Timar v Republic of Hungary - [2000] FCA 755

FEDERAL COURT OF AUSTRALIA
Timar v The Republic of Hungary [2000] FCA 755
EXTRADITION ‑ Eligibility for surrender ‑ Documents to be produced to magistrate ‑ Duly authenticated warrant of arrest ‑ Duly authenticated statement setting out description of offence and applicable penalty ‑ Duly authenticated statement setting out conduct constituting offence ‑ Whether conduct document must be self‑supporting ‑ Whether arrest warrant and statements can be read together ‑ Whether indictment can constitute conduct statement ‑ Minor deficiencies in documents ‑ Adjournment to enable remedy ‑ Treaty requiring additional document to accompany request for extradition ‑ Whether must be produced to magistrate.
Extradition Act 1988 ss 11(1), (6), 19
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 followed
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed
McDade v The United Kingdom [1999] FCA 1868 followed
De Bruyn v Republic of South Africa [1999] FCA 1344 followed
Transurban City Link Ltd v Allan (1999) 168 ALR 687 applied
Todhunter v Attorney‑General (Cth) (1994) 52 FCR 288 distinguished
United States of America v Holt (1994) 49 FCR 501 followed
Unkel v Director of Public Prosecutions (1990) 95 ALR 44 followed
Prabowo v Republic of Indonesia (1997) 74 CLR 599 followed
Papazoglou v Republic of the Phillippines (1997) 74 FCR 108 followed
Federal Republic of Germany v Parker (1998) 84 FCR 323 followed
LASZLO PEREGRIN TIMAR v THE REPUBLIC OF HUNGARY and THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
V 616 OF 1999
SUNDBERG, EMMETT and HELY JJ
7 JUNE 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 616 OF 1999

BETWEEN:

LASZLO PEREGRIN TIMAR
APPELLANT

AND:

THE REPUBLIC OF HUNGARY and
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

JUDGES:

SUNDBERG, EMMETT and HELY JJ

DATE OF ORDER:

7 JUNE 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondents’ costs of the appeal.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 616 OF 1999

BETWEEN:

LASZLO PEREGRIN TIMAR
APPELLANT

AND:

THE REPUBLIC OF HUNGARY
and
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

JUDGES:

SUNDBERG, EMMETT and HELY JJ

DATE:

7 JUNE 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

The appellant was born in Hungary in 1942. He came to Australia in 1995 and became an Australian citizen in 1997. He resides in Melbourne with his wife and adult son. On 22 April 1999 a magistrate determined pursuant to s 19(9) of the Extradition Act 1988 (“the Act”) that the appellant was eligible for surrender to the Republic of Hungary in relation to an extradition offence described as “fraud causing considerable prejudice” contrary to s 318(1) of the Criminal Code of Hungary (“the Code”). The appellant challenged the magistrate’s decision pursuant to s 21(2)(b) of the Act on various grounds. The challenge was dismissed by Weinberg J. The appeal is from his Honour’s decision.
BACKGROUND TO…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 755
Decision Date: 7 JUNE 2000

CaseChat Overview and Summary

The case of Timar v Republic of Hungary involved the appellant, who was an Australian citizen born in Hungary, contesting a magistrate's decision to surrender him to Hungary for an alleged extradition offence. The offence in question was described as "fraud causing considerable prejudice" under Hungarian law. The appellant argued that the magistrate had erred in his decision to allow the surrender, and this decision was subsequently dismissed by Weinberg J. The appellant appealed this decision, raising several issues regarding the sufficiency of the documents provided to the magistrate and whether the magistrate had correctly interpreted the relevant legislation and treaty provisions.

The central legal issues in this appeal were whether the documents provided to the magistrate were sufficient under the Extradition Act 1988 and the relevant extradition treaty, and whether the magistrate's decision to allow the surrender was correct. Specifically, the appellant argued that the documents did not comply with the requirements of the Act and the treaty, and that the magistrate had incorrectly allowed the surrender despite these deficiencies. The court had to determine whether the magistrate's decision was legally sound and whether the appellant's arguments had merit.

The court held that the magistrate's decision was correct and dismissed the appeal. The court found that the documents provided to the magistrate were sufficient under the Act and the treaty, and that the magistrate had not erred in his interpretation of the law. The court also rejected the appellant's arguments regarding the sufficiency of the documents and the magistrate's decision to allow the surrender. The court concluded that the magistrate's decision was legally sound and that the appeal should be dismissed.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal. This decision upheld the magistrate's decision and confirmed that the appellant should be surrendered to Hungary for the alleged extradition offence.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

The appellant was born in Hungary in 1942. He came to Australia in 1995 and became an Australian citizen in 1997. He resides in Melbourne with his wife and adult son. On 22 April 1999 a magistrate determined pursuant to s 19(9) of the Extradition Act 1988 (“the Act”) that the appellant was eligible for surrender to the Republic of Hungary in relation to an extradition offence described as “fraud causing considerable prejudice” contrary to s 318(1) of the Criminal Code of Hungary (“the Code”). The appellant challenged the magistrate’s decision pursuant to s 21(2)(b) of the Act on various grounds. The challenge was dismissed by Weinberg J. The appeal is from his Honour’s decision.BACKGROUND TO EXTRADITION PROCEEDINGS On 27 October 1992 a holiday house in Hungary jointly owned by the appellant’s wife and father‑in‑law was destroyed by fire. An insurance claim was made and the insurer paid out on the claim. On 1 February 1995 the District Chief Prosecutor of Pest signed a bill of indictment No 49/1994. The indictment accused the appellant and five others of being responsible for the fire. It alleged that the appellant had been in financial difficulties throughout 1992, and that he had persuaded his wife to sell her interest in the house to overcome those difficulties. The prospective purchaser wanted to buy the land only. However the father‑in‑law refused to consider the demolition of the house. The property could not therefore be sold to the interested purchaser. It was then alleged that the appellant had arranged with the other accused to set fire to the building. He was said to have paid them an advance of 20,000 Hungarian Forints (“HUF”) and to have promised an additional HUF400,000 when the job was done. The appellant and his relatives lodged a claim for compensation with the insurer which paid out the sum of HUF2,007,713 (approximately A$35,000). Half of that sum was paid to the father‑in‑law. The other half was used to clear the amount owing to a mortgagee of the property. On 28 May 1997 a warrant was issued for the appellant’s arrest. The warrant referred to the indictment and repeated a number of the allegations in it, though in considerably less detail. It accused the appellant of having committed “the crime of fraud causing considerable prejudice” in contravention of s 318 of the Code. It described the offence and the punishment for the offence as follows:“Criminal Code, Section 318, subsection (1): Whoever, for procuring an unlawful lucre, induces or keeps another person in error and produces a prejudice thereby, commits fraud.Subsection (5), item a: Punishment is deprivation of liberty from one year to five years where the fraud produces significant prejudice.” On 9 December 1998 the Commonwealth Attorney‑General issued a notice under s 16(1) of the Act. The notice was issued in relation to an extradition request received from the Republic of Hungary dated 15 April 1998. The Attorney‑General certified that he was of the opinion that the appellant was an extraditable person for the purposes of the Act in relation to Hungary. He also certified that had the conduct for which the appellant’s surrender was sought occurred in Australia, it would have constituted an extradition offence in relation to Australia, and that there was no extradition objection in relation to his surrender.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Article 5 par 2 of the Treaty provides that the request for extradition shall be accompanied:“(a)if the person is accused of an offence, by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;…(e)… by the text of the relevant provision of the law, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case, a statement of the punishment that can be imposed for the offence ….”THE PRIMARY JUDGE’S DECISION Before Weinberg J the magistrate’s decision was challenged on three grounds. The first was that not all the “supporting documents” required by s 19(2)(a) to be produced to the magistrate had been produced. It was said that the Republic had failed to produce a duly authenticated statement in writing setting out the description of, and the penalty applicable in respect of, the offence, as required by s 19(3)(c)(i), or a duly authenticated statement in writing setting out the conduct constituting the offence, as required by s 19(3)(c)(ii). The second ground of challenge was that additional “supporting documents” which, pursuant to s 11(6) and Art 5 par 2 of the Treaty, were required to be produced to the magistrate, had not been produced. This was a reference to a statement relating to the “limitation of proceedings” mentioned in Art 5 par 2 but not in s 19(3). The third ground was that the magistrate had erred in finding that the deficiencies he had identified in the first “Certificate” were of a minor nature, and that the Republic should not have been granted an adjournment in order to remedy those deficiencies. Weinberg J rejected all three grounds.APPELLANT’S CONTENTIONS ON APPEAL Senior counsel for the appellant handed the Court a document that listed the six issues that he said were raised by the appeal. They were1.Whether there is a statement setting out the conduct constituting the offence.2.Whether the conduct constituting the offence in the extradition country, or that equivalent conduct, would constitute an extraditable offence in Victoria.3.Whether the court is entitled to look at both the warrant and the bill of indictment for the purposes of s 19(3)(c)(ii).4.Whether the documents required to be produced under the Treaty have been produced.5.Whether the documents produced satisfy s 19(3)(c)(i).6.Whether an adjournment should have been granted under s 19(4)(b).The second so‑called issue had not been raised before the magistrate, was not a ground of review before the primary judge, was not on the judge’s list of the matters he identified as in issue before him, and was not referred to in his judgment. In those circumstances we declined to hear argument on the point.Can the warrant and indictment be looked at together?

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 616 OF 1999

BETWEEN:	LASZLO PEREGRIN TIMAR APPELLANT
AND:	THE REPUBLIC OF HUNGARY and THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS

JUDGES:	SUNDBERG, EMMETT and HELY JJ
DATE OF ORDER:	7 JUNE 2000
WHERE MADE:	MELBOURNE

JUDGES:	SUNDBERG, EMMETT and HELY JJ
DATE:	7 JUNE 2000
PLACE:	MELBOURNE