Kainhofer v Director of Public Prosecutions (No 2)
[1996] FCA 818
•17 SEPTEMBER 1996
CATCHWORDS
EXTRADITION - application of Extradition Act 1988, s19(2)(a) - Queensland Criminal Code, ss427(1), 408A - double criminality - whether extraditable offences satisfy test of double criminality - whether inferences may be drawn from extradition documents - whether material referred to state of mind necessary to constitute the offence.
EVIDENCE - Extradition Act 1988, ss11(1), 11(1C), 19 - Extradition (Republic of Austria) Regulations, reg4 - incorporation of extradition treaty - document in foreign language - whether foreign state required to produce translation of all documents forwarded to Australia in support of extradition request - distinction between documents in support of extradition application and authentication of such documents - no requirement for translation of authentications - whether magistrate may consider procedural requirements.
APPEALS - Extradition Act 1988, ss19(9), 19(10), 21 - who may appeal - Extradition Act 1988, ss21(3) and (4) - whether s21(3) extends to cross-appeals - effect of inconsistency with Court's rules - whether cross-appeal out of time - reconsideration of issues on which a Full Court has already expressed a view, although obiter dictum - Court should follow what has previously been determined, unless clearly wrong.
Extradition Act 1988; ss11, 19, 21
Judiciary Act 1903; s39B
DPP v Kainhofer (1995) 70 ALJR 117
Ex parte Hicks (1991) 65 ALJR 398
Federal Republic of Germany v Haddad (1990) 21 FCR 496
Magman International Pty Limited v Westpac Banking Corporation (1991) 32 FCR 1
Weist v DPP (1988) 23 FCR 472
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
MARIA KAINHOFER v THE DIRECTOR OF PUBLIC PROSECUTIONS
QG 222 of 1993
LOCKHART, HILL & KIEFEL JJ
BRISBANE
17 SEPTEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
QUEENSLAND DISTRICT REGISTRY ) No QG 222 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF QUEENSLAND
BETWEEN:MARIA KAINHOFER
Applicant
AND:THE DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE REPUBLIC OF AUSTRIA
Second Respondent
CORAM: LOCKHART, HILL & KIEFEL JJ
PLACE: BRISBANE
DATED: 17 SEPTEMBER 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The cross-appeal be dismissed.
The respondents pay the reasonable costs of the appellant of the appeal.
Orders 1, 2 and 3 shall not take effect until 24 September 1996.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
QUEENSLAND DISTRICT REGISTRY ) No QG 222 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF QUEENSLAND
BETWEEN:MARIA KAINHOFER
Applicant
AND:THE DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE REPUBLIC OF AUSTRIA
Second Respondent
CORAM: LOCKHART, HILL & KIEFEL JJ
PLACE: BRISBANE
DATED: 17 SEPTEMBER 1996
REASONS FOR JUDGMENT
THE COURT:
HISTORY OF THE PROCEEDINGS
On 1 November 1993 a stipendiary magistrate ordered that the appellant, Ms Kainhofer, be committed to prison to await, in relation to four offences, surrender under a surrender warrant or temporary surrender warrant, or release pursuant to an order under s25(5) of the Extradition Act 1988 ("the Act"). The four offences (hereafter referred to as "the extradition offences") may for present purposes be shortly described as involving one count of perjury, one of false pretences, one of aggravated fraud and one of stealing or unlawful possession of a motor vehicle. The learned
magistrate had immediately prior to making that order found eight other offences not to be extradition offences.
Within the 15 days permitted by s. 21 of the Act Ms Kainhofer applied to the Supreme Court of Queensland to review the learned magistrate's order. The application for review was heard by White J, who confirmed the magistrate's order.
No separate review proceedings were instigated by or on behalf of the Republic of Austria against the magistrate's decision not to specify the eight additional offences as extradition offences. However, the Director of Public Prosecutions on behalf of the Republic of Austria sought to argue before her Honour that the learned magistrate should have concluded that each of these eight additional offences were extradition offences.
Her Honour was of the view that because no separate review proceedings had been instituted by or on behalf of the Republic of Austria, the Court lacked jurisdiction to decide the matter. She did, however, express the view that had there been jurisdiction she would have found that each of the eight additional offences was an extradition offence.
Ms Kainhofer appealed to the Full Court of this Court against the order of White J. Three issues arose on that appeal. The first was whether the Republic of Austria
was required to transmit to Australia and produce to the magistrate a translation of part of a document forwarded by it to Australia in support of the extradition request. The relevant material was in fact the subject of expert evidence by way of translation before the magistrate. We refer hereafter to this issue as "the translation issue".
The second matter in issue was whether the four extraditable offences found by the magistrate to exist and confirmed by White J satisfied the test of double criminality, that is to say whether the conduct alleged against Ms Kainhofer would constitute an offence under the law of Queensland if it had taken place there. We refer to this second issue as "the double criminality issue".
The third issue was whether the magistrate should have ruled in respect of the eight additional offences to which reference has already been made that they constituted extradition offences. This last matter was raised by a cross-appeal lodged against the orders of White J for failing to specify the eight counts referred to in the warrant of arrest as extradition offences. We refer to this third issue as "the issue involved in the cross-appeal".
The appeal to this Court was heard by a Full Court comprising Neaves, Olney and Cooper JJ. That appeal had been validly instituted having regard to s21(4) of the Act. However, Ms Kainhofer objected to the competency of the Full Court to hear the cross-appeal alleging that the cross-appeal had not been filed in time having regard to s21(4) of the Act or the rules of the Court.
When the proceedings came before the Full Court there was raised for the first time, by leave of the Court, a new issue, namely, whether on the material before the magistrate, the magistrate should have directed that Ms Kainhofer was not eligible for surrender because the magistrate could not properly have been satisfied that she was a person "accused" of the offences referred to in the warrants.
The Full Court answered this new question favourably to Ms Kainhofer. This necessarily led the Court to the conclusion that the appeal from the Supreme Court of Queensland should be allowed and the magistrate's order set aside. The Court nevertheless dealt with the first of the three issues argued before it, ie the translation issue, and decided it in favour of the present respondents. The Court also, while finding it unnecessary to determine the issue, expressed its views on its jurisdiction to deal with the cross-appeal. Particularly, the Court suggested that a cross-appeal was required by force of s21(4) of the Act to be instituted not more than fifteen days after the date of the order from which the appeal was brought. Since the present cross-appeal had not been filed within that time, the Court was of the view that the cross-appeal was incompetent. No order dismissing the cross-appeal was made, although that is implicit in other orders made at the time by their Honours, including an order for the costs of the cross-appeal.
Ms Kainhofer then appealed to the High Court with leave on the question whether the magistrate was entitled to determine whether she was eligible for surrender as being a person who had been "accused" of the various offences and if so whether the evidence before the magistrate permitted the conclusion that she was.
The High Court allowed Ms Kainhofer's appeal. The Court was of the view that the magistrate had no jurisdiction to determine whether Ms Kainhofer was a person accused of the various offences to which the warrant referred. That was an issue for determination by the Attorney-General. The majority judgment of Brennan CJ, Dawson and McHugh JJ, reported at (1995) 70 ALJR 117 at 122, the judgment of Toohey J at 123, and that of Gummow J at 127, all point to the possibility of such an issue being determined in proceedings brought under s39B of the Judiciary Act 1903 (Cth). Such proceedings have been foreshadowed to us, but have not yet been commenced. An application to adjourn the present appeal pending the making of such an application was refused.
The High Court remitted the matter to this Court "for determination on the remaining issues on the appeal and cross-appeal from the Supreme Court of Queensland." It made orders having the effect of bail conditions, to apply until this Court ordered otherwise. For the avoidance of any doubt, we made an order under s21(6)(f)(iv) of the Act that Ms Kainhofer remain on bail subject to the same terms and conditions as expressed in the High Court's order pending the determination of the present appeal or further order.
THE ISSUES FOR DETERMINATION
In summary, and in accordance with the order of the High Court, there thus fall for decision before us the following issues:
1.the translation issue;
2.the double criminality issue;
3.the issue involved in the cross-appeal.
However, in respect of the first and third of these issues a Full Court of this Court has already expressed a view. Strictly what was said by the Full Court was dicta and is not binding upon us. It is, however, somewhat invidious for a Full Court differently constituted to be called to pass upon precisely the same issues as have already been decided by another Full Court. We are of the view that, while not shirking our responsibility to consider each issue falling for determination before us, we should follow what had previously been determined by a Full Court unless of the view that that Full Court was clearly wrong: cf Byrne v Australian Airlines Limited (1994) 47 FCR 300 at 304-5; and Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 20. We turn now to consider the three issues remaining for decision.
THE TRANSLATION ISSUE
The Extradition Treaty between Australia and the Republic of Austria (as amended by a protocol coming into force on 1 February 1987) ("the Treaty") is made part of Australian municipal law by the Extradition (Republic of Austria) Regulations ("the Regulations") made pursuant to the Act. Article 19 of the Treaty provides:
"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."
Article 11(1) of the Treaty requires a request for extradition to be made in writing and for all documents furnished in support of that request to be "duly authenticated".
The submission is that, for an extradition to be valid, there must be direct compliance with the Treaty and, particularly, Article 19. In support of the submission that Article 19 has not been complied with, reference is made to two documents said not to have been wholly translated. The first was a one page document containing; (i) words in English swearing, (a) to the conformity of the translation with the original, signed "Sabina Witek", (b) a stamp containing the name "Sabina Witek" and other words in the German language; (ii) some lines of writing in the German language signed Dr Paul Veits; and (iii) a stamp containing a Coat of Arms, the word "Salzburg" and words in the German language. The second document was a one page document containing some handwritten lines in the German language, signed "Dr Paul Veits" with a stamp bearing a Coat of Arms, and with the word "Salzburg" and German words.
It should be noted that at the hearing evidence was adduced of the meaning of the German words appearing on the face of these two pages. Hence the requirement of authentication and proof contained in ss19(3)(c) and 19(6) of the Act (as discussed by this Court in cases such as Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 499 and Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 289-290), had been complied with in the proceedings before the magistrate. The untranslated words went either to the confirmation of authority or to description of the translator. The English translation is set out in full in the previous judgment of the Court and need not be repeated.
The Full Court rejected the appellant's submission. In so doing their Honours referred to ss11(1) and 11(1)(c) of the Act and reg4 of the Regulations. Section 11(1) provides:
"(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."
Section 11(1C) then provides that, for the purposes of s11(1), the limitations, conditions, exceptions or qualifications 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 Regulations provides that the Act applies in relation to the Republic of Austria, subject to the Treaty.
The submission that there should be strict compliance with Article 19 was said to follow from a combination of s11 of the Act and reg4 of the Regulations. It was said that they operated 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; and that Article 19 was such a limitation, condition, exception or qualification.
The submission was dealt with quite shortly. The Full Court said:
"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."
With respect, we agree with their Honour's comments. The submission fails as well for other reasons. First, Article 19 is concerned, in our opinion, only with translation of documents furnished in support of a request for extradition. It is not, as Article 12 demonstrates, concerned with translations of authentications. There is apparent in the Treaty a distinction between a document forwarded in support of an extradition application and an authentication of such a document. Here what was said to be untranslated was not the document furnished but the authentication of it. In other words, there never was a failure to comply with Article 19.
Second, there must be real doubt, following the decision of the High Court in the present case, whether the magistrate had jurisdiction to refuse to commit on the basis of a failure to comply with Article 19. The magistrate is not at large. The task of the magistrate is first to be satisfied that the conditions of jurisdiction prescribed by sub-s(1) of s19 are satisfied, and then to determine compliance of the supporting documents with sub-ss(2)(a) and (b) of that section. The magistrate then examines the character of the conduct of the person constituting the offence under s19(2)(c) and finally is required to determine whether he or she is satisfied that there are substantial grounds for believing that there is an extradition objection. None of these matters entrusted to the magistrate includes the question whether the request for extradition complies with a procedural requirement of a treaty, assuming for this purpose that Article 12 or Article 19 were to require a translation.
This is not to say that the question is non-justiciable. It may be that an appropriate application could be made under s39B of the Judiciary Act, directed at the Attorney-General in respect of the giving of a notice under s16 of the Act. That, however, is not a matter we need to consider further.
THE DOUBLE CRIMINALITY ISSUE
Four counts were considered by White J to satisfy the requirement stated in s19(2)(a) that the conduct constituting the offence in Austria, if it (or equivalent conduct) had taken place in Queensland, where the proceedings were conducted, would have constituted an extradition offence in that State. An offence is an extradition offence in relation to a part of Australia where the maximum penalty for that offence is death, imprisonment or other deprivation of liberty for a period of not less than twelve months: s5(1) (definition of "extradition offence").
The first count charged that Ms Kainhofer had given false evidence in a court of law by swearing a false oath that she did not possess items with "a retention of title", although items were found in her possession that were subject to such a retention of title.
The facts as recited in the extradition documents were expressed as follows:
"2.)Giving false evidence in a court of law pursuant to § 288, Section 2 of the Austrian Penal Code by swearing a false oath of disclosure on January 20, 1988 at the Radstadt District Court, by swearing not to possess items with a retention of title, although items were found in her possession that were obviously subject to a reservation of title.
An oath of disclosure is a measure taken during Austrian execution proceedings. The obligated party can be requested to render such an oath if no attached objects were found on its premises. In this case, the obligated party, duly sworn, must itemize its entire property including those objects in its custody. The defendant made a false deposition and confirmed the same with her signature.
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 § 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 (§ 58, Section 3, Subparagraph 2, APC)."
It is submitted that the magistrate was not entitled to conclude that an offence of perjury under s123 of the Criminal Code of Queensland was made out, that being the equivalent offence satisfying the definition of an "extradition offence", although it was clear that Ms Kainhofer had given false testimony in a judicial proceeding, it is submitted that the charge did not state expressly that she had done so "knowingly", an essential ingredient of the offence under s123.
This and the submissions concerning the remaining three counts depended upon the proposition advanced on behalf of Ms Kainhofer that it was not permissible for the magistrate, or the Supreme Court of Queensland on a review of the magistrate's decision, to draw inferences. But the authorities are directly in conflict with this proposition.
There is obviously a difficulty that will often arise in seeking to determine whether facts which constitute an offence under one jurisdiction constitute an offence under another jurisdiction with a different set of laws. That difficulty is discussed by Gummow J in the High Court appeal in the present case: at (1995) 70 ALJR 117 at 133 and 134-5. It is no doubt for this reason that s10(3) of the Act directs any difference between the denomination or categorisation of offences between the laws of the two States to be disregarded. This provision has its own difficulty which need not detain us here.
In Weist v DPP (1988) 23 FCR 472 at 519-520, Gummow J, with whose judgment on this point Sheppard J agreed, pointed out that it was sufficient if the terms of a warrant made it clear that the state of mind necessary to constitute an offence existed without the necessity of specifying that state of mind expressly. The matter was not left in doubt in Zoeller v Federal Republic of Germany (1989) 23 FCR 282. In that case Lockhart, Gummow and Hill JJ said (at 302):
"For the appellant it was argued that each of the offences referred to in ss 29A, 29B and 29D requires the existence of a guilty mind but that nowhere in the warrant is there a statement that the appellant had the intent to defraud (s 29A) or had a view to obtain money or any other benefit or advantage (s 29B) or acted dishonestly (s 29D). It is said that a guilty mind could not be inferred. It had to be stated. In passing we note that s 4(1A) of the Extradition (Foreign States) Act dealt specifically with means rea by posing the question whether the acts or omissions would constitute an Australian offence of the kind described in the Schedule to that Act 'if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence'.
While it is true that the statement of facts contains no direct description of the appellant's state of mind in terms of that required by the statement of the Australian offences, the facts stated make it clear that the appellant knowing entered into agreement that were backdated and that he did so to enable him to claim tax deductions. These facts in our opinion sufficiently state the guilty mind of the appellant without the necessity to do so explicitly."
In the present case it is charged that the items in question were "obviously" subject to the reservation of title. It can be inferred from the reference to obviousness that Ms Kainhofer also had knowledge that the items in question were subject to a reservation of title, that is to say she had knowledge that the statement, which she admitted was false, was knowingly false.
The second count is described in the warrant in the following terms:
"3.)Committing aggravated fraud (partially attempted and partially accomplished) pursuant to §§ 15, 146 and 147, Sections 2 and 3 of the Austrian Penal Code, by intending to unjustly enrich herself or a third party through the actions of the deceived party:
a)By deceiving the authorized agent of DIETRICH EDV-Programme in Villach by inducing him to deliver two computers and programs on May 31, 1989 and on October 21, 1989 by pretending to be solvent and willing to pay for said items;
This resulted in damages in the amount of ATS 38.400,--. The court order to extend preliminary investigations to include the suspicion of fraud was issued on May 25, 1990. The orders for the computer processing equipment were placed on May 31, 1989 and October 21, 1989.
This offence is not subject to limitation (§ 58, Section 3, Subparagraph 2, APC)."
It is stated that Ms Kainhofer admits her guilt regarding the facts and circumstances of this count but pleads not guilty of the intention to defraud "since numerous forced realizations were pending at the time of concluding the individual agreements and, since she did not dispose of sufficient financial means, she therefore could not expect to be able to pay for the debts incurred".
The relevant Queensland offence relied upon is s427(1) of the Queensland Criminal Code, namely, the offence of obtaining goods for credit by false pretence or wilfully false promise. It is an essential ingredient of the offence under s427(1) that there be an intent to defraud. The magistrate inferred such an intent. On balance, we think that the intent to defraud may be inferred from the material before the magistrate. In so saying we do not have regard to the admission which in any event does not purport to be an admission of intent to defraud. However, that intent is to be found in the use of the words "pretending to be solvent" and directly, of course, in the words "intending to defraud".
The next count is expressed in the warrant as follows:
"3.) ...
g)By fraudulently obtaining prior turnover tax in the amount of ATS 240.000,-- by submitting false documents to the revenue office in St. Johann im Pongau in 1989 and in by submitting false invoices of the non-existent company 'Sonnenoase Waikiki' to the revenue office in Linz from December 1989 to April 1990, thereby fraudulently effecting a tax credit entry in the amount of ATS 5.211.002,--, whereby ATS 2.090.370,-- remained an attempt;
This represents a case of attempted aggravated fraud pursuant to § 147, Section 1, Subparagraph 1 of the Austrian Penal Code since the fraudulent attempt was made by means of submitting false documents.
The court order to extend preliminary investigations to include the submission of false documents to the revenue office in St. Johann im Pongau was issued on March 19, 1990; to include the submission of false documents to the revenue office in Linz on June 6, 1990 (§ 58, Section 3, Subparagraph 2, APC)."
It may be noted that subsequently it is stated that Ms Kainhofer has pleaded guilty to having forged the documents to obtain the turnover tax refund. A submission that a guilty mind could not be inferred from these facts could not seriously be maintained.
The relevant offence in Australia would be s. 29D of the Crimes Act 1914 (Cth), which section requires proof of fraud. Given that it is said that Ms Kainhofer forged documents to obtain a refund of Value Added Tax to which she was not entitled, it is clear that the necessary element of fraud may readily be inferred.
The fourth count is described in the warrant as follows:
"4.)Committing misappropriation pursuant to § 133, Sections 1 and 2 of the Austrian Penal Code by concluding a
lease agreement with OSTERREICHISCHE LEASING GmbH on October 17, 1985 for an Alfa Spider 2.0 motor vehicle, license plate S 465.784; said agreement was terminated by the OSTERREICHISCHE LEASING GmbH as of June 29, 1987 due to default in payment, but the vehicle was not returned by the defendant party, who therefore unlawfully appropriated property entrusted to her to her own use and benefit, with the intent to unjustly enrich herself or a third party.
This motor vehicle could only be returned to the owner, the Austrian Leasing-Ges.m.b.H., by means of court confiscation since the defendant refused to surrender said property. The facts and circumstances were confirmed by the deposition of an informed representative of the Austrian Leasing-GesmbH.
The Alfa Spider had a value of approximately ATS 135.000,-- at the time of the misappropriation.
The court order for preliminary investigations was issued on August 4, 1988. This offence is not subject to limitation (§ 58, Section 3, Subparagraph 2, APC)."
The magistrate was of the view that conduct so described would not constitute an offence under s408C of the Queensland Criminal Code, but would constitute stealing.
On appeal White J was of the view that the relevant offence was that described in s408A of the Code. The essential elements of that offence are unlawful use of a motor vehicle without the consent of the person in lawful possession of it. As her Honour points out, the decision of the Court of Criminal Appeal in Queensland in R v Cameron (1990) 46 A Crim R 329 makes it plain that the retention of a motor vehicle beyond a period of bailment without the permission of the person lawfully entitled to possession constitutes an offence under s408A of the Code. Given that it is alleged that the failure to return the property was accompanied by an intent on Ms Kainhofer's part to unjustly enrich herself, matters of knowledge and intent may readily be inferred. Particularly, in so far as inferences be necessary, it may be inferred without a moment's hesitation from the facts stated that termination of the bailment agreement necessitated the return of the car to the bailor, that this was known to Ms Kainhofer and that with that knowledge she continued to use the car without the consent of the owner, Osterreichische Leasing GmbH.
It follows that there is no substance in the appeal on the issue of double criminality.
THE CROSS APPEAL
It will be recalled that the learned magistrate formed the view that the remaining eight offences did not satisfy the double criminality rule. Ms Kainhofer appealed to the Supreme Court of Queensland from the magistrate's decision that she should be surrendered for extradition in respect of the four counts to which reference has already been made. She
did so within the time for appeal required by s21(1) of the Act. That section provides as follows:
"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."
The submission made before White J and before this Court was that when the magistrate acted under s19 he was authorised to make orders under either ss19(9) or 19(10) of the Act. These two subsections are mutually exclusive, in that s19(9), on the one hand, contemplates surrender for extradition, and on the other s19(10) contemplates release. Thus where a magistrate determines that some, but not all, of the offences charged are extradition offences, only the person surrendered for extradition may appeal, and no right of appeal exists in respect of the country seeking extradition or its agent.
This submission found favour before her Honour White J. It was not, however, accepted by the Full Court of this Court. In this respect we agree completely with the Full Court as previously constituted.
What s21 does is to permit an appeal to be instituted either by the person of whom extradition is requested or by the extradition country, depending upon whether an order has been made under sub-ss(9) or (10) of s19 of the Act.
If one or the other appeals, as happened in this case, the Federal Court or the Supreme Court of a State or Territory, as the case may be, is invested with jurisdiction to "review" the order made by the magistrate under sub-ss(9) or (10). The review is a review of the relevant order in this case, the order that Ms Kainhofer be committed to await surrender. But the issue on the review is not limited to the question whether Ms Kainhofer should be committed for surrender only in respect of the four counts found to constitute double criminality. The word "review" is not a word of limitation; it is a word of great width. The word may have different meanings depending upon its context; cf Re Brindle; Ex parte FB & FA McMahon Pty Limited (1992) 35 FCR 506 and 509-510. In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate. But there is no reason to restrict the review to a consideration of whether the warrant for surrender should be made in respect only of the offences found to constitute ingredients of double criminality. As the Full Court said in the earlier proceedings:
"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, with in 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 of a view of the scope of the review upon which it was engaged."
However that was not the end of the matter. Ms Kainhofer appealed to this Court in a timely way from the orders made against her. The Republic of Austria and the Director of Public Prosecutions, while they did cross-appeal within the time prescribed by the Court's rules, failed to comply, if compliance was required, with ss21(3) and (4) of the Act which are in the following terms:
"(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."
The Full Court was of the view that the provisions of ss21(3) and (4) were applicable to a cross-appeal to a Full Court. Hence as the cross-appeal had not been lodged within fifteen days, the Full Court lacked jurisdiction to hear it. Their Honours said:
"In our opinion, the provisions of O/r. 52, O/r. 22 have not 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."
Two questions are raised by this part of the Full Court's decision. The first is whether the right of appeal conferred by s21(3), and the limitation thereto in s21(4), preclude a cross-appeal being brought within the Court's rules because of inconsistency with those rules. The second question is whether s. 21(3) extends to a cross-appeal or merely to a substantive appeal. The two questions are related.
A cross-appeal is itself an appeal. It enlivens the appellate jurisdiction of the Full Court to examine that part of the decision which is the subject of the cross-appeal, just as an appeal does. Prima facie, therefore, ss21(3) and (4) apply to a cross-appeal just as they apply to the appeal simpliciter. Nevertheless, a cross-appeal necessarily involves the prior lodging of an appeal. And, if an appeal can be commenced at any time up to and including the last moment of the fifteen day limitation period, it may be argued that s21(4) should not be construed to include a cross-appeal, because late lodgement of the initial appeal could effectively preclude the bringing of a cross-appeal. The contrary view is that where both parties seek to appeal it is open to both to do so within time; which party becomes the cross-appellant and which party becomes the appellant is but a matter of timing rather than substance. In our view, this contrary view is correct.
In the alternative, we were referred to a decision of Toohey J in Ex parte Hicks (1991) 65 ALJR 398 where his Honour held that with the provisions of s35(4) permitting, appeals to the Full Court within the maximum fifteen day period by the person of whom extradition is sought or by New Zealand as the State desiring extradition were not exhaustive, and that the Full Court retained its appellant powers under s28 of the Federal Court of Australia Act 1976. We do not read his Honour as deciding that the requirements of a mandatory limitation period such as those contained in s21(4) may be circumvented by the making of an application to the Full Court relying solely upon the Federal Court Act. If that was what his Honour purported to decide, the decision would be deserving of close consideration and respect, but would not bind this Court: Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664.
In summary, we are of the view that the failure of the respondents to cross-appeal within the fifteen day period has the consequence that the Full Court is deprived of jurisdiction to hear the cross-appeal and that this is the case whether or not the cross-appeal was lodged within the time prescribed by the Federal Court Rules.
We would accordingly propose to dismiss the appeal and the cross-appeal. By agreement between the parties, the respondents are to pay the applicant's reasonable costs of the appeal and cross-appeal and we will propose to so order.
The order of this Court (mentioned earlier) that Ms Kainhofer remain on bail pending the determination of this appeal or further order will cease to have effect upon the dismissal of the appeal. Ms Kainhofer may wish to seek special leave to appeal from this Court's judgment to the High Court.
So that Ms Kainhofer may consider our reasons and decide which course she proposes to follow, including any application to the High Court for bail pending the determination of any application for special leave to appeal, we shall order that the orders dismissing the appeal and cross-appeal and for costs shall not take effect until 24 September 1996.
I certify that this and the
preceding twenty-seven (27) pages
are a true copy of the Reasons
for Judgment herein of their Honours
Lockhart, Hill and Kiefel JJ.
Associate:
Date: 17 September 1996
Counsel and Solicitors J A Griffin QC instructed by
for Applicant: Witheriff Nyst
Counsel and Solicitors N J Williams instructed by the
for Respondents: Commonwealth Director of Public Prosecutions
Date of Hearing: 30 July 1996
Date Judgment Delivered: 17 September 1996
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