24 hours notice to the other party.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

RYAN J By application filed on 15 January 1993 and amended by leave granted on 28 April 1993 the applicant, Stephen Paul Harris seeks, pursuant to s.39B of the Judiciary Act 1903, declaratory relief in respect of a Notice ("the Notice") issued by the first respondent, the Commonwealth Attorney-General, pursuant to sub-s. 16(1) of the Extradition Act 1988 ("the Act"). The applicant further seeks orders setting aside the Notice and restraining both the first and second respondents from taking further action upon it.

1. The issuing of the Notice, on 17 November 1992, followed a request from Argentina for the extradition of the applicant. That country seeks the return of the applicant, who is an Australian citizen, in order for him to serve a prison sentence imposed in relation to certain drug offences. The Notice is in these terms:
   

"To a magistrate before whom the person named in this notice is brought.

WHEREAS:

(a) in respect of an extradition request in diplomatic notes no. A/L 3/92 of 2 March 1992 and no. DFAT; 21/92 of 11 May 1992 from the Republic of Argentina, an extradition country, in relation to Stephen Paul Harris, I am of the opinion:

(i) that Stephen Paul Harris is an extraditable person for the purposes of the Extradition Act 1988 in relation to that country; and

(ii) that, if conduct equivalent to the conduct of Stephen Paul Harris constituting the following extradition offence, namely attempted smuggling of cocaine for which surrender of Stephen Paul Harris is sought, had taken place in Australia at the time at which the extradition request was received, the equivalent conduct would have constituted an extradition offence in relation to Australia; and

(b) I am not of the opinion that there is an extradition objection in relation to the following extradition offence for which surrender of Stephen Paul Harris is sought:

. attempted smuggling of cocaine NOW THEREFORE I, Michael Duffy, Attorney-General of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988, hereby state that an extradition request from the Republic of Argentina, an extradition country, in relation to Stephen Paul Harris has been received."

1. Section 16 of the Act provides:
   

"16. (1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) The Attorney-General shall not give the notice:

(a) unless the Attorney-General is of the opinion:

(i) that the person is an extraditable person in relation to the extradition country; and

(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

(3) As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the latter:

(a) a copy of the notice; and

(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b); shall be given to the person."

By Reg. 4 of the Extradition (Republic of Argentina) Regulations No. 372 of 1989 ("the Regulations") the Republic of Argentina is declared to be an extradition country.

1. Before turning to the facts of this matter it is necessary to set out the statutory context in which a s.16 Notice may be issued by the Attorney General. That context is provided not only by the Act but also by the relevant Treaty between Argentina and Australia. Reg. 5 of the Regulations provides that the Act applies in relation to the Republic of Argentina subject to the Treaty on Extradition between Australia and the Republic of Argentina done at Buenos Aires on 6 October 1988 ("the Treaty"). The Treaty is set out in the schedule to the Regulations.

2. The process whereby a person is extradited from Australia to an extradition country commences with an application by an extradition country to a magistrate for the provisional arrest of a person: s.12. The magistrate is required to be satisfied, on the basis of evidence on affidavit in support of the application, that the person is an extraditable person in relation to the applicant country. Once a warrant has been issued the magistrate is required to inform the Attorney-General of that fact. Section 15 provides that a person arrested pursuant to a s.12 warrant is required to be remanded in custody unless a magistrate is satisfied that there are special circumstances justifying bail or the Attorney-General considers that remand should cease.

3. Except where the person consents to surrender the next stage in the process is a proceeding before a magistrate for the determination of eligibility for surrender: s.19. Proceedings under s.19 will be conducted when the person is on remand, the Attorney-General has given a notice under sub-s.16(1), and an application has been made either by the person or the extradition country. Section 19 relevantly provides:
   

"19(1) Where:

(a) a person is on remand under section 15;

(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(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;

(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(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;

(b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:

(i) the conviction;

(ii) the sentence imposed or the intention to impose a sentence; and

(iii) the extent to which a sentence imposed has not been carried out; and

(c) in any case:

(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.

(4) Where, in the proceedings:

(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."

1. Sub-sections (5) to (8) deal with the admissibility of documents in s.19 proceedings and are not presently relevant. Sub-ss (9) and (10) then provide:
   

"(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);

(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and

(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

(a) order that the person be released; and

(b) advise the Attorney-General in writing of the order and of the magistrate's reasons for determining that the person is not eligible for surrender."

1. The jurisdiction of a magistrate to conduct proceedings under s.19 is dependent on, amongst other matters, the issue by the Attorney General, of a s.16 Notice. Some of the matters which a magistrate is required by s.19 to consider are matters on which the Attorney General must form an opinion under s.16. However, the proceedings conducted by the magistrate are not by way of a review of the discretion exercised by the Attorney General. In this context the issue of a s.16 Notice is a condition precedent to the conduct of extradition proceedings but does not constitute a determination of the merits of the extradition request.

2. Once a magistrate has made an order under Sub-s (9) or (10), s.21 provides for a judicial review. So far as is relevant, s.21 provides:
   

21(1) Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a) in the case of an order under subsection 19(9) - the person; or

(b) in the case of an order under subsection 19(10) - the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2) The Court may, by order:

(a) confirm the order of the magistrate; or

(b) quash the order and direct a magistrate to:

(i) in the case of an order under subsection 19(9) - order the release of the person; or

(ii) in the case of an order under subsection 19(10) - order, by warrant in the statutory form, 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 sub-section 22(5). .....

(6) Where the person or the extradition country:

(a) applies under subsection (1) for a review of an order;

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate."

1. The issue of the Notice is not subject to challenge in proceedings under s.21.

2. Once proceedings under s.19 have been determined and any review under s.21 has been completed the matter then returns to the province of the Attorney-General pursuant to s.22. That section relevantly provides:
   

"22(1) In this Section:

"eligible person" means a person who has been committed to prison:

(a) by order of a magistrate made under section 18; or

(b) by order of magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available;

"qualifying extradition offence", in relation to an eligible person, means any extradition offence:

(a) if paragraph (a) of the definition of "eligible person" applies - in relation to which the person consented in accordance with section 18; or

(b) if paragraph (b) of the definition of "eligible person" applies - in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).

(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.

(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; ......; and

(f) the Attorney-General, in his or her discretion, considers that the person shall be surrendered in relation to the offence.

...

(5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person."

1. It is now necessary to outline the facts in this matter. The extradition request upon which the Notice was issued is said by the respondent to comprise two sets of documents. The first is a diplomatic note, No DFAT: 21/92, from the Embassy of the Argentine Republic, Canberra, dated 11 May 1992. It is addressed to the Department of Foreign Affairs and Trade International and General Legal Branch, Canberra. Omitting formal parts the diplomatic note reads:
   

"The Embassy of the Argentine Republic presents its compliments to the Department of Foreign Affairs and Trade - International and General Legal Branch - and has the honour to enclose herewith the formal request for the extradition of Stephen Paul Harris to Argentina, with all supporting documents and two sets of photocopies.

The Embassy is instructed to inform the Department that the sentence of the Argentine Judge is immediately enforceable."

1. Second, there is a bundle of documents bound in a salmon coloured folder. On page 2 of that folder is a diplomatic note, No. A/L 3/93 of 2 March 1992, from the Embassy of the Argentine Republic, Canberra to the Attorney General's Department - Criminal and Security Law Division, International Branch, Canberra. That diplomatic note relevantly recites:
   

"The Embassy of the Argentine Republic presents its compliments to the Attorney-General's Department - Criminal and Security Law Division, International Branch - and has the honour to send the formal request for the extradition of Stephen Paul Harris to Argentina, with its translation into English."

1. At the foot of this diplomatic note it is noted that there are enclosures comprising:
   

"Formal Request (44 pages); translations (70 pages)."

1. The reason for two diplomatic notes both of which refer to the extradition request was explained by the evidence of Ms Karen O'Rourke who had the carriage of the matter in the Attorney-General's Department. The diplomatic note first in time enclosed documents purporting to be the extradition request. Ms O'Rourke believed that those documents were returned to Argentina for the purpose of correcting errors; those errors were not identified before me. Ms O'Rourke could not recall whether the documents were returned from Argentina under the cover of the diplomatic note of 11 May 1992. However, no other diplomatic note was produced which could have enclosed the documents. In my view the inference is open that the documents which purported to be the extradition request were enclosed with the later diplomatic note.

2. Ms O'Rourke gave evidence that diplomatic notes are normally sent from an embassy to the Department of Foreign Affairs and Trade and then passed on to the ultimate addressee, which, for the diplomatic note of 2 March 1992 was the Attorney-General's Department. There was no suggestion in the evidence of Ms. O'Rourke that this practice was not followed in respect of the first diplomatic note.

3. After the diplomatic note of 2 March 1992 there follows a third diplomatic note and 42 double sided pages all of which are in Spanish. Following these Spanish documents there is an English text which purports to be a translation of the preceding Spanish documents.

4. The English translation begins with certain letters rogatory and introduces the reasons for judgment of Judge Reynoso who tried the applicant at first instance in Argentina. These first pages recite that the applicant has been convicted by the Honourable National Court of Appeals of Economic and Criminal Matters on 24 May 1990 upon charges of attempted smuggling of cocaine. Included is a translation of a document signed by Judge Reynoso which is addressed to "Mr Judge in Criminal Matters in the City of Sydney, Australia" and states:
   

"I am hereby sending you a Letters Rogatory with regard to the case #6906 entitled "HARRIS STEPHEN PAUL - on Smuggling" now pending in Clerk's Office #10 temporarily in charge of Clerk Alejandro Esnaola, of this National Court of First Instance in Economic Criminal Matters #5 which I am presiding over. In this connection, and pursuant to the Extradition Treaty entered into the Government of Argentina and the Government of Australia, approved by law 23.729, I am hereby requesting your Honor to order the extradition of the Australian citizen STEPHEN PAUL HARRIS."

1. Then follows a translation of certain extracts from the Argentine Customs Law and Criminal Code pursuant to which the charges against the applicant had been brought. Those translations read:
   

"CUSTOMS LAW 22.415

Article 863: The person who by means of any act or omission, resorting to any kind of trick or device, may hinder or render difficult the proper exercise of the functions of the Customs Service as established by law, for the adequate control over imports or exports, shall be confined in prison for a period of six months to eight years.

Article 866: A prison term of three to twelve years shall be imposed regarding articles 863 and 864, when narcotics, in any of its manufacturing stages, may be involved. Punishment shall be increased in a third part of the maximum term set forth and a half of the minimum term set forth when any of the circumstances provided for under paragraphs a, b, c, d, and e, of article 365 may occur, or when fully or partially manufactured narcotics may be involved that, on account of their quantity may be unmistakably intended to be traded inside or outside the national territory. CRIMINAL CODE

Article 59: Criminal actions shall extinguish: 1) by death of the charged individual; 2) by amnesty; 3) by limitation or 4) when the offended party gives up the claim in a private action. Article 62: Criminal actions shall be limited as follows: 1) after a fifteen years period when life sentence has been imposed; 2) after the maximum prison term set forth for a crime has been served, but in no case the limitation period shall exceed twelve years not be less than two years.

Article 63: A period of limitation shall start at midnight of the day the crime was committed or, if continuous, of the day it ceased to be committed.

Article 67: Limitation periods shall be suspended in those cases when prejudicial matters are required to be solved before a judicial decision is reached. Once these matter are settled, limitation periods may proceed. Limitation periods shall also be suspended when referred to crimes as provided for under chapters 6, 7, 8, 9 9 bis and 10, Title XI, Second Book of this Code, while any of the parties involved may be performing public functions...Limitation periods shall be interrupted when another crime has been committed or when trial is still under progress. Limitation periods shall continue, be suspended or interrupted separately for each of the parties involved. Article 65: Punishments are limited as follows: 1) after twenty years of like solitary confinement; 2) after twenty years of life imprisonment; 3) in the case of temporary confinement of imprisonment, after a period equal to the sentence; 4) in the case of pecuniary penalties, after two years.

Article 66: The limitation of punishments shall start at midnight of the day final judgment has been notified to the offender or from the time there is breach of sentence, if the term was already initiated."

1. Next appears an English translation of the judgment of Judge Manuel Garcia Reynoso which comprises 47 pages. Under Argentine law the criminal process is inquisitorial and in this case extended from October 1987 until judgment was given on 15 November 1989. Judge Reynoso made detailed findings of fact which for present purposes may be shortly summarised.

2. On 6 October 1987 the applicant was arrested at Ezeiza airport Buenos Aires after a quantity of a substance, alleged to be cocaine, was found concealed in a guitar which formed part of the applicant's luggage. The substance was wrapped in foil which was also wrapped in paper. There was some conflict on the evidence as to the exact circumstances in which the substance was found and removed from the guitar. This conflict assumed significance in the trial as a result of discrepancies in the chemical analysis of the material. Analysis of the powder which had adhered to the inside of the guitar was found to be 72% pure cocaine. Powder obtained from the metal foil consisted of 66.1% pure cocaine, powder from the paper surrounding the foil was found to be 71.6%, and the balance of the substance which had allegedly been removed from the guitar and placed in a sealed bag consisted of a mixture of glucose and cocaine and varied in purity of cocaine from 38.8% to 41.8%. Judge Reynoso concluded that the variation in purity cast doubt as to what substance was inside the guitar. Judge Reynoso then concluded:
   

"Harris should be absolved of the crime he has been charged with. Such a conclusion is based upon articles #13, 207, 208, 211, 215. 305, 322, 348, 350, 357, 358, 509 and 512 of the Code of Criminal Procedure, it being not necessary to make any further reference to the remaining arguments by the bold defence attorney, whose performance was accompanied by a plausible task by the prosecution."

1. No English translation of the articles there referred to by Judge Reynoso were included in the extradition request nor were they before the Attorney General at the time of the issuing of the Notice.

2. No claim is made by the parties to the present proceedings that the trial of Judge Reynoso miscarried in any way. It appears clearly from the judgment that both prosecution and defence were afforded the opportunity of calling evidence and making legal submissions. In the result, Judge Reynoso accepted submissions on behalf of the applicant that the state of the expert evidence cast sufficient doubt upon the accused's guilt to warrant an acquittal.

3. The next document in the extradition request is the reasons for judgment of the appeal Court. However, before turning to that document it is necessary to interpolate some further factual material which was before the Attorney General. Once the acquittal had been entered by Judge Reynoso the prosecution, as required by Article 118(6) of the Code of Criminal Procedure, lodged an appeal. Article 118 relevantly provides:
   

"118. The State prosecutors are required to: ...

6. Lodge appeals against any resolution or sentence which is not entirely in accordance with whatsoever the prosecution may have petitioned".

1. On 6 December 1989 before the hearing of the appeal, the applicant entered into bail with a surety of $US1000. On 31 May 1990 after being forewarned by his lawyer, Dr Dougall, that the prosecutors' appeal had been successful, the applicant made arrangements to leave Argentina. On 5 June 1990 the applicant arrived in Santiago, Chile. The applicant alleges that he was assisted in his flight from Argentina by officials of the Australian Embassy in Buenos Aries. There is some dispute as to how far the Australian Embassy staff facilitated Mr Harris' departure from Argentina. I accept that Australian officials in the Embassy issued Mr Harris with a new passport and discussed with him possible routes out of Argentina. It is not necessary in these reasons to determine the exact degree of assistance afforded by the Australian officials to Mr Harris. The resolution of that dispute may have been necessary to determine whether, as initially raised by Mr Rofe QC who appeared with Mr Tudehope for the applicant, that the assistance given by the Embassy gave rise to an estoppel precluding the Attorney-General from issuing the Notice. However, in the course of argument that argument was not pursued.

2. At all events, the applicant returned to Sydney on 10 June 1990. He was arrested by the Australian Federal Police on 18 February 1992 under a provisional arrest warrant issued pursuant to s.12 of the Act. He was detained in custody until released on bail on 12 March 1992.

3. The next document in the extradition request is the reasons for judgment of the Court of Appeal for Economic and Criminal Matters dated 24 May 1990. The Court comprised Judge Oyuela and Judge Roland. Judge Oyuela delivered a judgment with which Judge Roland agreed. Judge Oyuela reviewed the evidence before Judge Reynoso and on the basis of inconsistent statements made by the applicant found that the applicant had lied and therefore could not be believed. Judge Oyuela found that there existed procedural flaws in the case of the prosecution but that the evidence of guilt was so strong that it should not be defeated by any procedural difficulties. Judge Oyuela found that the variations in the purity of cocaine could be explained on the basis of the level of hydration and that the applicant could not avoid a finding of guilt because he was found to have cocaine, of whatever purity, concealed in his luggage. In the result the judgment of Judge Reynoso was revoked. Mr Harris was found guilty and sentenced to five years imprisonment.

4. After the judgment of the Court of Appeal there is a certificate of translation by a Nora Anahi Bertoli. Finally there is a document in Spanish which is not translated into English.

5. It is now appropriate to outline, against that statutory and factual background, the four submissions made on behalf of the applicant which, it was contended, lead to the conclusion that the s.16 notice is invalid. First, it is submitted that there has been no proper request for extradition in accordance with the requirements of the Act and the Treaty. Second, there was said to be an extradition objection in relation to the extradition offence and that it is not open to the Attorney-General to form a contrary opinion. Third, it was argued that it was not open to the Attorney-General to form an opinion that the conduct of the applicant constituting the extradition offence for which surrender of the applicant is sought, had it taken place in Australia, would have constituted an extradition offence in relation to Australia. Finally, the applicant argued that he is not liable to be extradited by reason of the application of Articles 3(1)(e) and 3(2)(a) of the Treaty. Article 3 of the Treaty, so far as is relevant, provides:
   

"1. Extradition shall not be granted in any of the following circumstances:

e) if the person sought cannot be prosecuted or convicted by reason of any limitation, including the lapse of time, prescribed or imposed by the law of either Contracting Party; or

...

2. Extradition may be refused in any of the following circumstances:

a) if the person whose extradition is sought is a national of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if its laws permit and the other State so requests, submit the case to the competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken."

1. I shall now examine separately and in turn each of the applicant's submissions.
   

THE EXTRADITION REQUEST
31. "Extradition Request" is defined in s.5 of the Act and means "a request in writing by an extradition country for the surrender of a person to the country". Articles 5 and 8 of the Treaty establish a procedure for the making of a request for extradition and the authentication of supporting documents. Those articles are in these terms:

" ARTICLE 5

EXTRADITION PROCEDURE AND REQUIRED DOCUMENTS

1. A request for extradition shall be made in writing and shall be communicated through the diplomatic channel.

2. The request for extradition shall be accompanied by: a) a statement of the acts or omissions which are alleged against the person in respect of each offence for which extradition is sought;

b) a statement of each offence for which extradition is sought;

c) the details necessary to establish the identity and nationality of the person sought including, when possible, photographs and fingerprints; d) the text of the laws creating the offence and describing the penalty which may be imposed and, if the request is made by Australia for a common law offence, by a statement of the basis of the creation of the offence and the applicable penalty; and e) if the request is made by Australia, the text of the laws imposing any limitation in respect of proceedings or, if the request is made by Argentina, the text of the laws relating to the extinguishment of the action or the penalty.

3. When the request relates to a person who has not been convicted, it shall be accompanied by a detention order or a warrant of arrest or by the equivalent writ of legal process, issued by the competent authority of the Requesting State.

4. When the request relates to a person who has been convicted, it shall be accompanied by the following documents: a) if the request has been made by Australia, a certificate of conviction and a copy of the sentence, if it has been imposed; or if a sentence has not been imposed a statement of intention to impose a sentence; b) if the request has been made by the Republic of Argentina, a copy of the sentence that has been imposed. When a sentence has been imposed the Requesting State shall provide a certificate stating that the sentence is immediately enforceable and that it has not been fully enforced and the extent to which it has not been carried out.

5. The documents supporting the request for extradition shall comply with Article 8 and shall be accompanied by a translation into the language of the Requested State.

ARTICLE 8

AUTHENTICATION OF SUPPORTING DOCUMENTS

1. Any document that, in accordance with Article 5 of this Treaty, accompanies a request for extradition shall be admitted in evidence in any extradition proceedings in the Requested State if: a) it purports to be signed or certified by a Judge, or other judicial officer in or of the Requesting State; and

b) it purports to be sealed with an official seal of a Minister of State or of a department of the Government of the Requesting State.

2. The signatures and seal on documents presented through the diplomatic channel shall be deemed to be those of the persons and the Department referred to in paragraph 1 of this Article."

1. There are three aspects to the attack made by the applicant upon the extradition request which, so it is said, constitute deficiencies of sufficient magnitude to warrant the conclusion that there has been a failure to comply with the requirements of the Act and of the Treaty.

2. The first deficiency relied upon is the failure to provide the text of the Argentine laws creating the offence, describing the penalty which may be imposed and relating to the extinguishment of the action or penalty together with a translation into English of the text of those laws. I have set out at pages 11 and 12 of these reasons the English translations of various provisions which were provided in purported compliance with Article 5(2) (d) and (e) of the Treaty. Mr Rofe submitted that these extracts for the applicant were insufficient as the judgment of the appellate Court relied upon Articles 40, 41, 45, 143 and 144 of the Code of Criminal Procedure yet a translation of those provisions was not provided.

3. The second ground of attack is upon the quality of the English translations contained in the extradition request. Evidence was given on affidavit by a Ms Isobel Lira who is an interpreter retained by the applicant. Ms Lira identified three categories of error, first, the failure to translate passages of Spanish, second, inaccuracies in the translation and third, phrases occurring in the English translation without a corresponding passage appearing in Spanish. Mr Rofe conceded that only one of the documents which was subsequently translated on behalf of the applicant bore on any matter required by the Treaty. That document was a certificate which, as translated by Ms Lira, reads:
   

"I certify according to the rights granted by law and in addition to the foregoing certification that the judgment entered in the proceedings related to Stephen Paul Harris should be enforced immediately. Office of court clerk, 3 April 1992."

1. The third attack on the request is that it was not communicated through the diplomatic channel as required by Article 5(1) of the Treaty. Mr Rofe submitted that the diplomatic note of 2 March 1992 was addressed to the Attorney General's Department and therefore not communicated through the proper diplomatic channel constituted by the Department of Foreign Affairs and Trade. It was further said that the diplomatic note of 11 May 1992 could not constitute the request because it did not purport to do so.

1. I shall consider the third limb first. It is probable that the first diplomatic note and enclosures were presented to the Department of Foreign Affairs and Trade before their delivery to the Attorney-General's Department and accordingly were communicated through the correct diplomatic channel. In any event, it is probable that the second diplomatic note, addressed to the Department of Foreign Affairs and Trade also enclosed the documents which had been returned to Argentina for correction. The applicant has thus not established, on the evidence, that the purported extradition request was not communicated through the correct diplomatic channel. The third limb of the attack against the extradition request must fail.

2. As to the first two matters the applicant invited the Court to take a global approach when assessing the impact of the deficiencies said to exist in the extradition request. No individual deficiency is put forward as being, on its own, a ground for denying the existence of an extradition request within the meaning of the Act and the Treaty.

3. The respondents seek to meet the attack on the extradition request by contending, first, that a distinction is to be drawn between an extradition request and the accompanying documents and, secondly, that the errors identified by the applicant are immaterial to the task undertaken by the Attorney-General.

4. In support of the first contention Mr Hastings QC who appeared with Mr Williams for the respondents relied upon the wording of Article 5 of the Treaty which provides that the request for extradition shall be accompanied by those documents described in Article 5(2). It was said that Article 9 of the Treaty reinforced the distinction sought to be drawn. Article 9 is in these terms:
   

" ARTICLE 9

ADDITIONAL INFORMATION

1. If the Requested State considers that the documents submitted in support of the extradition request are not sufficient according to the provisions of this Treaty, it may request the presentation of additional information within such time as it specifies.

2. If the person whose extradition is sought is in custody or on bail as a result of the extradition request and the additional information furnished is not sufficient, in accordance with this Treaty, or has not been received within the time specified, the person may be released from custody or discharged. Such release or discharge shall not preclude a further arrest if the request accompanied by the necessary additional information is subsequently received."

1. Reliance was also placed on s.19(4) of the Act which requires an adjournment of the proceedings before a magistrate to allow for the remedy of a minor deficiency in supporting documents. The significance of Article 9 of the Treaty and s.19 of the Act to the respondent's contention was that both are predicated upon an existing extradition request yet allow for the provision of additional supporting documents or for existing documents to be remedied.

2. In my view, Article 5 can be taken to reflect, in part, the nature of the function reposed in the Attorney-General by s.16 of the Act by seeking to ensure that the accompanying documents contain information sufficient for the propoer performance of that function. Such a conclusion is supported by the element of contemporaneity imported by the word "accompanying" in Article 5, the nature of the discretion required to be exercised by the Attorney-General under s.16 and the serious consequences that flow from the issue of a s.16 Notice.

3. The documents which are required by Article 5(2) to accompany an extradition request are directed to matters which are relevant to the determination by either Argentina or Australia of whether or not a particular request for extradition will be granted. Section 16 requires the Attorney-General to consider three of those matters: first, whether the person is an extraditable person, second, whether there is dual criminality in relation to the conduct and third whether there is an extradition objection. It is implicit in s.16 that the requirements imposed by Articles 5 and 8 of the Treaty will have been satisfied before the issue of a s.16 Notice, at least to the extent necessary for the Attorney-General to be able to consider the three matters which I have just identified. That implication is reinforced by the requirement in s.16(3) that "as soon as practicable" after the issue of the s.16 Notice copies of the "supporting documents" as defined in s.19(3) shall be given to the person. If the accompanying documents are not sufficient for the purpose which I have just imputed to the legislature then recourse can be had by the Requested State to Article 9 which allows for the provision of additional information. In this case that procedure was followed and the documents were returned to Argentina for correction.

4. Accordingly, a distinction between the request for extradition and the accompanying documents, assuming that it can validly be drawn, does not avail the respondent in the present context. Nevertheless, the distinction may be relevant to the question of whether there must have been strict compliance with the provisions of Article 5 at the time when the Attorney General comes to exercise his discretion under s.16.

5. In my view at the time when the Attorney comes to exercise the discretion conferred by s.16, there need only have been compliance with Article 5 of the Treaty to the extent necessary to provide a sufficient factual basis for the reasonable exercise of that discretion. Accordingly, for the applicant to succeed in the contention now being discussed he must establish deficiencies in the accompanying documents which would prevent the reasonable formation of one or more of the opinions that s.16(2) makes prerequisite to the giving of the notice.

6. The applicant has identified only the certificate which states that the sentence is immediately enforceable as bearing on the matters required by the Treaty. That matter was dealt with in the diplomatic note of 11 May 1992 and, accordingly, the information which the certificate contained was before the Attorney-General. In my view the applicant has failed to establish, first, that there has not been a valid extradition request and second that the documents accompanying the extradition request are deficient to the extent of precluding the Attorney-General from forming each of the opinions stipulated in s.16(2). The attack on the extradition request therefore fails.

EXTRADITION OBJECTION
46. The second matter raised by the applicant is that there exists an extradition objection in relation to the applicant and that it was not open to the Attorney-General to form a contrary opinion. The relevant meaning of "extradition objection", is set out in s.7 as follows:

"7. For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

(a) .....; or

(e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence."

1. If the Attorney-General forms the opinion that there is an extradition objection he or she is precluded, by s.16(2)(b), from issuing a s.16 Notice.

2. The extradition objection relied on by the applicant is that the applicant has been "acquitted" by a competent tribunal in Argentina in respect of the extradition offence. Mr Rofe submitted that acquittal in s.7(e) means unconditionally discharged by a competent court after a hearing on the merits. That definition, so it was said, comprehended the outcome of the hearing at first instance by Judge Reynoso.

3. Reference was made to a number of Australian authorities including the decision of a Full Court of this Court in Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 establishing that in Australia an accused person has the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits by a court of competent jurisdiction. That authority was cited in support of the proposition that the character of an acquittal could not, in the absence of express statutory intent, be affected by an appeal.

4. Mr Hastings submitted that the key to understanding s.7(e) lies in the word "competent". Competence, he said, was a comparative term which depended on the degree of finality accorded to the judgment. If, as in the present case, the decision was susceptible to appeal then the competence to acquit is qualified by, or conditional upon, the outcome of any such appeal. It was further submitted that whether or not there had been an acquittal was a question of fact and was a matter for the opinion of the Attorney-General which should not be disturbed unless it be shown to be manifestly unreasonable.

5. On one view, the Act, because it visits penal consequences by way of extradition affecting the liberty of persons subject to it, including, as in this case, subjects of the Requested State, should be strictly construed so that those consequences are confined to as narrow a range of persons as the language of the statute reasonably permits. On the other hand, the statutory provisions have to be construed as part of an Act which is manifestly concerned to regulate arrangements for extradition between reciprocating countries. Those countries, in the nature of things, may accord markedly different consequences to a discharge or acquittal at first instance or some other initial, or early, stage in the administration of criminal justice. As I have just noted, even in other common law jurisdictions, there may be an appeal against an acquittal if there is very clear statutory language to establish it; (see eg Benson v Northern Ireland Road Transport Board (1942) AC 520 at 528). In my view, Art. 118(6) of the Argentine Code of Procedure provides a distinct statutory authority for an appeal against the "acquittal" which the applicant achieved by virtue of the verdict of Judge Reynoso. It was therefore open to the Attorney-General to conclude that the applicant had not been acquitted within the meaning of s.7(e) of the Act.

6. Whether or not there is an extradition objection arises for consideration under both s.16 and s.19. If the Attorney-General issues a s.16 Notice and proceedings under s.19 follow the question of whether there is an extradition objection has to be determined again, independently, by the magistrate. The only relevant effect of the s.16 Notice is that, pursuant to s.19(2)(d), the applicant carries the onus in satisfying the magistrate that there are substantial grounds for believing that there is an extradition objection.

7. The wording of s.16, the nature of the proceedings before a magistrate, including the facility to adjourn proceedings and adduce further material, and the opportunity for review under s.21 make it clear that the formation of an opinion by the Attorney-General is a preliminary matter which, but for the reversal of onus just referred to, does not impact on the determination of later proceedings. Furthermore, s.22(3) again requires the Attorney-General to be satisfied that there is no extradition objection in relation to the offence. That consideration would take place with the benefit of any further material adduced before the magistrate and would not be satisfied by a mere restatement of an opinion earlier formed.

8. In that context it is not for this Court to substitute its opinion for that of the Attorney-General.

9. However, the formation of an opinion by the Attorney-General requires an application of the statutory definition of "extradition objection". If the opinion of the Attorney-General is founded upon a misconstruction of s.7(e) then, notwithstanding that the application of that definition to particular facts may be a matter for the opinion of the Attorney General, this Court must intervene to correct that misconstruction. Accordingly, it is necessary to determine whether the Attorney-General has properly construed the definition provided by s.7(e).

10. The two limbs of that sub-section are acquittal or pardon, and undergoing of the punishment provided by law. Both limbs in mutually exclusive ways, contemplate the result that the person is no longer subject to prosecution or punishment in relation to the extradition offence. Seen in that light, the two limbs of sub-s.7(e) reflect the nature of the obligation to extradite contained in Article 1 of the Treaty. The two classes of persons whom Argentina and Australia have agreed to subject to extradition are first, those wanted for prosecution and second, those who are wanted for the imposition or enforcement of a punishment. The obligation to extradite therefore requires that the subject be amenable to legal process and its enforcement. In my view, s.7(e) creates an extradition objection in circumstances where there is no obligation to extradite because the person is no longer amenable to legal process or punishment.

11. The facts of this case do not fit easily into either limb of s.7(e). However, the applicant clearly falls into the category of extraditable persons who are subject to an obligation to extradite them. Further, for the reasons appearing below, the applicant is not excepted from liability to extradition by Article 3 of the Treaty.

12. The applicant's contentions involve the proposition that "acquitted" in s.7(e) should be regarded as importing the concept of acquittal as it is understood and applied in Australian domestic law. However, in my view, the construction of s.7(e) which best gives effect to the intention of the Act and of the Treaty is one which interprets s.7(e) as requiring an assessment of whether there has been a final determination of the merits of the case. I reach that conclusion, not on the basis of construing the word "competent" as meaning not amenable to appeal but for the reason that s.7(e) is, in its context, predicated on circumstances in which the person is no longer subject to prosecution or punishment in relation to the extradition offence.

13. One argument militating against that construction is that it is really directed to whether or not the person is an extraditable person rather than whether or not there is an extradition objection. "Extraditable person" is defined by s.6 of the Act in these terms:
    

"6. Where:

(a) either:

(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or

(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:

(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or

(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;

(b) the offence or any of the offences is an extradition offence in relation to the country; and

(c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country."

1. Comparing s.6(a)(ii) with s.7(e) it will be apparent that there is, on any view, a marked correspondence in the matters which arise for consideration under both paragraphs. As well, if one accepted that s.7(e) is directed to a final determination it is difficult to see how a person falling within s.7(e) could still be an extraditable person. As the determination of whether the person is an extraditable person is a matter which would normally be undertaken before the issue arises of whether there is an extradition objection, it is not clear that s.7(e) would have work to do. However, the same problem may arise on any construction of s.7(e). The relationship between s.6(a) and s.7(e) may be illustrated by the present facts. Mr Rofe contends that "acquitted" in s.7(e) means "acquitted at first instance" yet he makes no attack on the conclusion that the applicant is an extraditable person. Implicit in that is the concession that the applicant has been "convicted" for the purposes of s.6(a)(ii).

2. That illustration suggests to me that s.7(e) raises the fundamental question of whether or not there is an obligation to extradite. It therefore requires an assessment of whether or not there has been a final determination of the merits of the case. I reach that conclusion notwithstanding that it does not entirely reconcile the overlap between s.6 and s.7(e).

3. That conclusion, in my view, best gives effect to the intention embodied in s.11(1) of the Act as amended by s.4 of the Extradition Amendment Act (No 76 of 1990) and sub-ss. 11(1A), 11(1B) and 11(1C) of the Act as inserted by the same Amendment Act that the Act is to apply in relation to Argentina in order to give effect to the Treaty. Accordingly, in my view, no error on the part of the Attorney-General has been shown in relation to whether or not there is an extradition objection.

DUAL CRIMINALITY
63. Section 16(2)(a)(ii) relevantly requires the Attorney-General to be of the opinion that the conduct constituting the extradition offence in relation to Argentina will also constitute an extradition offence in relation to Australia. "Extradition offence" is defined in s.5, which provides:

(a) in relation to a country other than Australia - an offence against a law of the country:

(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

(ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or

(b) in relation to Australia or a part of Australia - an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months."

1. It is common ground that the acts of which gave rise to the applicant's conviction in Argentina would have constituted an offence against s.233B of the Customs Act 1901 (Cth) and that such an offence is an extradition offence in relation to Australia.

2. The narrow issue raised for consideration in the context of s.16(2)(a)(ii) is whether the conduct disclosed in the material before the Attorney-General enabled the Attorney to form the opinion that the conduct of the applicant involved the mental element required by s.233B of the Customs Act. The nature of the mental element required in order to establish a breach of s.233B of the Customs Act was considered in the judgment of the High Court in He Kaw Teh v The Queen 157 CLR 523. That judgment is authority for the proposition that mens rea is an element of an offence against s.233B. The manner in which that element may be proved was explained in Kural v The Queen 162 CLR 502, an application for special leave to appeal. In the course of refusing special leave Mason CJ, Deane and Dawson JJ observed:
   

"As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact."

1. Mr Rofe submitted that the facts contained in the judgments of Judge Reynoso and the appellate court in Argentina are not sufficient to found an inference that the applicant was aware of the likelihood that the guitar in the possession of the applicant contained cocaine.

2. As explained by the High Court in Kural v The Queen, the judgment in Hew Kaw Teh does not require proof of an actual knowledge or awareness on the part of an accused. It is necessary that there be sufficient evidence of circumstances, such as an awareness of the likelihood of the presence of a narcotic drug to sustain an inference of intention. Mr Hastings points to both the findings of fact and the conclusions of law, made by the argentine court to sustain the necessary inference. In relation to the conclusion of law Mr Hastings submitted that intent is an element of Article 863 of the Argentine Customs Law and that the ultimate conviction is sufficient to ground an inference that the applicant had the necessary intent required by s.233B. I do not propose to restate Article 863 nor set out those passages from the Argentine judgments on which the respondents rely. In my view, the conclusion of the appellate court clearly proceeded upon a finding that the applicant believed that he was smuggling narcotic drugs in the guitar. Indeed, the Court contrasted the situation of the applicant with that of a hypothetical accused involved in an innocent conveyance of narcotics. In those circumstances, it was clearly open to the Attorney-General to form the opinion that the acts and admissions of the accused would constitute an extradition offence including the requisite mental element in relation to Australia.

ARTICLE 3 OF THE TREATY
68. It is said by the applicant that Article 3(1)(e) operates so as to prevent the applicant from being extradited in relation to the extradition offence. Three matters are relied upon to support the proposition that the applicant could not be prosecuted in Australia for the extradition offence. First, the applicant pointed to the absence of any legislation in Australia which creates the same offence as that with which he was charged in Argentina. Secondly, on the common law protection against double jeopardy, and thirdly on the doctrine of autrefois acquit. As the argument was developed by Mr Rofe, it emerged that the first two matters are really variations of the third point that the existence of an acquittal prevents the prosecution of an accused person for an offence based on the same facts. In my view, this submission is misconceived.

1. The obligation to extradite created by the Treaty concerns two categories of persons, first, those persons wanted for prosecution in the Requesting State, and second, those who have already been prosecuted but are subject to an undischarged sentence. Article 3(1)(e) is clearly related to the former category and prevents extradition on the two bases that a limitation on prosecution in the Requesting State makes extradition futile and a similar limitation in the Requested State would preclude the existence of the requisite dual criminality.

2. Article 3(1)(e) clearly can have no application to the present case where the applicant has been convicted in Argentina in accordance with law and is yet to complete a sentence which is conceded to have been validly imposed.

3. Reliance was also placed by the applicant upon Article 3(2)(a) which gives to the Requested State a discretion whether or not to prosecute its own nationals in their own country. That matter was considered by the Attorney-General who formed the opinion that it was not appropriate to prosecute the applicant in Australia in relation to the conduct constituting the extradition offence. The applicant has not discharged the onus that he bears establishing that the exercise of that discretion miscarried in some way.

4. For these reasons the applicant has failed to establish his case on each of the grounds raised. The application must be refused with costs.