Rosario v Republic of Argentina

Case •

[2005] FCA 1764

•

12 OCTOBER 2005

-FEDERAL COURT OF AUSTRALIA

Rosario v Republic of Argentina [2005] FCA 1764

STEVEN MICHAEL ROSARIO v REPUBLIC OF ARGENTINA & ANOR

NSD956 OF 2005

EMMETT J

12 OCTOBER 2005

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD956 OF 2005

BETWEEN:

STEVEN MICHAEL ROSARIO
APPLICANT

AND:

REPUBLIC OF ARGENTINA
FIRST RESPONDENT

DEBORAH ANN SWEENEY
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

12 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the first respondent’s costs. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD956 OF 2005

BETWEEN:

STEVEN MICHAEL ROSARIO
APPLICANT

AND:

REPUBLIC OF ARGENTINA
FIRST RESPONDENT

DEBORAH ANN SWEENEY
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

12 OCTOBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Before the Court is an application under s 21(1) of the Extradition Act 1988 (Cth) (‘the Act’). Section 21(1) relevantly provides that, where a magistrate of a State makes an order under section 19(9) of the Act, in relation to a person whose surrender is sought by an extradition country, the person may apply to the Federal Court for review of the order. To explain the context in which the relevant issues have been raised, it is desirable to say something about the structure of the Act.

    THE EXTRADITION ACT

  2. Section 3 of the Act states that its principal objects are to codify the law relating to the extradition of persons from Australia to extradition countries 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.  Another principal object is to facilitate the making of requests for extradition by Australia to other countries and to enable Australia to carry out its obligations under extradition treaties. 

  3. Under s 5, ‘extradition country’ means any country that is declared by the regulations to be an extradition country. The first respondent, The Republic of Argentina, is an extradition country. In s 5 of the Act, the term ‘extradition offence’ is defined as meaning, in relation to a country other than Australia, an offence against the 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 and in relation to Australia an offence against the law of Australia or a law in force in a relevant part of Australia for which the maximum penalty is death or imprisonment or other deprivation of liberty for a period of not less than 12 months.

  4. Under s 12(1) of the Act, where an application is made on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person, and the magistrate is satisfied that the person is an extraditable person in relation to the extradition country, the magistrate must issue a warrant for the arrest of the person. Section 15(1) provides that a person who is arrested under a provisional arrest warrant that is a warrant issued under s 12 must be brought as soon as practicable before a magistrate in the State in which the person is arrested. Section 15(2) then provides that the person shall be remanded by a magistrate in custody or on bail, for such period or periods as may be necessary for proceedings under s 19 is to be conducted.

  5. Section 16(1) of the Act provides that, where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, by notice to any magistrate, state that the request has been received. Under s 16(3), as soon as practicable after the person is remanded under section 15 or such notice is issued, whichever is the later, a copy of the notice and copies of the documents referred to in section 19(2)(a) must be given to the person.

  6. Section 19(1) relevantly provides that, where a person is on remand under s 15 and certain other prerequisites are satisfied, the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country.  It is common ground that the prerequisites referred to in s 19(1) have been satisfied in the present case.

  7. Section 19(2)(a) relevantly provides that a person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country if the supporting documents in relation to the offence have been produced to the magistrate.  Section 19(3) relevantly defines the term ‘supporting documents’, when that term is used in s 19(2)(a), in relation to an extradition offence, as meaning:

    ‘(a)…a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence…

    …

    (c)…

    (ii)A duly authenticated statement in writing setting out the conduct constituting the offence.’

    There are other documents within the term, but they are not presently relevant.

  8. Section 19(9) of the Act provides that where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence the magistrate must, by warrant, order that the person be committed to prison to await surrender under a surrender warrant or released pursuant to an order under section 22(5). Section 19(9)(c) provides that the magistrate must record in writing the extradition offence, 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.

  9. Section 21(2) of the Act provides that, upon a review, the Court may confirm the order of the magistrate or quash the order and give directions to the magistrate. Under s 21(6), where the person whose surrender is sought by an extradition country applies for review, the court to which the application is made must have regard only to the material that was before the magistrate.

    PROCEEDINGS IN THE LOCAL COURT IN RESPECT OF THE APPLICANT

  10. On 31 August 2004, the Minister for Justice and Customs signed a notice of receipt of extradition request in relation to the applicant. The extradition offence referred to in the request was participating in the attempted import smuggling of an illegal drug, contrary to the Argentine, Customs Code. On 3 February 2005, a magistrate of the Local Court of New South Wales (‘the Magistrate’) signed a warrant for arrest of the applicant under s 12(1) of the Act.

  11. Following the arrest of the applicant, the Magistrate conducted a proceeding to determine whether the applicant is eligible for surrender in relation to the extradition offence for which surrender of him is sought by Argentina. On 3 June 2005, the Magistrate signed a record, pursuant to s 19(9)(c), that she had determined that the applicant is eligible for surrender to the Argentine Republic in relation to the extradition offence of participating in the attempted import smuggling of an illegal drug. By application filed in this Court on 15 June 2005, the applicant seeks review, pursuant to s 21 of the Act, of the Magistrate’s decision.

    GROUNDS OF REVIEW

  12. The grounds of review are two and may be shortly stated. They both relate to the requirements of s 19(2)(a) of the Act, that the supporting documents in relation to the offence have been produced to the Magistrate. The applicant contends, first, that the supporting documents did not satisfy s 19(3)(a) and, secondly, that they did not satisfy s 19(3)(c)(ii). Each ground will be dealt with separately.

    SECTION 19(3)(A)

  13. The first ground concerns the phrase ‘for the arrest of the person for the offence’ in s 19(3)(a).  The requirement of s 19(3)(a) in the present case is for the production of a warrant issued by Argentina for the arrest of the applicant for the offence.  The applicant contends that a warrant will not satisfy that requirement unless it states, on its face, the name of the offence for the arrest for which the warrant was issued.  Argentina disputes that that is a requirement of s 19(3)(a) but says that, in any event, if it is a requirement, it was satisfied in the present case. 

  14. The material before the Magistrate included a translation from Spanish into English of the document, which is dated 10 April 2000, that is said to constitute the warrant within the meaning of s 19(3)(a) (‘the Warrant’).  The translation is less than totally satisfactory.  However, its meaning can be gleaned despite the English of the translation being quite unidiomatic.  The relevant parts of the translation are in the following terms:

    ‘1.It is hereby investigated the alleged connection among Australian nationals in the import smuggling attempt of drugs into the country in which Patrick Nalendra Kyle might have been involved as perpetrator on December 18th, 1998.  In that opportunity, police officers from… [Dangerous Drugs Department Narcotrafic Division and General Inspection at the Public Income Federal Administration] arrested the above mentioned subject and seized the narcotic substance at Ezeiza International Airport in Buenos Aires.  [The prosecutor] of the case, provisionally classified this act according to sections 863 and 866… of the Argentine Customs Code.

    2.Please find the certified copy of Patrick Nalendra Kyle's elaborated statement in which several persons, full particulars, addresses and physical descriptions are therein mentioned as well as possible co-perpetrators of the offense he is charged with. [No such copy was before the Magistrate]

    3.[The prosecutor] petitions the international arrest of [the applicant and several other individuals]...  This court decided to deny said request.  The decision was appealed by the Public Prosecution Office and partially revoked by the Court of Appeals as regards [the applicant].

    ‘4.Therefore,… I shall order [the applicant’s] arrest at the national and international level pursuant to the decision taken by the competent Court of Appeals within the framework of these proceedings.  This is done by virtue of the elements added… and Kyle's own statements pursuant to section 294 of the Criminal Procedural Code.  The elements foreseen in section 294 of the Criminal Procedural Code having been gathered and pursuant to the provisional legal classification of the events in question (sections 863 and 866 of Act 22.415) it is hereby ordered [the applicant’s] arrest by virtue of the dispositions foreseen in section 283… together with section 282 of the Criminal Procedural Code.  In view of the foregoing I hereby resolve:

    (i)To order [the applicant] whose full particulars are mentioned… for him to make a statement in accordance with section 294 of the Criminal Procedural Code for his alleged participation in the facts under investigation (section 282, 283 and 294 of the Criminal Procedural Code).  In order to give compliance to the foregoing it is hereby ordered that official letters be issued addressed to the Federal Police, the Minister of the Interior and Interpol.  Please note that should the subject in question be arrested, he shall be at the disposition of the Court in solitary confinement pursuant to the provisions foreseen in sections 26 and 41 of the Criminal Procedural code,

    (ii)To forward these proceedings to the Prosecution Office in accordance with the dispositions in section 196 of the Criminal Procedural Code.’

  15. Included in the papers before the Magistrate was a translation of ss 863 and 866 of the Argentine Customs Code, relevantly providing as follows:

    ‘863:Anyone who, by means of any act or omission, obstructs or hampers through any trick or artifice the correct functions established by law to the custom service for the importation and exportation control, shall be punished with 6 months to 8 years imprisonment. 

    866:A penalty of imprisonment from 3 to 12 years shall be applied in any of the cases established in Sections 863 and 864, when the relevant goods are illegal drugs, whatever their stage of manufacturing is.’

  16. The applicant contends that there must, in some way, be a statement, on the face of a warrant, of the name of the offence.  The applicant asserts that the Warrant does not disclose, on its face, the offence for the arrest for which the Warrant was issued.  He says that it is not sufficient to establish, by extrinsic or extraneous material, the offence for which a warrant was in fact issued.  He concedes, however, that, if it is sufficient to demonstrate, by extrinsic or extraneous materia, the offence for which the Warrant was issued, there was material before the Magistrate sufficient and adequate to do so.

  17. The Act should be construed according to ordinary language, rather than by giving narrow, technical meanings tied to local laws. The construction of the Act should promote its objects and should be based on the ordinary meaning of words used in their context, having regard to that purpose.

  18. A warrant might be described as a document, a writ or an order issued by a superior authority, empowering an individual to carry out some action that would otherwise be unlawful.  It is not suggested that the Warrant, as described, is not a warrant within the meaning of s 19(3)(a), except insofar as it is alleged or asserted that the Warrant does not, on its face, name an offence.

  19. There is no reason, based on the language of s 19(3)(a), why it should not be open to Argentina, if it was necessary, to prove the linkage between the Warrant and an extradition offence for which the extradition of the applicant is sought, by the provision of evidence to that effect.  Section 19(3)(a) does not require that a warrant specify an offence on its face.  To impose such a requirement could well render nugatory, for extradition purposes, warrants that are quite unexceptionable in the extradition country and which reflect normal practice in that country.

  20. The purpose of s 19(3)(a) is not to give particulars of an offence, but to establish that an order, writ or other document has been issued by someone in authority in the extradition country that requires the arrest of the person whose extradited is sought.  So long as that warrant was in fact issued for the arrest of the person, and was issued for the offence in respect of which extradition is sought, that, according to the ordinary meaning of s 19(3)(a), would be sufficient (see Dutton v O’Shane 132 FCR 352). There is no substance in the contention that the Warrant does not satisfy the prerequisite of s 19(3)(a).

  21. In any event, there is a strong argument for concluding that, even if the construction of s 19(3)(a) contended for by the applicant is correct, the Warrant would in any event satisfy that definition.  It is clear enough that the Warrant seeks the arrest of the applicant for offences under ss 863 and 866 of the Argentine Customs Code.  It was not suggested that the terms of those sections, or a detailed description of the offence, needs to be set out in the warrant. 

  22. Sections 863 and 866 appear in a chapter of the Argentine Customs Code, the title of which is ‘Contrabando’, an English translation for which might be ‘smuggling’.  It is clear enough, therefore, that the warrant discloses that the offence, for which the applicant is to be arrested under the warrant, is the offence of smuggling illegal drugs into Argentina.  The first ground, upon which the decision of the Magistrate is impugned, must fail. 

    SECTION 19(3)(C)

  23. The second ground relates to the requirement that there be produced to the magistrate a duly authenticated statement in writing, setting out the conduct constituting the offence.  Before the Magistrate, there was a document addressed to:

    ‘The competent Judge in criminal matters having jurisdiction over smuggling cases in Sydney City, Australia.’

    That document relevantly provided as follows:

    ‘The case number 9336 entitled… separate proceedings concerning case 9336 Kyle Patrick Nalendra drug smuggling is pending before this National Court of First Instance in Criminal and Economic Matters no 8 over which I preside…

    1.Today it has been ordered that an international letters rogatory be issued and addressed to the competent judicial authorities in Australia so as to formally request [the applicant’s] extradition once more.

    (a)       …

    (b)This request is based on section 9(2) of the Extradition Treaty subscribed to between the governments of both Argentina and Australia in Buenos Aires on October 6th, 1988.  Said Treaty was ratified by Act No 23.729 and is still in force in our country.

    (c)This request is well founded by virtue of the commitment arising from section 2 and since the maximum penalty applicable to the offence, (12 years)… under section 863, 866… exceeds the terms stipulated by said section 2. Likewise this request does not fall within the provisions foreseen in the subsections of section 3 of the mentioned Treaty.

    …

    [The applicant’s] extradition is requested by virtue of an arrest warrant… issued on April 10, 2000 by this Court.  This decision was taken pursuant to the resolution adopted by the Court of Appeals by virtue of a suspicion falling within the scope of section 294 of the Criminal Procedure Code about that the subject might have participated in the import smuggling attempt of drugs into the country perpetrated by Patrick Nalendra Kyle. 

    This event took place on December 18, 1988, date on which the drug was seized and Patrick Nalendra Kyle was arrested by… [Dangerous Drugs Department Narcotrafic Division] and… [General Inspection of the Public Income Federal Administration] at Ezeiza International Airport in Buenos Aires. 

    After [the applicant’s] arrest for participating in the drug smuggling attempt import into our country, an offense [sic] which was perpetrated by Patrick Nalendra Kyle on December 18, 1988 the mentioned [applicant] will be questioned by this Court pursuant to the dispositions set forth in section 294 of the Criminal Procedure Code.

    …

    Within the following 10 days after [the applicant’s] questioning this Court will have to determine the subject's procedural status…   In order to prosecute [the applicant] for participating in the drug smuggling attempt (import) perpetrated by Kyle, he must put an initial appearance before me…

    …

    On April 10th, 2000, this Court issued an arrest warrant against [the applicant] for being considered a person who might have participated in the drug smuggling attempt (import) of 4,660 grams of cocaine in this country offense [sic] which was perpetrated by Patrick Nalendra Kyle. [The applicant] is charged in pursuance with sections 863, 866 and 871 of the Customs Code...  On December 18, 1988, Patrick Nalendra Kyle was arrested at Ezeiza International Airport in Buenos Aires, carrying 4,660 grams of cocaine.  [The applicant] approached Patrick Nalendra Kyle in Sydney, Australia, and hired him to take the narcotic substance - cocaine - from Ecuador to Australia, through Argentina. [The applicant] organised Kyle's itinerary and paid for his air tickets through the travel agency styled ‘National World Travel’ in Sydney, Australia.  When [the applicant] was negotiating with National World Travel he used the alias "Steve".  He also chose the places and hotels in which Kyle was to stay. 

    Before Kyle's departure from Australia [the applicant] gave him $US2,000 in cash.  Further, he provided Kyle with several telephone numbers and directed him when and from where he was supposed to phone those numbers.  Firstly, Kyle left Sydney and travelled to New York where he stayed at the Holiday Inn Hotel.  [The applicant] had told Kyle to call [the applicant’s] girlfriend.  Kyle called her from his room. 

    Afterwards Kyle travelled to Quito, Ecuador, and he stayed at a hotel where he was supposed to meet a person - who never showed up - according to [the applicant’s] orders.  Then Kyle called [the applicant] from a pay phone to [a number specified].  During that conversation [the applicant] told him to wait at the hotel since the contact person had not yet arrived from Venezuela.  During that period, [the applicant] sent several remittances to Kyle through the firm Western Union.  Due to the delay of the Venezuelan contact, [the applicant] had to plan Kyle's itinerary once more.  Then, [the applicant] sent a copy of the new itinerary to Kyle.  The contact arrived in Quito during the second week after Kyle’s arrival in Ecuador.

    After Kyle collected the cocaine from the contact in Quito as [the applicant] had planned it, he left Ecuador on December 16, 1998 and travelled to Lima, Peru where his luggage got left behind, but he continued his trip towards Buenos Aires - Argentina - where he waited for his luggage to arrive.  In Buenos Aires he stayed at the Gran Via Hotel.  The drugs were hidden inside the lining of two jackets which were put inside his luggage in Ecuador.  Kyle was arrested when he picked up his suitcase when tried to cross the customs section in Argentina.  The delay in the arrival of his luggage prevented him from continuing his trip towards Auckland, since Kyle was in transit in this country.  [The applicant] was supposed to pay Kyle between $AUS35,000 and $AUS40,000 for his involvement in the drug smuggling.

    The law enforcement agents who participated in Kyle’s arrest in our country also seized a fax from National World Travel which contains the modified itinerary Kyle was supposed to follow at first.  [The applicant] had sent this fax to Kyle while he was staying in Ecuador.  Likewise, on December 16, 1988 [the applicant] sent remittances to Kyle as well as to other people to Quito, Ecuador.  …the telephone numbers provided by Kyle within the framework of this process are related to each other.  …one of those telephone numbers was registered to the name of [the applicant’s partner].  One of the telephone numbers belonged to [another person] who is also believed to be [the applicant’s] partner...  [The applicant] intended to obtain a reimbursement using the alias ‘Steve’.’

  1. The complaint about that narrative are that it contains some conclusionary statements, is unspecific about some times and is unspecific about some amounts.  Thus, for example, the narrative says that the applicant approached Kyle in Sydney and hired him, without specifying the basic facts that give rise to those conclusions.  Secondly, it is not specified when that approach and hiring took place.  Third, it is not stated when Kyle left Sydney and travelled to New York.  Finally, it is not specified when the applicant sent remittances to Kyle and how much those remittances were.

  2. A statement setting out the conduct constituting an offence for the purposes of s 19(3)(c)(ii) may consist of a number of documents.  The section requires a statement of the acts or omissions, by virtue of which the offence has or is alleged to have been committed.  A bare description or definition of the offence will, therefore, not suffice.  The conduct, by virtue of which an offence has been or is alleged to have been committed, must be specified at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.

  3. The statement must speak with sufficient specificity, clarity and coherence to serve its purpose.  The statement serves a dual purpose.  First, the facts relevant to the extradition offence are proved by that statement.  Secondly, because a magistrate making the eligibility determination is confined to the material adduced in the supporting document, the statement must be such as to permit the magistrate to be satisfied that the conduct said to constitute the offence would constitute an extradition offence, had it taken place in that part of Australia where the proceedings are being conducted (see Griffiths v United States of America (2005) 214 ALR 665 at [50] to [53]).

  4. The statement clearly falls short of the evidence required to prove the relevant conduct.  On the other hand, it clearly goes beyond a bare or formal statement of the elements of the offence involved. I do not consider that there is any substance in the applicant’s complaint that the statement does not satisfy the requirements of s 19(3)(c)(ii) simply because it contains some conclusionary statements and lacks some particularity in the respects to which I have referred.  It contains sufficient specific detail to enable the facts relevant to the extradition offence to be proved.  Further, it also contains sufficient specific detail for a magistrate to be able to determine whether or not the facts would constitute an offence in Australia.  The applicant did not suggest that the statement was inadequate for that purpose.   I am not persuaded that the statement is deficient in any way.  I am satisfied therefore that the requirements of s 19(3)(c)(ii) were satisfied by the documents before the Magistrate. 

    CONCLUSION

  5. It follows, in my opinion, that the Court should confirm the order made by the Magistrate.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            7 December 2005

Counsel for the Applicant: Dr David Chaikin
Solicitor for the Applicant: Turnbull Hill Lawyers
Counsel for the First Respondent: PE McDonald
Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions
Date of Hearing: 12 October 2005
Date of Judgment: 12 October 2005
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Cases Cited

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Truong v The Queen [2004] HCA 10
Griffiths v United States of America [2005] FCAFC 34