Todhunter v Attorney-General (Cth)

Jonathan Anthony Todhunter appealed against a decision of the St James Local Court to surrender him to the United States of America for extradition on various criminal charges. The Federal Court was tasked with determining several key legal issues, including whether the failure to release Todhunter within the stipulated 45-day period rendered the extradition proceedings null and void, the interpretation of the term 'accompany' in the context of the documents supporting an extradition request, and whether evidence could be considered that was not directly related to the offence for which extradition was sought. Additionally, the court examined the constitutionality of denying the extraditee the right to present evidence that they had not engaged in the conduct constituting the extradition offence and the admissibility of fresh evidence when the court is limited to considering only the material before the lower court.

The court ruled that the failure to release Todhunter within 45 days of assent to the extradition request did not render the proceedings null and void, as he was considered 'at liberty' while subject to bail conditions. It found that the term 'accompany' in the context of the extradition request documents did not have a temporal connotation that would limit the extent to which such documents could be submitted later. The court also determined that the bar on extradition when offences were statute-barred in the foreign state could be overcome by evidence of the suspension of the statute bar. Furthermore, the court held that hearsay could be considered in determining whether there were reasonable grounds to believe an offence had been committed and that the extraditee was responsible for it. The court found that denying the extraditee the right to adduce evidence regarding their conduct was unconstitutional, and that new evidence could be admitted when there was a deception of the lower court.

The court quashed the order that Todhunter be surrendered to the United States of America in relation to 23 offences and ordered his release from custody in respect of those offences. The court confirmed the order that Todhunter be surrendered in relation to two conspiracy offences and granted him leave to appeal against the orders. The court stayed the orders pending the outcome of the appeal and set bail conditions for Todhunter's release, which included surrendering his passport and remaining away from places from which aircraft or ships depart Australia for overseas. The court further ordered that Todhunter's bail be revoked unless his brother entered into a recognizance by a specified date and time.