Papazoglou v Republic of the Philippines

- INTRODUCTION This is an appeal from orders made by Beach J of the Supreme Court of Victoria relating to a request by the Republic of the Philippines for the extradition of the appellant to that country. Two applications were before his Honour: first, an application by the appellant, pursuant to s.21(1) of the Extradition Act 1988 (Cth), seeking review of a determination by a magistrate that the appellant was "eligible for surrender"; secondly, an application by the appellant for a declaration that the proceedings brought by the Philippines for the extradition of the appellant constituted an abuse of process. Although the originating process in the Supreme Court of Victoria did not say so, the appellant sought the declaration in the exercise of what was said to be the inherent jurisdiction of the Supreme Court of Victoria to supervise proceedings conducted by magistrates under the Extradition Act. On the application for review, Beach J confirmed the order made by the magistrate. That order required the appellant to be committed to prison to await either surrender to the Philippines under a surrender warrant or an order for his release made by the Attorney-General under s.22(5) of the Extradition Act. Beach J also dismissed the application for declaratory relief. The present appeal is brought against both orders made by Beach J. The jurisdiction to hear the appeal against confirmation of the magistrate's order is conferred by s.21(3) of the Extradition Act. Section 21(3) must be read together with s.24(1) of the Federal Court of Australia Act 1976 (Cth), which confers jurisdiction on the court to hear and determine, in such cases as are provided by any other Act, appeals from judgments of a court of a State exercising federal jurisdiction. The notice of appeal as filed does not identify the source of the Court's power to hear and determine the appeal from Beach J's dismissal of the application for a declaration. This omission led to discussion on the appeal, as to whether the Court had jurisdiction to entertain an appeal from a decision of a Judge of the Supreme Court of Victoria, dismissing a claim for declaratory relief that was sought as an exercise of the inherent jurisdiction of that Court. This issue had not been addressed in the appellant's written or oral submissions. Accordingly, the parties were given the opportunity to prepare written submissions on the jurisdictional issue and on the associated question of whether, assuming the Court had jurisdiction to entertain the appeal, the inherent jurisdiction of the Supreme Court of Victoria extended to staying proceedings conducted by a magistrate under the Extradition Act. The parties provided detailed written submissions on those issues. We address them later in these reasons.

- THE LEGISLATION AND THE TREAT A. The Extradition Act and the Extradition (Philippines) Regulations The principal objects of the Extradition Act are stated in s.3 as follows: "(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." It is to be noted that s.3(a) contemplates that a person (including an Australian citizen) may be extradited from Australia without the need for the extraditing country to provide evidence of guilt. Curiously, most treaties applicable to non-Commonwealth countries require no evidence of guilt to be produced by the requesting party, whereas the scheme applicable to Commonwealth countries requires that a prima facie case be established: I A Shearer, "Extradition and Human Rights" (1994) 68 ALJ 451, at 451, n.5. B. The Treaty Article 1 of the Treaty obliges each of the Contracting States to extradite to the other, in accordance with the Treaty, persons who are wanted, inter alia, for prosecution for an extraditable offence. Article 2 defines extraditable offences to include offences punishable by at least one year's imprisonment. Article 4 sets out exceptions to extradition. Article 4, para 1, provides that extradition shall not be granted in any of a number of specified circumstances. Some of these correspond, broadly, to portions of the definition of "extradition objection" in s.7 of the Extradition Act. The circumstances specified in Article 4, para.1, include the following: "(d) if final judgement has been passed in the Requested State or in a third state in respect of the offence for which the person's extradition is requested". Article 4, para 2, provides that extradition may be refused in any one of a number of specified circumstances. These include: "(e) if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is requested, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment." III. THE COURSE OF EVENTS A. The Facts As we have noted, s.21(6)(d) of the Extradition Act requires the Court, on an appeal under s.21(3), to have regard only to material before the magistrate. The following account is based on that material and on the helpful summary of events contained in the judgment of Beach J. The appellant was born in Greece on 6 September 1946. In 1971 he settled in Australia with his mother. In 1974 he obtained Australian citizenship. He married in 1977, but was divorced in 1989. From 1984 to 1988 the appellant was the principal of Goldair (Aust) Pty Ltd ("Goldair"), a company which carried on business as a "consolidator" and sales agent in Melbourne. A consolidator is generally considered to be an organisation that wholesales airline tickets. While Goldair was not a wholesaler, it was considered to be a consolidator because it entered into a relationship with Philippines Airlines Inc ("PAL") to promote PAL's services through an organised group of travel agents. Special commission arrangements were made in consequence of this relationship. At this time PAL was owned and operated by the Philippines Government. From about January 1984 to about January 1988 the appellant made claims on PAL for incentive commissions on behalf of Goldair. These claims, which were prepared in Victoria, were presented to PAL each month. The appellant travelled to the Philippines frequently in order to file the claims and collect cheques. Relevant conduct thus took place in both Victoria and the Philippines and, insofar as the claims were deliberately false, involved offences in both jurisdictions. In June 1988, PAL conducted an audit of Goldair's