Hellenic Republic v Tzatzimakis

Case [2003] FCAFC 4

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, considered

HELLENIC REPUBLIC V GEORGIOS TZATZIMAKIS AND FRANK JONES
V 209 OF 2002

BLACK CJ, HILL & FINKELSTEIN JJ
31 JANUARY 2003
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 209 OF 2002

BETWEEN:

HELLENIC REPUBLIC
APPELLANT

AND:

GEORGIOS TZATZIMAKIS
FIRST RESPONDENT

FRANK JONES, M
SECOND RESPONDENT

JUDGES:

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
APPELLANT

AND:

GEORGIOS TZATZIMAKIS
FIRST RESPONDENT

FRANK JONES, M
SECOND RESPONDENT

JUDGES:

BLACK CJ, HILL & FINKELSTEIN JJ

DATE:

31 JANUARY 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ:

  1. 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. 

  2. 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.”

  3. 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
Decision Date

CaseChat Overview and Summary

The case of Hellenic Republic v Tzatzimakis involves a dispute regarding the extradition of the respondent from Australia to Greece. The respondent, who had been convicted in absentia by a Greek court, argued that his conviction should not stand as he had not been physically present during the trial. The matter was heard in the Federal Court of Australia, with the appeal being dismissed by the Court. The central legal issue before the Court was whether a person who deliberately absents themselves from a trial, despite having notice, could be properly described as having been "convicted in the person’s absence of an offence". The Court found that such a person could indeed be considered convicted in their absence, irrespective of their physical presence during the trial.

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

So much is clear. But in my opinion, the history helps little in deciding the present issue before the Court, which is whether a person who deliberately absents himself or herself from a trial of which he or she has notice is properly to be described as a person who “has been convicted in the person’s absence of an offence”.The decision in Wiest v Director of Public Prosecutions (1988) 23 FCR 472. In Wiest the members of the full Court differed on the interpretation of s 10(1), although it is clear that the discussion on that subject was merely dicta. Nevertheless, it is dicta deserving of considerable respect, emanating as it did from senior members of the Court. The majority of the Court comprised Sheppard and Gummow JJ. Sheppard J agreed generally with the reasons of Gummow J, although he commented on some matters (not presently relevant) in a separate judgment. Wiest was a case of an appellant who had been represented by counsel throughout the trial but in the course of it had obtained a visa from the Australian authorities and left the Federal Republic of Germany where the trial was held. There was, in fact, an appeal brought on his part in Germany, although by that time Mr Wiest was in Australia. The appeal failed. The documents presented to the Magistrate referred to the appellant as being a person charged with a stipulated crime and the case was conducted before the Magistrate upon the basis that the supporting documents should be those appropriate to the case of a person accused of a crime, rather than those appropriate to the case of a person convicted of a crime. In Germany, it seems to have been the case that the conviction was final, in the sense that it could not have been reopened. The argument which the Court addressed centred upon the consequence of the deeming in the then s 4(3) of the Extradition (Foreign States) Act 1966 (Cth). It seems to have been argued on behalf of Mr Wiest that every document from and including the initial requisition for extradition had to specify whether the person the subject of the request for extradition be extradited either for trial, if a person charged or for the purpose of serving a sentence, if a person convicted. It was thus being argued that the deeming in the then equivalent section to s 10(1), being for all purposes of the Act had the result that for all such purposes an applicant convicted in his absence had to be treated as only having been charged and not convicted. It was said to be a consequence of the argument that a person who had been convicted in his absence could not be extradited at all, although for my part I have great difficulty in seeing why this was the case, despite the acceptance of the argument by Burchett J. The argument was rejected by the majority of the Court. Naturally it was a part of the argument that the applicant was, indeed, a person who had been convicted in his absence, despite the fact that he had been represented at the trial. Gummow J noted at 510, in the course of his Honour’s reasons that s 4(3) of the then Extradition (Foreign States) Act 1966 (Cth), the equivalent of s 10(1) of the Extradition Act, achieved “the placing of those to whom it applied on the same footing as those fugitives who are accused but not convicted of an offence.” The question, his Honour said, was who were the persons to whom s 4(3) applied. That question turned, as his Honour said at 510, upon the meaning to be given to the expression “a person convicted in the absence of the person”.

Ratio Decidendi

Legal Principle Established

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