Parker v Federal Republic of Germany

[1999] HCATrans 408

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H6 of 1998

B e t w e e n -

GREGORY PARKER

Applicant

and

FEDERAL REPUBLIC OF GERMANY

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 9.31 AM

Copyright in the High Court of Australia

MR W.M. HODGMAN, QC:   May it please, your Honours, in this matter I appear with my learned friend, MR G.L. SEALY, for the applicant for special leave.  (instructed by Piggott, Wood & Baker)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth:   May it please the Court, I appear with my learned friend, MS J. READ, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GLEESON CJ:   Yes, Mr Solicitor.  Yes, Mr Hodgman.

MR HODGMAN:   May it please your Honours.  It is our respectful submission that this application for special leave raises matters of enormous public importance affecting every magistrate and court in Australia called upon to determine extradition proceedings, but also affecting Australia’s relations with at least 25 other countries, including the United States, where the extradition treaties are similar to the treaty in the instant case.

By way of brief introduction, most Australian citizens would be astounded to know that if a foreign country, say for example the Federal Republic of Germany, wanted their extradition, all that the Federal Republic of Germany would have to do is to issue a warrant of arrest out of a District Court setting out the alleged charges and a statement of the acts or omissions alleged against the person claimed, forward the same to Australia seeking the Australian Attorney‑General’s support, and the Australian citizen could then be arrested and must be held in custody unless there are special circumstances, and will be extradited to the Federal Republic of Germany.  The Australian citizen would be surprised, if not staggered to find ‑ ‑ ‑

GUMMOW J:   That is not right, Mr Hodgman. That is not right at all. That is just not a fair description of the Act whatsoever.

MR HODGMAN:   I am sorry, your Honour.  I thought that was a fair summary.

GUMMOW J:   At the end there is an executive discretion, is there not?

MR HODGMAN:   That is so, your Honour.  I am not disputing that.

GUMMOW J:   Right.

MR HODGMAN:   The Australian citizen, if I might continue, would be, we suggest, amazed to find that at the extradition proceeding he or she cannot deny his or her guilt.  The magistrate is not ‑ ‑ ‑

GUMMOW J:   Mr Hodgman, what is the amazement of the Australian citizen got to do with it?  We have to construe the statute and the treaty and the regulations.

MR HODGMAN: My respectful submission is that we must set the basis of the application and how it is dealt with before your Honours, and I will then explain why it is crucial that at the hearing before the section 19 magistrate ‑ ‑ ‑

GUMMOW J:   You can assume some familiarity on the part of the Court with the Act and the regulations.

MR HODGMAN:   I do, your Honour.

GUMMOW J:   We have to get to some specificities from your point of view.

MR HODGMAN:   We will come directly to it, your Honour.  I will come directly to the summary of argument and, to raise the matters which I wish to put now, I will defer them until later.  If I might refer your Honours to page 90 of the application book and the concise statement of the leave or special leave questions:

1.1  This application involves substantive questions of law, and the fundamental right of all Australian citizens not to be extradited against their will to foreign countries unless the provisions of the Extradition Act 1988 and the relevant Treaty have been strictly complied with.

1.2  Specifically, this application raises the following questions: -

1.3 In a case where s 19(2)(b) of the Extradition Act 1988 (“the Act”) operates to require any documents other than the “supporting documents” to accompany or support an extradition request, are such other documents required to be produced to the magistrate conducting proceedings under s 19 of the Act (“the s 19 magistrate”)?

1.4 Is a s 19 magistrate, in a case where s 19(2)(b) of the Act operates to require the production to that magistrate of any documents other than the “supporting documents”, required to determine whether such other documents accompanied the extradition request?

1.5 Is a s 19 magistrate required to determine whether the person who is before the Court is identical with the person referred to in the extradition request?

The next, your Honour, and I will then pass on to the others:

1.6 The correct interpretation of s 19(2)(c) of the Act (the so‑called “dual criminality” requirement) -

The interpretation of the Treaty in relation to the “degree of particularity” in relations to the requirements of Article 9(3) of the treaty. 

Your Honours, if I can come immediately to the matters set out on page 91:

2.1  On 31 October 1991 the Federal Republic of Germany (FRG) procured the issue from a German District Court of a warrant for the arrest of “George Parker”.  The warrant (as translated) stated in part that:-

“The person charged is highly suspected of having traded in narcotics in a not insignificant quantity and without a licence at least from July 1989 until at least June 1991 in Lahnstein, Koblenz and at other places by at least nine independent criminal acts…..

2.2  In or about March of 1992 the Applicant, who is an Australian citizen, was arrested pursuant to a provisional arrest warrant…..

2.3  On 20 May 1992 a magistrate –

Mr Estcourt –

conducted proceedings…..and determined that the Applicant was not eligible for surrender in respect of any of the offences detailed in the arrest warrant…..

2.4  More than four years later, on 19 July 1996 the FRG procured the issue from the same German Court of a further warrant for the arrest of “George Parker” on seven similar, although not completely identical charges.

2.5  On 10 April 1997 the Applicant was arrested on a provisional warrant –

and was brought before Magistrate Phillip Wright.  At that hearing, your Honours, counsel for the Federal Republic of Germany in opposing his bail application – you will see this is relevant because I will come back to it in a moment – produced three documents of alleged identification.  The first is not relevant, but the second document was a document received by Interpol Canberra from Weisbaden:

concerning a person described as: -

“SOBOLEWSKI Grzegorz

and stated the words:

“His identity has not been established with certainty”

Another of the documents tendered by the Federal Republic of Germany referred to one:

“PARKER Gregory, born on 1st June 1939”.

and included the notation:

“IDENTITY NOT CONFIRMED – DUAL NATIONALITY: POLISH AND AUSTRALIAN (NOT CONFIRMED)”

The magistrate made an order that Mr Parker, notwithstanding these matters, was eligible for surrender for extradition.  The matter then came by way of an order to review before his Honour Mr Justice Heerey on 27 June 1997:

On 10 July 1997 Heerey J –

I am now reading from page 93 -

ordered (inter alia) that the orders made by Magistrate Wright on 14 May 1997 be quashed and that Magistrate Wright order the release of the Applicant.  In written reasons for judgment Heerey J said (at p. 19): -

“I find that the second and third identification documents constituted information concerning the identity and nationality of the person claimed, that such information was available to the FRG at the time the request for extradition was made, but did not accompany the request.  Accordingly I find that there has been a non‑compliance with Article 9(2)(a) of the [extradition] Treaty.”

Your Honours will not need me to remind you that under the Extradition Act the regulations made thereunder can in fact extend the Act and the treaty itself becomes, effectively, the domestic law of Australia.

GLEESON CJ:   Mr Hodgman, may I interrupt you for a moment. As I understand it, the essence of the reasoning of the Full Court of the Federal Court was that the decision of this Court in Kainhofer meant that the section 19 magistrate was not concerned with the issues that you now seek to ventilate.

MR HODGMAN:   Yes, your Honour.

GLEESON CJ:   It is necessary for you to demonstrate to us, is it not, that the Full Court of the Federal Court in some way misunderstood the effect of the decision in Kainhofer?

MR HODGMAN:   It is our respectful submission that they did.  It is further our respectful submission that the Full Court of the Federal Court was correct in Todhunter in saying that it was implicit that the documents be put before the section 19 magistrate. That, in fact, is what the magistrate himself said he needed to be persuaded of, and what his Honour Justice Heerey said. The Federal Republic does not dispute that it is implicit, and I refer to page 106 of the application book:

3.2 It is implicit in the conduct of s19 eligibility proceedings that the magistrate be able to satisfy himself that the person before the court is the subject of the request. He may be satisfied by means of a number of matters –

et cetera.  The Full Court of the Federal Court in the instant case said the magistrate was not concerned about identity and was not concerned about whether the treaty had been complied with.  Our respectful submission is that that is wrong.  The Full Court of the Federal Court said questions of identity would be dealt with by the section 15 magistrate – that is the one who deals with bail.  We respectfully submit that is a misunderstanding.  The bail magistrate does not make a determination of identity.

The Full Court of the Federal Court said that identity was not in issue.  With respect, that is wrong because when counsel appeared for Mr Parker before the magistrate to show cause why he should not be declared to be eligible for extradition, all issues including identity were put into dispute.  But your Honours, the more important matter is this:  the Full Court of the Federal Court, if it is right that the magistrate was not obliged to go into these matters, nevertheless said they were appropriate for his consideration, effectively saying the magistrate should ignore the fact that two documents were tendered in evidence by the Federal Republic of Germany which cast serious doubt about the identity of the person.

Now, I am jumping right away from context, but the passage in Aughterson to which we refer, we respectfully submit that the decision of the Full Court in the Federal Court overturns 120 years of tradition.  Extradition was unknown to the common law.  It is a creature of statute, and in relation to that Professor Aughterson in his book makes it very clear that the question of identity and compliance are in fact relevant, indeed crucial.  I refer to page 207 of the leading book “Extradition, Australian Law and Procedure” by Professor E.P. Aughterson, and the passage which follows:

The magistrate will also need to be satisfied as to identity: that the person appearing before the magistrate is the same person as named in the warrant, as it is only the person who is named in the warrant who is an extraditable person for the purposes of the Act.

It is my respectful submission that where the person whose extradition is sought is not able to dispute, deny or contradict the allegations that he or she has committed a crime in another country, that person is at least entitled to know that when the Parliament agreed, and the government entered into the treaty with the Federal Republic of Germany, it made it a requirement that all available documentation be provided – not just for the Attorney‑General to look at, but we respectfully submit for the court to look at.  The learned judges in the Full Court of the Federal Court effectively say these questions of identity will have been dealt with earlier.  It is hard to understand on what basis, the Attorney‑General not having seen the person in all probability.  Then they said it would be dealt with by the magistrate dealing with bail.  With great respect, the “I wasn’t there, I didn’t do it” argument is frequently raised in bail, but it is not then judicially determined.  The magistrate says, “We will deal with that later”.

We submit that the provisions of the treaty require the provision of all available information to keep the requesting country honest, so that they just did not send selectively what they wanted.  But the problem that the Full Court of the Federal Court decision has not attended to is this:  what happens when a magistrate becomes aware that there has been a breach of the provisions of the treaty; that available information which was in the possession of the Federal Republic, as proven by the fact that it was tendered by counsel for the Federal Republic, was not produced?  Todhunter says it is implicit it should be produced.  Professor Aughterson says it is a matter which has to be considered.

My respectful submission is this, that a person has little chance of fighting extradition on the merits.  The fact is you may be completely innocent but you can be taken from this country, according to the Full Court in the instant case, even when the Full Court says there were matters raised in relation to which it is clear there is an argument that his identity was in doubt.  His Honour Mr Justice Heerey, we respectfully submit, got it right.  With great respect, we submit that in relation to the Full Court the statement:

In our view, nothing in the Act or Treaty required the magistrate to consider the question whether “all available information, etc” had “accompanied” the request. Accordingly, although the magistrate did consider this matter he had no jurisdiction to do so. It follows that his finding in this regard was of no relevance to his inquiry and was not a matter which could be the subject of review by the learned primary judge -

Returning to your Honour the Chief Justice’s point, there is nothing in Kainhofer, in our respectful submission, which would justify the approach taken by the Full Court of the Federal Court in the instant case.  So, what is the situation?  You have the Full Court of the Federal Court in Todhunter saying it is implicit that all available information be put before the magistrate.  If it is implicit it be put before him, then we respectfully submit it is absolutely fundamental that he consider it.  The Full Court in the instant case is effectively saying it is none of his duty, none of his role at all.

In relation to that, I respectfully submit that the passage which appears on page 94, and that is in direct response to the matters raised by your Honour the Chief Justice - the passage which I wish to put before you is 3.1.3:

Although this Court undertook a detailed analysis of the requirements of the Act and of s 19 in particular in DPP (Cth) v Kainhoffer (1995) 185 CLR 528, the interpretation and effect of s 19(2)(b) did not fall to be decided.

Indeed, it was not decided.  There is nothing in Kainhofer, in my respectful submission, which would justify the Full Court taking the view that it took in the instant case.

Your Honours, we respectfully submit that the decision of Todhunter leads to the conclusion that it is the section 19 magistrate who must be satisfied that any documents which, in addition to the supporting documents, were required to accompany the extradition request have been produced to the court. To argue to the contrary is to say those other documents are only available to the Attorney‑General and must not under any circumstances be shown to the Australian citizen whose extradition is sought.

This Australian citizen, as the evidence shows, has been an Australian citizen since 1982.  One could hardly say he is a fugitive offender who has fled to Australia from another country to escape detection.  But, more importantly, as your Honours will see from the papers, and your Honours have obviously read them, he is alleged to be part of a gang which imported drugs from Thailand into Australia.  As the papers show, two persons in Australia have been charged in relation to this matter, convicted and sentenced.  This man has never been charged.  In relation to the dual criminality provision, how on earth could one say there is a dual criminality operation here when in fact he has not been subject to any charge in relation to any of these matters in this country; and the allegation is that the drugs were imported into Australia.

Your Honours, we respectfully submit in conclusion: (1) that identity is crucial. The section 19 magistrate must be satisfied that the person in relation to whom the request for extradition is made is one and the same person in respect for whom the warrant for arrest has been issued. (2) the section 19 magistrate must be satisfied that that person is in fact the same person who is in the court. Identity is crucial in extradition. (3) compliance with the treaty. We respectfully submit that the Australian negotiators got that provision in relation to all available information to ensure that there was not a selective delivery of information by the country seeking extradition.

To conclude, and going back to Cheng’s Case, and the passage cited with approval by the Full Court of the Federal Court in Schlieske v Federal Republic of Germany:

“A fugitive offender against the criminal law of a foreign state being thus protected by the common law from arrest for the purpose of extradition, the Extradition Act 1870 [Imp] and the Orders in Council implementing it were necessarily in derogation from the common law. It follows that the positive powers under the Act should be given a restrictive construction and the exceptions from those positive powers a liberal construction.”

Every magistrate in Australia now has a situation of the Full Court of the Federal Court in Todhunter saying one thing, another Federal Court in the case of Parker saying the opposite.  These are matters of enormous public importance, we submit, and we respectfully submit that leave should be granted.  If it please the Court.

GLEESON CJ:   Thank you.  Yes, Mr Solicitor.

MR BENNETT:   May it please the Court.  In relation to the argument based on Todhunter there is a difference between the wording of the treaty in that case and the wording of the treaty in the present case.

GUMMOW J:   That point is made in the written outline, is it not?

MR BENNETT:   Yes, it is, your Honour.

GUMMOW J:   At points 1.1, 1.2.

MR BENNETT:   Yes, it is, your Honour.  We submit that it is clear from Todhunter that the section 19 magistrate is not concerned with the issue of identity. That is assumed for the purpose of those proceedings. It is dealt with in the section 12 proceedings and it is dealt with in ‑ ‑ ‑

GUMMOW J:   How is it dealt with in the section 12 proceedings?

MR BENNETT:   Because in section 12 ‑ ‑ ‑

GUMMOW J:   Section 12(1) and (2).

MR BENNETT:   ‑ ‑ ‑the magistrate has to be satisfied:

that the person is an extraditable person -

So, “the person” is the person before the magistrate; “extraditable person” is defined by section 6 as a person in relation to whom there are warrants, and so on. The issue of whether the person is an extraditable person is before the section 12 magistrate, and, of course, is before the Attorney‑General. The section 19 inquiry is not a different issue.

GUMMOW J:   It is before the Attorney under 25, is it?  No, that is not the right section.

MR BENNETT:   Yes, it is section 16, I think, your Honour.  It is the first stage:

Where the Attorney‑General receives an extradition request –

And the Attorney‑General has to be:

of the opinion:

(i) that the person is an extraditable person –

That is section 16(2)(a)(i).

GUMMOW J:   Yes.

MR BENNETT:   As we have said, in Todhunter the section 19 inquiry is a limited inquiry. In relation to the ‑ ‑ ‑

GUMMOW J:   And this phrase “extraditable person”, does that appear in the section 19 process as such?

MR BENNETT:   No, your Honour, it is under section 19:

Where:

(a) a person is on remand…..

an application is made -

et cetera:

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender –

and that is determined under (2):

the supporting documents…..have been produced –

and the various other matters in subsection (2) are dealt with.  That is the structure of it.

GUMMOW J:   Yes.

MR BENNETT:   In relation to the documents may I also say this, that in Kainhofer the Court did not express a firm view.  It simply assumed the matter under the relevant treaty and it did not arise under this treaty.

I do not know if your Honours wish to hear me in relation to the matters that were not argued which are set out in the submissions; we have dealt with them fully in our submissions.  Unless there are any particular aspect, those are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Hodgman.

MR HODGMAN:   With great respect to the learned Solicitor, the point he has not adverted to, which I respectfully submit is clear - there is nothing in Kainhofer to support the action of the Full Court in the instant case in saying that it is not a matter upon which the magistrate has to make a determination.  They use curious words; it was appropriate for him to consider both the question of identity and compliance with the treaty.  My respectful submission is that Professor Aughterson is correct, and 123 years of authority are correct, that identity is crucial, and compliance with the treaty is crucial, particularly when the provision to which we refer is there for the protection of the Australian citizen or the person sought to be extradited.

It is true I did not argue in relation to dual criminality and I have not argued in relation to the question of particularity, but I do respectfully submit that if this honourable Court takes the view that these are not matters required, there is then virtually nothing that an Australian citizen can do to contest extradition. That effectively is the end result. If identity is not an issue and if compliance with the very treaty under which the extradition is sought, that treaty having more force and effect than the Act itself and becoming part of the domestic law of Australia by virtue of the external affairs power, where does the citizen turn?

This case is curious in one sense, that it was the Federal Republic of Germany which revealed to the magistrate the breach of the treaty by tendering the two documents out of three which said the identity of the person sought to be the extraditable person was in doubt.  Clearer evidence of non‑compliance with the treaty it would be hard to imagine.

In conclusion, your Honours will see there are some 25 other countries – and this is referred to on page 101 – which include the United States of America, the Hellenic Republic, Ireland, the Kingdom of Belgium, the Kingdom of the Netherlands – I do not read them all – where there are similar provisions, if not identical, to those in the existing treaty.  The point about the accompanying of the documents is to keep the requesting country honest.  Our respectful submission is these matters are of enormous importance.  It cannot be left with one Federal Court saying one thing, another saying another.  We respectfully submit that we have made out a case for leave to be granted.  If it please the Court.

GLEESON CJ:   We find ourselves unable to accept the submission that there is an inconsistency between the decision of the Federal Court in the case of Todhunter and the decision in the present case, bearing in mind the facts of Todhunter and the terms of the Treaty relevant in that case.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Full Court in the Federal Court to warrant the grant of special leave, and the application is refused.

MR BENNETT:   I seek an order for costs, your Honour.

GLEESON CJ:   Do you resist that, Mr Hodgman?

MR HODGMAN:   I do, your Honour, for the reasons set out in the submissions.

GLEESON CJ:   Thank you.

MR HODGMAN:   Do your Honours wish me to refer to them?

GLEESON CJ:   We have read those, thank you.

MR HODGMAN:   Thank you.

GLEESON CJ:   Is there anything you want to add, Mr Solicitor?

MR BENNETT:   Only this, your Honour, that I was always taught that the word “quasi” usually meant “non”, and this is an example of a case where it does.  These proceedings are not criminal proceedings, and orders for costs are frequently made in extradition proceedings, and there is no reason to depart from the normal rule.

GLEESON CJ:   Just remind me what happened in the Federal Court, the Full Court. 

MR BENNETT:   The order is at page 83, and the respondent was ordered to pay costs of the proceedings up to that point.

GLEESON CJ:   Thank you.  The applicant must pay the respondent’s costs of the application.

AT 10.00 AM THE MATTER WAS CONCLUDED