Kainhofer v Director of Public Prosecutions
[1994] FCA 649
•14 SEPTEMBER 1994
MARIA KAINHOFER v DIRECTOR OF PUBLIC PROSECUTIONS AND REPUBLIC OF AUSTRIA
No. QG 222 of 1993
FED No. 649/94
Number of pages - 22
Extradition
(1994) 124 ALR 665
(1994) 75 A Crim R 152
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NEAVES, OLNEY AND COOPER JJ
CATCHWORDS
Extradition - Foreign country - Eligibility for surrender - Determination by magistrate that person eligible for surrender on some, but not all, offences for which surrender sought - Order that person be committed to prison to await surrender or release - Application by person to Supreme Court of Queensland to review determination and order of magistrate - Order of magistrate confirmed by Supreme Court - Supreme Court of opinion that person eligible for surrender on additional charges but declined to make order to that effect - Appeal - Application by person for adjournment to enable enquiries to be made whether an arguable case could be presented on issue not raised before magistrate or Supreme Court refused - Whether provision in relevant treaty that documents in foreign language be accompanied by an English translation constituted a limitation, condition, exception or qualification to which the application of the Extradition Act 1988 (Cth) to the Republic of Austria subject - Whether magistrate could be satisfied that supporting documents included a duly authenticated warrant disclosing that person "accused" of relevant offences - Circumstances in which a person is to be regarded as "accused" of a criminal offence considered - Extent of review by Supreme Court instituted by person determined by magistrate to be eligible for surrender on some, but not all, offences for which surrender sought considered - Form of warrant for committal to prison considered.
Extradition Act 1988 (Cth), ss.11, 19, 21
Extradition (Republic of Austria) Regulations, reg.4 and the Treaty, Art.19
Extradition Regulations, Form 12 in the Schedule
HEARING
BRISBANE, 5-6 May 1994
#DATE 14:9:1994
Counsel for the appellant: Mr J.A. Jerrard, QC
Solicitors for the appellant: Witheriff Nyst
Counsel for the respondents: Mr N.J. Williams
Solicitor for the respondents: Director of Public
Prosecutions (Cth)
ORDER
1. The appeal be allowed.
2. The order of the Supreme Court of Queensland made on 10 December 1993 be set aside and in lieu thereof it is ordered -
(i) that the order of the magistrate made on 1 November 1993 be quashed;
(ii) that the magistrate be directed to order the release of the appellant; and
(iii) that the Director of Public Prosecutions and the Republic of Austria pay the costs of Maria Kainhofer of the proceeding in the Supreme Court of Queensland.
3. The respondents pay the appellant's costs of and incidental to the appeal and purported cross-appeal to this Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NEAVES, OLNEY AND COOPER JJ Maria Kainhofer ("the appellant") has appealed to this Court pursuant to subs.21(3) of the Extradition Act 1988 (Cth) ("the Act") from the order of the Supreme Court of Queensland (White J) made on 10 December 1993 upon the application of the appellant pursuant to subs.21(1) for a review of the order made under subs.19(9) of the Act on 1 November 1993 by Francis John Caldwell, a magistrate within the definition of that expression in s.5 of the Act. The order of the magistrate was made in proceedings pursuant to subs.19(1) of the Act to determine whether the appellant was eligible for surrender in relation to certain extradition offences for which the surrender of the appellant was sought by the Republic of Austria. The magistrate found that the appellant was eligible for surrender in respect of some, but not all, of the offences for which her surrender was sought. The Supreme Court confirmed the order of the magistrate. The respondents to the appeal are the Director of Public Prosecutions (Cth) and the Republic of Austria ("the respondents").
The appellant's notice of appeal was filed on 22 December 1993 and served on the respondents on the following day. Thus, the appeal was instituted within the period of 15 days after the day on which the order of the Supreme Court was made as required by subs.21(4) of the Act. That subsection provides that, where an order has been made by the Supreme Court of a State upon an application for the review of an order made by a magistrate under s.19, the person whose surrender is sought or the extradition country is not entitled to appeal to the Full Court of this Court more than 15 days after the day on which the order of the Supreme Court is made. On 4 February 1994, a notice of cross-appeal was filed in this Court on behalf of the respondents seeking to cross-appeal from that part of the judgment of the Supreme Court whereby that Court failed to specify certain offences as being extradition offences in relation to which the appellant was eligible for surrender. An objection to the competency of the cross-appeal was filed on behalf of the appellant. It is convenient to defer consideration of the cross-appeal and the objection to competency until the issues arising on the appeal have been considered.
The Act relates to the extradition of persons to and from Australia. Its principal objects are set out in s.3. They are -
"(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
(b) to facilitate the making of requests for extradition by Australia to other countries; and
(c) to enable Australia to carry out its obligations under extradition treaties."
An extradition treaty between Australia and the Republic of Austria has been in force since 6 February 1975. That Treaty was amended by a Protocol that came into force on 1 February 1987. A copy of the English text of the Treaty, which was done at Canberra on 29 March 1973, is set out in Schedule 1 to the Extradition (Republic of Austria) Regulations (Statutory Rules 1988 No.287). A copy of the English text of the Protocol, which was done at Vienna on 30 August 1985, is set out in Schedule 2 to those regulations. Some reference to the text of the Treaty as amended by the Protocol will be made later in these reasons.
On 20 January 1993, a request in writing pursuant to the Treaty was made by the Republic of Austria through its Embassy in Canberra to the Department of Foreign Affairs and Trade of the Commonwealth for the arrest and subsequent extradition of the appellant "for prosecution in Austria in respect of a number of misappropriation and malversion offences under the Austrian Penal Code". The document of request stated -
"Supporting documentation certified by the Australian Embassy in Vienna with a certified translation from German is enclosed."
What is to occur upon the receipt of such a request is provided for by s.16 of the Act. That section provides:
"(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 later:
(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."
The expression "extradition request" is defined in s.5 to mean a request in writing by an extradition country for the surrender of a person to the country. The expressions "extradition country" and "statutory form" are also defined in s.5. The expression "extradition country" includes any country (other than New Zealand) that is declared by the regulations to be an extradition country. The Republic of Austria was so declared by reg.3 of the Extradition (Republic of Austria) Regulations. The expression "statutory form", in relation to a warrant, notice, indorsement, application or certificate, means the form of the warrant, notice, indorsement, application or certificate, as the case may be, set out in the regulations. Section 6 gives meaning to the expression "extraditable person". It provides:
"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."
So far as relevant for present purposes, the expression "extradition offence" means, in relation to a country other than Australia, an offence against a law of the country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months. The meaning of the expression "extradition objection" appears from s.7 but it is unnecessary for present purposes to refer further to that section.
In a notice dated 11 February 1993 under subs.16(1) of the Act, the then Attorney-General of the Commonwealth stated that an extradition request from the Republic of Austria, an extradition country, in relation to Maria Kainhofer had been received. The notice recited that the Attorney-General was, in respect of the extradition request, of opinion -
"(i) that Maria Kainhofer is an extraditable person for the purposes of the Extradition Act 1988 in relation to that country; and
(ii) that, if the conduct of Maria Kainhofer constituting the following extradition offences, namely aggravated fraud (eight counts), misappropriation of a motor car (one count), perjury (one count), attempting to commit fraudulent bankruptcy (one count) and credit card fraud (one count) for which surrender of Maria Kainhofer is sought, had taken place in Australia at the time at which the extradition request was received, the conduct would have constituted extradition offences in relation to Australia."
The notice further recited that the Attorney-General was not of opinion that there was an extradition objection in relation to the extradition offences for which the surrender of Maria Kainhofer was sought.
Section 12 of the Act provides in subss.(1) and (2) as follows:
"(1) Where:
(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and
(b) the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate shall issue a warrant, in the statutory form, for the arrest of the person.
(2) The magistrate shall forthwith send to the Attorney-General a report stating that the magistrate has issued the warrant, together with a copy of the affidavit."
A person who is arrested under a provisional warrant, that is to say under a warrant issued under s.12, is to be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested (subs.15(1)) and is to be remanded by the magistrate in custody, or, in certain circumstances, on bail, for such period or periods as may be necessary for proceedings under s.18 or 19, or both, to be conducted (subs.15(2)). Section 18 is not relevant for present purposes.
On 17 March 1993, Graham Kenneth Schneider, a magistrate within the definition of that expression in s.5 of the Act, issued, pursuant to subs.12(1), a warrant for the arrest of the appellant. The warrant recited that an application had been made to the magistrate, in the statutory form, on behalf of the Republic of Austria for the issue of the warrant and that the magistrate was satisfied, on the basis of information put before him by affidavit, that the appellant was an extraditable person for the purposes of the Act in relation to the Republic of Austria.
The appellant was arrested pursuant to the warrant on 18 March 1993 and later that day was, pursuant to subs.15(2) of the Act, remanded on bail by a magistrate.
An application was subsequently made pursuant to par.19(1)(c) of the Act for proceedings to be conducted to determine whether the appellant was eligible for surrender in relation to the extradition offences for which surrender of the appellant was sought by the Republic of Austria. Section 19 provides:
"(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.
(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
(6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).
(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.
(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."
Section 21 provides for the review of an order made by a magistrate under subs.19(9) or 19(10). It provides:
"(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 subsection 22(5).
(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.
(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.
(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.
(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;
(e) if, because of the order referred to in paragraph (a),
(b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person;
(f) if:
(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or
(ii) the person has been arrested under an order made under paragraph (e); the court to which the application or appeal is made may:
(iii) order that the person be kept in such custody as the court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;
until the review has been conducted or the appeal has been heard;
(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences."
Section 22 provides, inter alia, that the Attorney-General, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, is to determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. The expression "eligible person" includes a person who has been committed to prison by order of a magistrate made under subs.19(9) or required to be made under subpar.21(2)(b)(ii) (including by virtue of an appeal referred to in s.21), being an order in relation to which no proceedings under s.21 are being conducted or available. The expression "qualifying extradition offence", in relation to such an eligible person, means any extradition offence in relation to which the magistrate or the court that conducted final proceedings under s.21, as the case requires, determined that the person was eligible for surrender within the meaning of subs.19(2).
Reference should also be made to s.11 of the Act. That section provides, in subs.(1):
"(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country."
Subsection 11(1C) provides that, for the purposes of subs.(1), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that the Act applies to the country concerned subject to that treaty.
Regulation 4 of the Extradition (Republic of Austria) Regulations provides that the Act applies in relation to the Republic of Austria subject to the Treaty and the Protocol to which reference has been made.
The Treaty as amended by the Protocol provides (Art.1) that each Contracting Party agrees to extradite to the other, in accordance with the provisions of the Treaty, any persons who are wanted for prosecution or the imposition or enforcement of a sentence in the requesting State for one or more of the offences referred to in Article 3. That Article provides in par.(1) that, for the purposes of the Treaty, offences for which extradition may be granted are offences however described which are punishable under the laws of both Contracting Parties by imprisonment or other deprivation of liberty for a maximum period of at least one year or by a more severe penalty. Article 3(3) provides that, for the purposes of Article 3 -
"(a) it shall not matter whether the laws of the Contracting Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same or similar terminology;
(b) in determining whether an offence is an offence for which extradition may be granted, the totality of the acts or omissions alleged against the person whose surrender is sought, shall be taken into account and it shall not matter whether, under the laws of both Contracting Parties, the offence comprises the same elements."
Article 3(5) provides:
"(5) Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that -
(a) it was an offence in the requesting State at the time of the acts or omissions constituting the offence; and
(b) the acts or omissions alleged would, if they had taken place in the territory of the requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State."
Articles 11 and 12 provide:
"ARTICLE 11
(1) A request for extradition shall be made in writing. All documents furnished in support of a request for extradition shall be duly authenticated.
(2) The request for extradition shall be accompanied -
(a) if the person is accused or has been convicted in his absence of an offence - by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence;
(b) if the person has been convicted of an offence - by such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence is immediately enforceable, and the extent to which the sentence has not been carried out;
(c) if the person has been convicted of an offence but no sentence has been imposed - by such documents as provide evidence of the conviction and a statement affirming that it is intended to impose a sentence;
(d) in all cases by documents setting out the relevant provision of the statute, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence; and
(e) in all cases by as accurate a description as possible of the person sought together with any other information which will help to establish the person's identity and nationality.
(3) Extradition may be granted of a person sought pursuant to the provisions of this Treaty, notwithstanding that the requirements of Paragraphs 1 and 2 of this Article have not been complied with provided that the person sought consents to an order for his extradition being made.
ARTICLE 12
(1) A document that is furnished in support of a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the requested State.
(2) A document is duly authenticated for the purposes of this Treaty if -
(a) in the case of a warrant it is signed, and in any other case it is certified, by a Judge, Magistrate or other competent authority in the requesting State; and
(b) it is sealed with the official seal of a Minister of State of the requesting State."
Article 19 provides:
"ARTICLE 19
If a document that is sent from a Contracting Party to the other Contracting Party in accordance with this Treaty is not in the language of the other Contracting Party, the first-mentioned Contracting Party shall also send a translation of the document into that language."
The magistrate conducting the proceedings under subs.19(1) had before him -
(a) a document in the German language headed "HAFTBEFEHL" purporting to have been signed on 29 September 1992 by Dr Hellfried Schuller described as "Richter des Landesgerichtes" and bearing the imprint of a seal consisting of a coat of arms and the words "LANDESGERICHT SALZBURG" and, following that signature and seal, a handwritten notation purporting to have been signed on 18 November 1992 by Dr Paul Veits and bearing the imprint of a seal consisting of a coat of arms and the words "PRASIDIUM DES LANDESGERICHTES 19 SALZBURG"; and
(b) a document in the English language headed "WARRANT OF ARREST" and purporting to be a translation of the document headed "HAFTBEFEHL", the document in the English language bearing a notation, also in the English language, purporting to be signed by Sabine Witek on 23 October 1992 and bearing the imprint of a stamp consisting of the name "Sabine Witek" and certain words in the German language and, following that notation, a further notation in the German language purporting to be signed on 4 November 1992 by Dr Paul Veits and bearing the imprint of a seal appearing to be the same seal as that which the notation dated 18 November 1992 on the document referred to in (a) above bears.
Those two documents were securely affixed to a further document in the English language reading as follows:
"Certification
With reference to Article 12 (2) b of the Treaty between the Republic of Austria and the Commonwealth of Australia concerning Extrading (sic) done at Canberra on 29 March 1973 the Minister of Justice of the Republic of Austria hereby certifies to his best knowledge and belief by his official seal,
that the annexed documents are duly authenticated by the own hand signature of the President of the Salzburg Regional Court Dr. Paul VEITS,
that the original documents in German language are issued and signed by the competent Austrian judge and
that the translations are done and signed by a sworn interpreter of the court for the English language."
That document is dated 26 November 1992 and purports to be signed by Dr Nikolaus Michalek who is described as the Minister of Justice of the Republic of Austria. The document also bears the imprint of a seal.
The magistrate also received oral evidence from Maria Koranski, an accredited translator qualified to translate the German language into the English language. She gave evidence that certain amendments should be made to the English translation of the document headed 'HAFTBEFEHL" to reflect more accurately the German text. She also gave evidence that she had translated into the English language the words in the German language appearing on the stamp bearing the name "Sabine Witek" and the notations in the German language purporting to have been signed by Dr Paul Veits on 4 and 18 November 1992 respectively.
The words on the stamp were translated:
"Sworn Court translator for the English language 5081 ANIF, NEU-ANIF 105".
The notation dated 4 November 1992 was translated:
"I confirm the authenticity of the signature of Mrs Sabine WITEK, of 5081 Anif, NEU-ANIF 105 and certify at the same time that the abovementioned person is entered on the list of Sworn Court Translators.
The President of the State Court in Salzburg 4th November 1992
(-) sig. illegible Dr Paul VEITS
Round seal with State Coat of Arms and words: The President of the State Court in Salzburg."
The notation dated 18 November 1992 was translated:
"I confirm the authenticity of the signature of Dr Hellfried SCHULLER, Head of Court Dept 27 of the State Court in Salzburg.
The President of the State Court in Salzburg Date: 18th November 1992
(-) sig. illegible Dr Paul VEITS
Round Seal with State Coat of Arms and words: President of the State Court in Salzburg."
For the appellant it was submitted that the effect of s.11 of the Act and reg.4 of the Extradition (Republic of Austria) Regulations is to make the Act apply in relation to the Republic of Austria subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty; that Article 19 of the Treaty provides a limitation, condition, exception or qualification to which the application of the Act in relation to the Republic of Austria is subject; and that, as the material before the magistrate disclosed that the Republic of Austria had failed to comply with the terms of that Article in that the documents sent to Australia were not, in the respects to which we have referred, accompanied by a translation into the English language, the magistrate and the Supreme Court were in error in concluding that the appellant was eligible for surrender.
In our opinion, the short answer to this submission is that Article 19 does not provide a relevant limitation, condition, exception or qualification to which the application of the Act in relation to the Republic of Austria is subject. To sustain the appellant's submission, it would be necessary to read the Treaty as having the effect that extradition is not to be granted by the requested State in any case in which the requesting State has failed to comply with the terms of Article 19. We are unable to read the Treaty in that way. Article 19 is no more than a facultative provision designed to assist in facilitating the consideration by the requested State of any request for extradition made to it by the requesting State. It does not have the far-reaching effect for which the appellant contends.
Before considering the other submissions made on behalf of the appellant, it is necessary to refer to certain further matters.
The document in the English language headed 'WARRANT OF ARREST" consists of three parts. As amended in accordance with Mrs Koranski's evidence, it begins:
"The Austrian citizen, Maria KAINHOFER, born May 16, 1953 in St Martin am Tennengebirge, secretary, residing in 110 A Bolan Street, Bulimba, Queensland, Australia, is to be taken into custody on the strong suspicion of having attempted to commit fraudulent bankruptcy pursuant to ss 156 and 15 of the Austrian Penal Code, of having given false evidence in a court of law pursuant to s 288, Section 2 of the Austrian Penal Code, of having committed aggravated fraud (partially attempted and partially accomplished) pursuant to ss 146 and 147, Sections 2 and 3, and 15 of the Austrian Penal Code, and of having committed misappropriation pursuant to s 133, Sections 1 and 2 of the Austrian Penal Code. Her apprehension is sought due to the risk of escape and the perpetration of further crimes pursuant to s 175, Section 1, Subparagraphs 2 and 4 of the Austrian Code of Criminal Procedure."
The document then sets out various matters under the heading "Grounds". This part of the document contains statements as to the conduct constituting each of the offences. It does so in paragraphs numbered 1 to 5, par.3, being that relating to the offences of aggravated fraud, consisting of sub-paragraphs (a) to (h) inclusive. The third part of the document sets out the text of relevant provisions of the Austrian Penal Code and the Austrian Code of Criminal Procedure.
On 1 November 1993, the magistrate, pursuant to subs.19(9) of the Act, found that the appellant was eligible for surrender in relation to certain offences being the offences identified in the English translation of the warrant of arrest and referred to in pars 2, 3(a), 3(g) and 4 in that part of that document headed "Grounds". The magistrate further found that the appellant was not eligible for surrender in relation to the offences referred to in pars 1, 3(b) to 3(f) inclusive, 3(h) and 5 in that part of the document because he was not satisfied, in terms of par.19(2)(c) of the Act, that, if the conduct of the appellant constituting those offences in relation to the Republic of Austria, or equivalent conduct, had taken place in the State of Queensland at the time at which the extradition request in relation to the appellant was received, that conduct or that equivalent conduct would have constituted an extradition offence in that State.
A warrant, closely following the statutory form, being the form prescribed as Form 12 in the Schedule to the Extradition Regulations (Statutory Rules 1988 No.280), was signed by the magistrate on 1 November 1993. Its operative part ordered the police officers to whom it was addressed to commit the appellant to the Brisbane Women's Correction Centre "to await, in relation to those offences, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5) of" the Act. To which offences the operative part of the warrant is referring by the words "those offences" is not entirely clear on the face of the document. This arises because of ambiguity in the recitals to the warrant. Recital (a) refers to proceedings having been conducted in relation to the twelve offences for which the surrender of the appellant was sought by the Republic of Austria. Recital (b) refers to the supporting documents in relation to those offences having been produced to the magistrate. Recital (c) states:
"(c) I am satisfied that, if the conduct of Maria Kainhofer constituting the offence in relation to the Republic of Austria had taken place in Queensland, being the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to Maria Kainhofer was received, that conduct would have constituted an extradition offence in relation to that part of Australia."
Recital (d) refers to the absence of any extradition objection in relating to the twelve offences. Recital (e) is in these terms:
"(e) having determined that Maria Kainhofer is eligible for surrender to the Republic of Austria in relation to the extradition offences of aggravated fraud (one count), attempted aggravated fraud (one count), misappropriation of a motor car (one count), false evidence in a court of law (one count)."
The difficulty arises from the circumstance that the statutory form does not appear to contemplate a situation, such as has occurred in the present case, where the magistrate is satisfied that the person concerned is eligible for surrender in relation to some, but not all, of the offences for which the surrender of the person is sought by the requesting State. It may be that some amendment of the statutory form is required to accommodate more accurately such a situation.
It may also be noted that, although in the statutory form recitals (a) and (b) contemplate a request for surrender in respect of one or more offences, recital (c) refers only to a single offence. The warrant in the present case, following the directions given in the statutory form, refers in recitals (a) and (b) to all the offences for which the surrender of the appellant was sought and follows the statutory form in limiting recital (c) to a single, though unidentified, offence. If recital (c) were to be read as referring to all the offences referred to in recital (a), one would have expected recital (e) to relate to all of those offences. Conversely, recital (c) should have been amended so as to refer only to the offences in relation to which the magistrate was relevantly satisfied as recorded in recital (e).
Criticism may also be levelled at the form of the warrant in that it does not, on its face, identify the offences in respect of which the appellant was found to be eligible for surrender. In particular, it is not possible, on the face of the warrant, to identify which of the seven offences of aggravated fraud referred to in pars 3(a) to (f) inclusive and par.3(h) of that part of the English translation of the warrant of arrest under the heading "Grounds" are the offences to which recital (e) refers.
It should be recorded, however, that no submissions were made to the Supreme Court or to this Court as to the form or effect of the warrant issued by the magistrate. In the light of the orders we propose to make, it is unnecessary to consider further the form or effect of that warrant.
Pursuant to subs.21(1) of the Act, the appellant sought a review by the Supreme Court of the magistrate's order under subs.19(9). On 10 December 1993, the Supreme Court confirmed the magistrate's order that the appellant was eligible for surrender within the meaning of subs.19(2) of the Act in relation to what are referred to in the order of the Supreme Court as charge 2, charge 3(a), charge 3(g) and charge 4. The Supreme Court was also of opinion that the magistrate had erred in not finding that the appellant was eligible for surrender in respect of the offences referred to in pars 1, 3(b) to 3(f) inclusive, 3(h) and 5 of that part of the English translation of the warrant of arrest under the heading "Grounds". The Supreme Court, however, declined to make an order to that effect and rejected the submission on behalf of the respondents that, notwithstanding the absence of an application on their behalf for a review of the magistrate's failure to order that the appellant was eligible for surrender in respect of those offences, the respondents were entitled, by virtue of the provisions of par.21(6)(g) of the Act, to have the Supreme Court review that failure on the part of the magistrate.
It is from the order of the Supreme Court confirming the magistrate's order that the appellant has appealed to this Court. When the appeal was called on for hearing, the appellant moved, on notice, for an order that the hearing of the appeal be adjourned. The ground upon which the adjournment was sought was to afford the legal representatives of the appellant an adequate opportunity to have enquiries made of an expert interpreter, a translator and an expert in Austrian law to determine whether the appellant could, by the presentation of additional evidence resulting from those enquiries, advance an arguable case that she is not, for the purposes of the Act, an "extraditable person". The issue which the legal representatives of the appellant wished to explore - an issue not raised before either the magistrate or the Supreme Court - was whether, within the meaning of par.6(a)(i) of the Act, the appellant is a person "accused" of having committed offences against the law of the Republic of Austria.
The Court refused the adjournment principally on the ground that, by virtue of par.21(6)(d) of the Act, the Court is required to have regard only to the material that was before the magistrate. However, the Court permitted an amendment of the notice of appeal to enable the appellant to argue, notwithstanding that the point had not been taken before either the magistrate or the Supreme Court, that the magistrate should have determined that the appellant was not eligible for surrender in relation to the offences for which her surrender was sought by the Republic of Austria as the magistrate could not properly be satisfied that the supporting documents placed before him included, in terms of par.19(3)(a) of the Act, a duly authenticated warrant for the arrest of the appellant which disclosed that she was a person "accused" of the offences referred to in that warrant.
The English translation of the warrant of arrest is set out earlier in these reasons. It requires that the appellant be taken into custody "on the strong suspicion" of having committed the offences specified. It further states that the apprehension of the appellant "is sought due to the risk of escape and the perpetration of further crimes pursuant to s 175, Section 1, Subparagraphs 2 and 4 of the Austrian Code of Criminal Procedure". The English translation of the text of s 175 of the Austrian Code of Civil Procedure (as set out in the statement of the relevant law forming part of the document headed "WARRANT OF ARREST") reads:
"Section 1: The examining magistrate may order a person suspected of having committed a felony or misdemeanor to be taken into temporary custody without prior summons:
1. if the suspect is caught in the very act of committing the crime or is credibly charged with having perpetrated a felony or misdemeanor immediately after its commission or is caught with weapons or other objects derived from the felony or misdemeanor or which indicate his being an accessory to the crime;
2. if the suspect is at large or hiding or if, due to certain facts, there is a risk that he will flee or hide to avoid the impending putative punishment or other grounds;
3. if he attempts to influence witnesses, expert witnesses or accomplices, to remove traces of the offence or to impede the ascertainment of truth or if, due to certain facts, there is a risk that he would attempt to do so; or
4. if, due to certain facts, it can be assumed that he would commit an offence directed at the same object of legal protection as the crime with which he is charged, or if it can be assumed that he would perpetrate the attempted or threatened criminal act with which (he) is charged (s 74, Subparagraph 5 APC).
Section 2: If the offence is punishable by law with a term of imprisonment of at least 10 years, the suspect must be remanded into temporary custody, unless, due to certain facts, it can be assumed that all the reasons for arrest specified under Section 1, Subparagraphs 2 to 4 can be precluded."
The English translation of that part of the warrant of arrest headed "Grounds" also refers to the appellant as being "strongly suspected" of having committed the offences thereafter identified. Other statements under the heading "Grounds" may bear on the issue raised by the appellant. In relation to the offence of attempting to commit fraudulent bankruptcy (par.1), the following statements are made:
"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 adviser's office .... Through the initiation of preliminary investigations for violation of s 156 of the Austrian Penal Code (hereinafter referred to as APC), criminal proceedings were pending as of August 4, 1988. The offence is not subject to limitation (s 58, Section 3, Subparagraph 2, APC)."
In relation to the offence of giving false evidence in a court of law (par.2), the following statements appear:
"The defendant admits that the record is false, however maintains that she made no false statement. The witness, the honourable Dr Peter Masser, was heard in this regard and confirms the charges. Preliminary investigations for violation of s 288, Section 2, APC were also initiated on August 4, 1988. The false oath of disclosure took place on January 20, 1988. The offence is not subject to limitation (s 58, Section 3, Subparagraph 2, APC)."
In relation to one of the offences of aggravated fraud, that identified in par.3(a), the statement is made that "(t)he court order to extend the preliminary investigations to include the suspicion of fraud was issued on May 25, 1990". In relation to the offence of attempted aggravated fraud (par.3(g)), the statement is made that the court orders to extend preliminary investigations to include the conduct the subject of that offence were made on 19 March and 6 June 1990. The document further states, in relation to the offences identified in par.3, that the defendant admits her guilt regarding the facts and circumstances concerning the offences (a), (b), (c), (f) and (h) but pleads not guilty of the intention to defraud; that she pleads not guilty to the offences (d) and (e); and that she pleads guilty to the offence (g). The court order to extend the preliminary investigations to include the offences (b) to (f) inclusive and (h) in par.3 is said to have issued on 25 May 1990.
In relation to the offence of misappropriation (par.4), the document states that the court order for preliminary investigations was issued on 4 August 1988.
In relation to the offence of credit card fraud (par.5) the language used in the English translation is somewhat different. In relation to that offence the following statement is made:
"Court proceedings have been pending on this charge since August 5, 1991."
The nature of those proceedings, however, is not disclosed.
The English translation of the document also contains the following:
"The grounds for arrest pursuant to s 175, Section 1, Subparagraph 2 of the Austrian Penal Code apply since the defendant party was remanded into custody by order of the Salzburg State Court on July 10, 1990, from which she was released on August 8, 1990 with directions not to flee, not to hide and to report to the police once a week. She did not follow these directions. Her present whereabouts are unknown which leads to the conclusion that the defendant has tried to evade justice by fleeing.
The grounds for arrest due to perpetration of further crimes pursuant to s 175, Section 1, Subparagraph 4 of the Austrian Penal Code apply since the defendant party is charged with having committed numerous crimes against property and the danger of her committing further fraudulent acts to finance her livelihood is evident."
The Act clearly provides for the surrender of a person to a requesting State only if the person is accused, or has been convicted, of an extradition offence. We are of opinion that the Treaty is to the same effect. We read Article 11(2), which prescribes the material that is to accompany a request for extradition, as applying only where the person whose surrender is sought is a person who had been accused, or convicted, of a relevant offence. We note that Article 1 provides that each Contracting Party agrees to extradite to the other "any persons who are wanted for prosecution", as well as persons who are wanted for the imposition or enforcement of a sentence, in the requesting State for a relevant offence and that that language differs from the earlier version of Article 1 which referred to any person who is accused or has been convicted of a relevant offence. What may be regarded as the wider language in Article 1 cannot, we think, operate to broaden the scope of, for example, Article 11 as Article 1 expressly provides for extradition "in accordance with the provisions of this Treaty".
Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being "accused" of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is "accused" of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was "accused" of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being "accused" of the offence in the sense mentioned.
That the warrant of arrest provides for the appellant to be taken into custody "on the strong suspicion" of having committed the specified offences clearly suggests that her presence in the Republic of Austria is required in furtherance of the investigations being conducted by the appropriate authorities in that country rather than to answer criminal charges of which she is presently "accused" in the sense to which we have referred. Further support for that suggestion is to be found in s 175 of the Austrian Code of Criminal Procedure which provides for the taking into custody of a person "suspected of having committed a felony or a misdemeanor" where any one of the circumstances mentioned in the section exists, the person being referred to in the identification of those circumstances as "the suspect". It may be accepted that that provision authorises, in the circumstances mentioned, the taking into custody of a person who has been "accused" of a felony or misdemeanor but its language is clearly not so confined. It must be conceded that the statements extracted earlier in this judgment from the English translation of that part of the warrant headed "Grounds" are not entirely consistent with one another. However, the overriding impression is that the matter has not yet proceeded beyond the investigation stage. The only curial proceedings specifically identified are proceedings which resulted in orders authorising the conduct of preliminary investigations into the offences. It is true that the cited statement in relation to the offence to which par.1 of the document refers is expressed in terms that criminal proceedings were pending in relation to that offence on 4 August 1988. It is, however, apparent from the cited statement in relation to the other offences to which that document refers, particularly those referred to in pars 2 and 4, that the relevant event that occurred on 4 August 1988 was the making of court orders authorising preliminary investigations into the offences. The author of the document appears to have regarded the initiation of preliminary investigations into the offences. The combined effect of the cited statements in relation to the offences to which pars 1 and 2 of that document refer is that the author of the document regarded the initiation of preliminary investigations in respect of the offences as equivalent to the institution of criminal proceedings in which the appellant is charged with having committed those offences. Further material by way of explanation would be necessary before the conclusion could be reached that the statements referred to are to be taken to mean that the appellant is "accused" in the relevant sense of the specified offences. No such material was placed before the magistrate.
In the light of those considerations, we are of opinion that, on the material placed before the magistrate on behalf of the Republic of Austria, he could not properly be satisfied, in terms of pars 19(2)(a) and 19(3)(a) of the Act, that the duly authenticated warrant that he had before him provided for the arrest of the appellant as a person "accused" of the offences to which the warrant refers. It follows that the order of the Supreme Court must be set aside, and in lieu thereof, it be ordered that the order of the magistrate made on 1 November 1993 be quashed and the magistrate be directed to order the release of the appellant.
In the light of that conclusion, it is unnecessary to consider the other grounds of appeal on which the appellant relied. It is also unnecessary to resolve the issues that would arise upon the cross-appeal filed on behalf of the respondents and the appellant's objection to its competency. However, as those issues may affect cases other than the present, we think it appropriate to express our views in relation to them.
Under subss.19(9) and 19(10) of the Act, the magistrate conducting proceedings pursuant to subs.19(1) to determine whether a person whose surrender is sought is a person eligible for surrender in relation to the extradition offence or extradition offences for which the surrender of the person is sought by an extradition country may -
(a) 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 of the Attorney-General under subs.22(5); or
(b) order that the person be released.
An order to the effect of par.(a) may be made where the magistrate determines that the person is eligible for surrender "in relation to the extradition offence or one or more of the extradition offences". An order to the effect of par.(b) may be made where the magistrate determines that the person is not, "in relation to any extradition offence", eligible for surrender to the requesting State. We accept the respondents' submission that orders cannot be made under both subs.19(9) and subs.19(10) in the same proceeding. In the present case the magistrate's order was made under subs.19(9). No order was made under subs.19(10).
It is also to be observed that, where the magistrate makes a determination in terms of subs.19(9), he is, by warrant in the statutory form, to order the person to be committed to prison (par.(a)) and to record in writing the extradition offence or extradition offences in relation to which he has determined that the person is eligible for surrender and to make a copy of the record available to the person and the Attorney-General (par.(c)). It is consistent with the requirements of that subsection that the offence or offences in relation to which the magistrate has determined that the person is eligible for surrender not appear on the face of the warrant but in a separate record prepared by the magistrate. The statutory form of warrant, however, requires that the warrant identify by description the offence or offences in relation to which the person is committed to prison. In so doing it may be thought to go beyond the requirements of the Act.
Subsection 21(1) provides for the review of the order made by the magistrate, that is to say, the order under subs.19(9) that the person be committed to prison or the order under subs.19(10) that the person be released. In the case of an order that the person be committed to prison, only the person whose surrender is sought may apply for the review. In the case of an order that the person be released, only the extradition country may apply. The Act does not expressly authorise the extradition country to apply for a review in a situation where the order that the person be committed to prison follows a determination by the magistrate that the person is eligible for surrender in respect of some, but not all, of the offences in relation to which surrender is sought.
Subsection 21(2) provides that, upon the review of an order made under subs.19(9) that the person be committed to prison, the Court may either confirm the order of the magistrate or quash that order and direct a magistrate to order the release of the person. Under par.21(6)(g), the court to which the application for review is made, if it determines that the person is eligible for surrender, within the meaning of subs.19(2), in relation to an extradition offence or extradition offences, is to include in its judgment on the review a statement to that effect specifying the offence or offences.
In our opinion, the effect of these provisions is that, on the hearing of a review for which the person ordered to be committed to prison under subs.19(9) has applied, the question for the Court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country and not the more limited question whether the person is eligible for surrender in relation to the offence or offences in relation to which the magistrate has determined that the person is so eligible. The circumstance that the Act provides for the review of the magistrate's order and not for an appeal from that order is significant in this regard. It follows that, in our opinion, the Supreme Court took too narrow a view of the scope of the review upon which it was engaged.
The view which we have expressed does, however, mean that, in a case where the magistrate has determined that the person is eligible for surrender in relation to some, but not all, of the offences in respect of which surrender is sought, that part of the determination adverse to the extradition country can only be reviewed if the person concerned applies for a review of the order that he or she be committed to prison. That aspect of the matter may require the attention of the Parliament.
Section 21 of the Act also provides for an appeal to the Full Court of this Court from the order of this Court or the Supreme Court of a State or Territory upon a review applied for under subs.21(1). Under subs.21(4), such an appeal must be instituted not more than 15 days after the day on which the order from which the appeal is brought is made. No provision is made in the Act enabling an appeal to be instituted after the expiration of that period of 15 days.
The respondents submitted that the filing of the cross-appeal was authorised by Order 52, r.22 of the Federal Court Rules. Subrule (1) of that rule provides:
"(1) A respondent who desires to appeal from a part of the judgment or to seek a variation of a part of the judgment, need not institute a substantive appeal, but he shall:
(a) within 21 days after the service upon him of the notice of appeal, or within such further time as the Court or a Judge fixes, file in the Registry a notice of cross-appeal; and
(b) serve a copy of the notice upon the appellant and any other person affected by the relief which he seeks."
In our opinion, the provisions of Order 52, r.22 have no application in relation to an appeal instituted under subs.21(3) of the Act. The provisions of the rule are, in our opinion, inconsistent with the express terms of subs.21(4) of the Act. We should add that, even if the respondents be treated as having filed a substantive appeal rather than a cross-appeal, the document was filed outside the period of 15 days referred to in subs.21(4) and the appeal is, therefore, incompetent.
In the result, the appeal is allowed, the order of the Supreme Court is set aside and, in lieu thereof, it is ordered -
(i) that the order of the magistrate made on 1 November 1993 be quashed;
(ii) that the magistrate be directed to order the release of the appellant; and
(iii) that the Director of Public Prosecutions and the Republic of Austria pay the costs of Maria Kainhofer of the proceeding in the Supreme Court.
The respondents must pay the appellant's costs of and incidental to the appeal and purported cross-appeal to this Court.
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