FEDERAL COURT OF AUSTRALIA
Hellenic Republic v Tzatzimakis [2003] FCAFC 4
EXTRADITION – eligibility for surrender – requirement to produce supporting documents - meaning of s 10(1) of the Extradition Act 1998 (Cth) – whether on the facts of the case respondent convicted in his absence
WORDS & PHRASES – “convicted in the person’s absence”
Extradition Act 1998 (Cth) ss 10(1), s 11, 19(1), 19(2), 19(3), 55
Extradition (Foreign States) Act 1966 (Cth) s 4(3)
Extradition (Foreign States) Amendment Act 1985 (Cth)
Extradition (Commonwealth Countries) Act1966 (Cth)
Extradition (Commonwealth Countries) Regulations 1998 (Cth)Wiest v Director of Public Prosecutions (1988) 23 FCR 472, considered
R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498, considered
In re Coppin (1866) 2 Ch App 47, considered
R v Jones [2002] 2 All ER 113, consideredHELLENIC REPUBLIC V GEORGIOS TZATZIMAKIS AND FRANK JONES
V 209 OF 2002BLACK CJ, HILL & FINKELSTEIN JJ
31 JANUARY 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 209 OF 2002
BETWEEN:
HELLENIC REPUBLIC
APPELLANTAND:
GEORGIOS TZATZIMAKIS
FIRST RESPONDENTFRANK JONES, M
SECOND RESPONDENTJUDGES:
BLACK CJ, HILL & FINKELSTEIN JJ
DATE OF ORDER:
31 JANUARY 2003
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
2.The order of Ryan J of 18 April 2002 ordering the arrest of the first respondent be discharged.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 209 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
HELLENIC REPUBLIC
APPELLANTAND:
GEORGIOS TZATZIMAKIS
FIRST RESPONDENTFRANK JONES, M
SECOND RESPONDENT
JUDGES:
BLACK CJ, HILL & FINKELSTEIN JJ
DATE:
31 JANUARY 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BLACK CJ:
This is an appeal by the Hellenic Republic from a judgment of a judge of this Court dismissing with costs an application by the Hellenic Republic for a review of the determination of Frank Jones, a Magistrate of the State of Victoria, that Georgios Tzatzimakis, the first respondent to this appeal, is not eligible for surrender to it in relation to various extradition offences.
The appeal turns upon the construction of the expression “convicted in the person’s absence” in s 10(1) of the Extradition Act 1988 (Cth) (“the Act”), which provides:
“Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.”
The facts, the historical background to s 10(1), and the way in which the principle issue in the appeal arises, are set out in the reasons for judgment of Finkelstein J, which I have had the advantage of reading in draft. Finkelstein J sets out at…
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- Hellenic Republic v Tzatzimakis [2003] FCAFC 4
- Case
- [2003] FCAFC 4
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CaseChat Overview and Summary
In considering the matter, the Court examined the relevant legislation, specifically section 10(1) of the Extradition Act, and referenced the earlier case of Wiest v Director of Public Prosecutions. In Wiest, the Full Court had considered the interpretation of a similar provision, although the discussion was noted to be merely obiter. The Court in the present case found that the reasoning in Wiest, particularly the view of Gummow J, was persuasive. The Court concluded that section 10(1) of the Extradition Act placed those convicted in absentia on the same footing as those who were accused but not convicted, thereby confirming that such individuals could be extradited as if they had been present and convicted during the trial.
The Court's reasoning was grounded in the legislative text and the interpretation of similar provisions in prior cases. The Court dismissed the appeal and discharged the order for the respondent's arrest, finding that the respondent, having been convicted in absentia, was indeed subject to extradition under the relevant provisions of the Extradition Act. The Court's decision was thus in line with the statutory interpretation that treated those convicted in absentia as having been convicted in their presence for the purposes of extradition.
Orders
Orders of the court
1. The appeal be dismissed with costs.
2. The order of Ryan J of 18 April 2002 ordering the arrest of the first respondent be discharged.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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