O'Connor v Zentai

Case [2011] FCAFC 102

FEDERAL COURT OF AUSTRALIA

O’Connor v Zentai [2011] FCAFC 102

Citation: O’Connor v Zentai [2011] FCAFC 102
Appeal from: Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385
Parties: THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON v CHARLES ZENTAI, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
File number: WAD 1 of 2011
Judges: NORTH, BESANKO AND JESSUP JJ
Date of judgment: 16 August 2011
Corrigenda: 1 November 2011
24 February 2012
Catchwords:

EXTRADITION – Legislation providing for staged process of determinations by different functionaries – Ultimate decision by Minister whether person to be surrendered for extradition – Whether Minister obliged to re-consider a circumstance previously determined – Whether person was “accused” of an offence in Requesting State or merely wanted for questioning or investigation – Relevance to power to order surrender.

EXTRADITION – Construction of international treaty – Treaty requirement that offence in relation to which extradition sought be an offence in Requesting State at time of relevant acts and omissions – Whether requirement satisfied if those acts or omissions constituted an offence, whether or not that in relation to which extradition sought.

EXTRADITION – Legislation providing separate categorical and discretionary bases for refusing surrender of person for prosecution in other State – General discretion also reposed in decision-maker – Whether separate bases to be considered individually or in combination – Effect of general discretion.

ADMINISTRATIVE LAW – Legislation specifying circumstances in which Minister must, or may, refuse request for extradition, and providing also for general discretion – No obligation to give reasons – Minister in receipt of lengthy advice – Whether advice represented Minister’s reasons – Whether Minister failed to take account of considerations of which he was bound to take account – Whether trial Judge determined matters which were for the Minister – Whether Minister’s decision so unreasonable that no reasonable Minister would have made it.

ADMINISTRATIVE LAW – No express statutory requirement to give reasons – Whether obligation to give reasons to be implied.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Extradition Act 1988 (Cth)
Extradition (Republic of Hungary) Regulations 1997 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Craig v South Australia (1995) 184 CLR 163
Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer (1995) 185 CLR 528
Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416
Foster v Minister for Customs and Justice
(2000) 200 CLR 442
Government of Belgium v Postlethwaite [1988] 1 AC 924
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
In re Ismail [1999] 1 AC 320
Khanv Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Toohey; Ex…

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Details
AGLC
O'Connor v Zentai [2011] FCAFC 102
Case
[2011] FCAFC 102
Decision Date

CaseChat Overview and Summary

This appeal arises from a decision of McKerracher J, who quashed a decision by the Minister for Home Affairs to extradite Charles Zentai to Hungary for prosecution of a war crime. The Minister appealed, and the respondents cross-appealed, certain of the orders made by McKerracher J. The High Court allowed the appeal in part, set aside some orders made by McKerracher J and varied others. The primary issues before the Court were whether the Minister was obliged to reconsider a matter previously determined, whether the respondent was an “accused” under the Extradition Act, and whether the Minister’s decision was so unreasonable that no reasonable Minister would have made it. The Court found that the Minister was not obliged to reconsider a matter previously determined and that the respondent was not an “accused” under the Act. However, the Court found that the Minister failed to take into account a material consideration and that his decision was so unreasonable that no reasonable Minister would have made it.

The Court found that the Minister was not obliged to reconsider a matter previously determined. The Court held that the language of the Extradition Act did not impose such an obligation, and that to do so would be to rewrite the Act. The Court found that the respondent was not an “accused” under the Extradition Act because he was not formally charged with an offence. However, the Court held that this did not prevent the Minister from making an extradition order. The Court found that the Minister failed to take into account a material consideration, namely that the respondent had already been tried and acquitted of the same offence in Hungary. The Court held that this was a consideration that the Minister was bound to take into account, and that his failure to do so rendered his decision so unreasonable that no reasonable Minister would have made it.

The Court allowed the appeal in part, set aside some orders made by McKerracher J and varied others. The Court set aside orders 2A and 3 made by McKerracher J, which required the Minister to determine whether the respondent was to be surrendered to Hungary, and to order his release if he was not to be surrendered. The Court varied order 4 made by McKerracher J, which required the Minister to determine whether the respondent was to be surrendered to Hungary in relation to the offence of war crime. The Court held that this order was too broad, and varied it to require the Minister to determine whether the respondent was to be surrendered to Hungary in relation to the offence of war crime referred to in the extradition request made by Hungary in its letter dated 23 March 2005. The Court dismissed the cross-appeal and ordered that the appeal be allowed in part, and that certain orders made by McKerracher J be set aside or varied. The Court also ordered that the stay of the extradition order and the bail order remain in place for a further period.

Orders

Orders of the court

1. The appeal be allowed in part.

2. Orders 2A and 3 made by the primary Judge on 10 December 2010 be set aside.

3. Order 4 made by the primary Judge on 10 December 2010 be varied by omitting all words and punctuation after “him” and by substituting therefor the following:

to determine, according to law, whether the applicant is to be surrendered to the Republic of Hungary in relation to the offence of war crime referred to in the extradition request made by the Republic of Hungary in its letter dated 23 March 2005.

4. The appeal otherwise be dismissed.

5. The parties have leave to file and serve written submissions on the question of costs in accordance with the following timetable:

(a) within 14 days – any party who seeks a costs order against another party;

(b) within a further 14 days – a party against whom a costs order has been sought, by way of response to the submissions filed and served under (a); and

(c) within a further 7 days – a party who claimed costs under (a) and whose submission in that behalf was the subject of a response under (b), by way of reply to that response.

6. For a period of 28 days, or should an application be made to the High Court for special leave to appeal, for a period of 49 days:

6.1 the order set out in paragraph 4 of the orders made by McKerracher J on 10 December 2010 in Federal Court proceeding No. WAD 220 of 2009, as varied by this court, be stayed; and

6.2 the orders made by McKerracher J on 16 December 2009 in Federal Court proceeding No. WAD 220 of 2009 whereby:

(a) the warrant issued by the second respondent, a Magistrate of the State of Western Australia, dated 20 August 2008 pursuant to subsection 19(9) of the Extradition Act 1988 (Cth), committing the first respondent to imprisonment in Hakea Prison, Canning Vale, Western Australia was stayed until further order of the Court;

(b) the first respondent was admitted to bail upon the conditions set out in Schedule 1 to the order,

shall remain in force.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

This is an appeal from orders made by a single Judge of the court on 10 December 2010, for reasons which his Honour gave both on 2 July 2010 and on the date of the orders. The proceeding at first instance arose out of a determination made on 12 November 2009 by the first appellant, the Minister for Home Affairs (“the Minister”), as delegate of the second appellant, the Attorney-General, that the first respondent, Charles Zentai (“the respondent”), be surrendered for extradition to the Republic of Hungary (“Hungary”) pursuant to s 22(2) of the Extradition Act 1988 (Cth) (“the Act”). The respondent challenged that determination under s 39B of the Judiciary Act 1903 (Cth). That challenge was successful, the primary Judge ultimately granting relief in the nature of certiorari in relation to the determination of 12 November 2009, making corresponding declarations, and requiring, by mandamus, the Minister to determine that the respondent not be surrendered to Hungary and to order the release of the respondent. THE FACTS IN OUTLINE In the Australian context, the circumstances relevant to the present appeal commenced with a letter dated 23 March 2005 from the Hungarian Ministry of Justice to the Attorney‑General seeking the extradition of the respondent from Australia to Hungary for the purpose of prosecution under an arrest warrant issued on 3 March 2005 by a Military Judge of the Military Division of the Budapest Metropolitan Court. The offence for which the respondent was wanted in Hungary was a “war crime” alleged to have been committed in 1944, and described by Hungary in the following terms:… a war crime violating section 165 of Act IV of 1978 of the Hungarian Criminal Code in conjunction with section 11, paragraph 5 of Law-Decree No. 81/1945 (II.5) ME on People’s Jurisdiction enacted by Act VII of 1945, amended and complemented by Decree No. 1440/1945 (V.1.) ME (1 count).The Hungarian arrest warrant, as translated into English, identified the war crime in question as follows:A person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad. As set out in the reasons of the primary Judge, the circumstances said to sustain the prosecution of the respondent were as follows:1.[The respondent] was a soldier in the Hungarian Royal Army attached to a unit stationed at Budapest.2.Whilst on patrol duty [the respondent] captured Mr Peter Balazs (a young man of Jewish origin).3. [The respondent] dragged Mr Balazs back to the unit's army post.4.[The respondent] and two other soldiers (Captain Mader and First Lieutenant Nagy) assaulted Mr Balazs over a number of hours. Mr Balazs died of his injuries.5.[The respondent], Captain Mader and First Lieutenant Nagy weighted Mr Balazs' body and threw it into the Danube River.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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