Hellenic Republic v Tzatzimakis

Case [2002] FCA 340

FEDERAL COURT OF AUSTRALIA

Hellenic Republic v Tzatzimakis [2002] FCA 340

EXTRADITION – eligibility for surrender – review of order for release made by magistrate – application and meaning of s 10(1) of the Extradition Act 1998 (Cth) – where a person is finally convicted in that person’s absence – whether s 10(1) applies where absence is voluntary

WORDS & PHRASES – “convicted in … absence”

Extradition Act 1998 (Cth) ss 10(1), 12(1), 16(1), 19(1), 19(2)(a), 19(3)(b), 19(9)(a), 19(10), 21(1)(b)
Extradition (Foreign States) Act 1966 (Cth), ss 4(3), 17
Crimes Act 1958 (Vic), s 64
Local Government Act 1990 (NSW)
Extradition Act 1870 (Imp), ss 10, 26
Extradition (Foreign States) Amendment Act 1985 (Cth)
Extradition (Commonwealth Countries) Amendment Bill 1985 (Cth)

R v Darnton [1960] VR 191, considered
Gapes v Commercial Bank of Australia Ltd (1979) 27 ALR 72, considered
Ryan v Heiler (Unreported, Supreme Court of New South Wales, Young J, 26 February 1990), considered
Mack’s Claim (1900) WN (Eng) 114, referred to
McConnell’s Claim (1901) 1 Ch 728, referred to
Willsmore v Willsmore-Tibbenham Ltd  (1965) 109 Sol Jo 699, referred to
Wiest v Director of Public Prosecutions (1988) 23 FCR 472, distinguished
In re Coppin (1866) 2 Ch App 47, considered
R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498, considered
R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46, considered
Royal Government of Greece v Governor of Brixton Prison [1971] AC 250, considered
Atkinson v United States of America Government [1971] AC 197, considered

The New Shorter Oxford English Dictionary (1993)
The Macquarie Dictionary (1995, 2nd Ed)

Attorney-General, ‘Second Reading Speech of the Extradition (Foreign States) Amendment Bill 1985 (Cth)’ (Commonwealth, Parliamentary Debates, House of Representatives, 20 March 1985, 596)
Joint Standing Committee on Treaties, Report 40: Extradition – A Review of Australia’s Law & Policy (August 2001)

HELLENIC REPUBLIC v GEORGIOS TZATZIMAKIS AND FRANK JONES

V 731 OF 2000

NORTH J
27 MARCH 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 731 OF 2000

BETWEEN:

HELLENIC REPUBLIC
APPLICANT

AND:

GEORGIOS TZATZIMAKIS
FIRST RESPONDENT

FRANK JONES
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

27 MARCH 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The order of the second respondent made on 21 February 2002 that Georgios Tzatzimakis be released is confirmed.

2.The application is otherwise dismissed.

3.The applicant is to pay the first respondent’s costs of and incidental to the application.

4.Leave to the parties to apply by 8 April 2002 to vary the orders in par 3 hereof.

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 731 OF 2000

BETWEEN:

HELLENIC REPUBLIC
APPLICANT

AND:

GEORGIOS TZATZIMAKIS
FIRST RESPONDENT

FRANK JONES
SECOND RESPONDENT

JUDGE:

NORTH J

DATE:

27 MARCH 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE APPLICATION

  1. Before the Court is an application for review brought…

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Details
AGLC
Hellenic Republic v Tzatzimakis [2002] FCA 340
Case
[2002] FCA 340
Decision Date

CaseChat Overview and Summary

The Hellenic Republic applied to the court for review of a magistrate's decision that Georgios Tzatzimakis was not eligible for surrender to Greece to serve a sentence imposed in his absence. Mr Tzatzimakis had been convicted of drug-related offences in Greece in his absence and sentenced to 16 years and 4 months in prison. The Hellenic Republic sought Mr Tzatzimakis's surrender to serve his sentence in Greece. The magistrate found that the Hellenic Republic had failed to produce an authenticated arrest warrant and ordered Mr Tzatzimakis's release. The magistrate's decision was based on an interpretation of section 10(1) of the Extradition Act 1988 (Cth) as requiring a warrant for the surrender of a convicted person in absence, but not an accused person. The court considered the legislative history of the Act, finding that the change in the law in 1985 did not reflect a deliberate decision to distinguish between convicted and accused persons. The court held that the magistrate's interpretation of section 10(1) was correct, and that the Hellenic Republic had failed to produce an authenticated warrant as required by section 19(3)(a). The court confirmed the magistrate's decision to release Mr Tzatzimakis and ordered the Hellenic Republic to pay his costs. The court also gave leave for the parties to apply to vary the order as to costs.

Orders

Orders of the court

1. The order of the second respondent made on 21 February 2002 that Georgios Tzatzimakis be released is confirmed.

2. The application is otherwise dismissed.

3. The applicant is to pay the first respondent’s costs of and incidental to the application.

4. Leave to the parties to apply by 8 April 2002 to vary the orders in par 3 hereof.

Background

Background to the litigation

Before the Court is an application for review brought by the Hellenic Republic under s 21(1)(b) of the Extradition Act 1998 (Cth) (the Act) of an order made on 11 September 2000 by the second respondent, who is a magistrate. The magistrate found that the first respondent, Georgios Tzatzimakis, was not eligible for surrender to the Hellenic Republic, and ordered that Mr Tzatzimakis be released.BACKGROUND Mr Tzatzimakis was arrested in Greece on 7 November 1990 and was accused of certain drug-related offences. Upon his arrest, Mr Tzatzimakis was questioned by the Police Department and he provided them with a statement. He claimed that he had been a heroin addict for about 7 years, but had recently been trying to overcome his addiction. He said that in the beginning he bought heroin on a daily basis from an English girl at a local café. When she left, she put him in touch with her supplier, whose name was Salim. Mr Tzatzimakis then worked for Salim in exchange for being given small amounts of heroin. His role was to pick up and deliver heroin to certain specified places. When Mr Tzatzimakis was arrested, he was in possession of 27.5 grams of heroin, packed in six pieces in the shape of an egg. He was charged with offences concerning, possession of heroin, purchase of heroin, assisting in the disposal of heroin and obtaining heroin for personal use. On 24 January 1992, Mr Tzatzimakis was convicted of the above offences by a three member Court of Appeal of Crete. Mr Tzatzimakis had been summonsed to appear at the hearing. He did not attend but was tried in his absence. In relation to this matter, the magistrate found: “The material contained in the ‘supporting papers’ reveals that Tzatzimakis whilst being aware of the trial date voluntarily absented himself from the hearing and it was in those circumstances after the hearing of evidence that he was found guilty and sentenced to a total period of 16 and a half years. This was reduced by the time he had spent in custody awaiting trial to 16 years and four months. The unusual feature then about these proceedings is that not only has Tzatzimakis been convicted, he has been convicted in his absence.” On 20 July 1998, the Hellenic Republic requested that Australia surrender Mr Tzatzimakis so that he could serve his sentence in Greece. On 2 September 1999, the relevant Minister gave notice under s 16(1) of the Act, directed to a magistrate stating that: · the request for surrender had been received;·she was of the opinion that Mr Tzatzimakis was an extraditable person for the purposes of the Act and that he had committed extraditable offences in the Hellenic Republic; and· there were no extraditable objections in relation to the extradition offences. On 4 November 1998, a magistrate issued a warrant under s 12(1) of the Act for the arrest of Mr Tzatzimakis. On 22 November 1999, Mr Tzatzimakis was arrested, and remanded in prison pending a decision of the Attorney-General whether Mr Tzatzimakis would be surrendered to the Hellenic Republic. PROCEEDINGS BEFORE THE MAGISTRATE

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NORTH J
Section 17(6) has been replaced by s 19(1), (2a), and (3). These sections have been set out in par 8 of these reasons. The structure of the section has been altered. The substance of the provisions relating to accused persons is unchanged. In respect of convicted persons, the amendment adds to the requirement of documents evidencing the conviction the same statements as are required in respect of accused persons. This change continued the move towards simplifying the procedure. As a result of the 1988 amendments, the statements required in respect of both accused and convicted persons are the same. The only difference between the requirements applicable to accused and convicted persons is that for accused persons the warrant must be produced, and for convicted persons the conviction must be produced.CONCLUSION It follows from these reasons that I am of the view that the better construction of s 10(1) is that a conviction in absence means a conviction obtained when the accused was not present for whatever reason. Mr Tzatzimakis was not present at his trial or conviction. Therefore, he was to be treated as an accused for the purpose of the hearing before the magistrate. It was necessary for the Hellenic Republic to produce an authenticated warrant under s 19(3)(a). It failed to do so. The magistrate was correct to order that Mr Tzatzimakis be released under s 19(10)(a). In the light of this conclusion it is unnecessary for me to address the remaining arguments relied upon by Mr Tzatzimakis. The result of this case is that Mr Tzatzimakis succeeds on a technical point of construction. That is regrettable because, apart from the narrow legal basis for his success, his case appears to be without merit. It may, however, be said that the legislature brought this result upon itself. There appears no rational basis for the amendment to s 4(3) in 1985. The Hellenic Republic was represented by counsel appearing on behalf of the Director of Public Prosecutions. No doubt the Director of Public Prosecutions has access to any explanation of the purpose and background of the change. However, counsel for the Hellenic Republic did not provide any reason or explanation for the form of the provision. The best explanation available to the Court from independent research is that no real thought was given to the purpose of the amendment. It was agreed by the parties in the course of argument that the question of costs would be reserved until after the reasons for decision were published. In view of the conclusion I have reached I intend to order that the applicant pay the first respondent’s costs of the application on the principle that the costs should follow the event. In order to reflect the agreement of the parties, I will also give liberty to any of the parties to apply within a limited time to vary this order as to costs. Finally, in the course of preparing these reasons, it emerged that there was no formal order of the magistrate in the material before the Court. Apparently, the orders were pronounced orally at the conclusion of the hearing before the magistrate. So that the orders of this Court can operate with respect to a written order of the magistrate, the magistrate made an order in writing on 21 February 2002. This explains why the order of the magistrate which is confirmed by this decision bears a date so distant from the date of the conclusion of the hearing before the magistrate.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

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