FEDERAL COURT OF AUSTRALIA

Hellenic Republic v Tzatzimakis [2003] FCAFC 4

EXTRADITION – eligibility for surrender – requirement to produce supporting documents - meaning of s 10(1) of the Extradition Act 1998 (Cth) – whether on the facts of the case respondent convicted in his absence

WORDS & PHRASES – “convicted in the person’s absence”

Extradition Act 1998 (Cth) ss 10(1), s 11, 19(1), 19(2), 19(3), 55

Extradition (Foreign States) Act 1966 (Cth) s 4(3)

Extradition (Foreign States) Amendment Act 1985 (Cth)

Extradition (Commonwealth Countries) Act 1966 (Cth)

Extradition (Commonwealth Countries) Regulations 1998(Cth)

Wiest v Director of Public Prosecutions (1988) 23 FCR 472, considered

R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498, considered

In re Coppin (1866) 2 Ch App 47, considered

R v Jones [2002] 2 All ER 113, considered

HELLENIC REPUBLIC V GEORGIOS TZATZIMAKIS AND FRANK JONES

V 209 OF 2002

BLACK CJ, HILL & FINKELSTEIN JJ

31 JANUARY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

2.                  The order of Ryan J of 18 April 2002 ordering the arrest of the first respondent be discharged.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BLACK CJ:

1                     This is an appeal by the Hellenic Republic from a judgment of a judge of this Court dismissing with costs an application by the Hellenic Republic for a review of the determination of Frank Jones, a Magistrate of the State of Victoria, that Georgios Tzatzimakis, the first respondent to this appeal, is not eligible for surrender to it in relation to various extradition offences.

2                     The appeal turns upon the construction of the expression “convicted in the person’s absence” in s 10(1) of the Extradition Act 1988 (Cth) (“the Act”), which provides:

“Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.”

3                     The facts, the historical background to s 10(1), and the way in which the principle issue in the appeal arises, are set out in the reasons for judgment of Finkelstein J, which I have had the advantage of reading in draft. Finkelstein J sets out at [67] the circumstances under which Mr Tzatzimakis was convicted and sentenced to some 16 years imprisonment without him being present at his trial.

4                     Section 19(2)(a) of the Act provides that for the purposes of s 19(1) a person is only eligible for surrender in relation to an extradition offence if “the supporting documents” in relation to the offence have been produced to the Magistrate, and s 19(3) defines “supporting documents” in a way that differs according to whether the offence in question is one of which “the person is accused” (s 19(3)(a)) or is one of which “the person has been convicted” (s 19(3)(b)). Where the offence is one of which the person is accused the supporting documents include “a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant”.

5                     It is, and was before the primary judge, common ground that the Hellenic Republic did not produce to the Magistrate a warrant or copy warrant for the arrest of the first respondent and that if the offences for which Mr Tzatzimakis was sought were offences of which he was “accused” within the meaning of s 19(3)(a) rather than offences of which he had been “convicted”, there was a fatal deficiency in the material placed before the Magistrate, a person being “only eligible for surrender” if the “supporting documents” have been produced to the Magistrate: s 19(2)(a).

6                     The primary judge concluded that s 10(1) should be construed in accordance with the ordinary use of language such that a conviction in a person’s absence “means a conviction obtained when the accused was not present for whatever reason”, including, therefore, voluntary absence: see Hellenic Republic v Tzatzimakis [2002] FCA 340 at [83]. He declined to follow the views of Gummow J, with whom Sheppard J agreed, in Wiest v Director of Public Prosecutions (1988) 23 FCR 472.

7                     On the hearing of the appeal, senior counsel for the Hellenic Republic accepted that the views of Gummow and Sheppard JJ in Wiest about the meaning of “convicted in a person’s absence” are properly to be regarded as obiter dicta, but submitted that they should have been followed by the primary judge and were correct. Accordingly, since Mr Tzatzimakis was absent in circumstances amounting, it was submitted, to a voluntary waiver of his right to be present, he was not “convicted in his absence” within the meaning of s 10(1). Moreover, she submitted, the “ordinary meaning approach” adopted by the primary judge was likely to lead to absurd consequences such as could not have been intended by the Parliament.

8                     If the construction of s 10(1) were simply a matter of considering ordinary English usage I would conclude that Mr Tzatzimakis was indeed convicted in his absence. He was not present at the hearing that led to his conviction, he was not represented at the hearing, he was not present when the conviction was pronounced or when the sentence was imposed. The minutes and judgment of the hearing, record him as “absent”. Section 10(1) does not qualify the expression by reference to any reason for the person’s absence and, as a matter of usage, the concept of absence, even when linked to the concept of conviction does not, in my view, carry with it any necessary element of a reason for the absence. We may put to one side whether a person who is represented throughout a trial that results in his conviction, is in fact “convicted in his absence”. We may also put to one side the case, suggested in argument, of a person who absconds after all the evidence is in, but before conviction. These questions do not arise in the present case.

9                     It is of course necessary, however, to examine s 10(1) in the light of its history, its context and its evident purpose.

10                  The history of the legislation is discussed in detail in the reasons for judgment of Finkelstein J, and it is also outlined in the reasons for judgment of the learned primary judge. Most significantly, in this instance, s 4(3) of the Extradition (Foreign States) Act 1966 (Cth) – the predecessor of s 10(1) of the present Act - was amended by the Extradition (Foreign States) Amendment Act 1985 (Cth) such that a person was deemed to be accused of an offence where that person was convicted in his absence of that offence, irrespective of the finality of the conviction. In my view, what emerges from the history is that the nature and effect of the 1985 amendment was to vary s 4(3) so substantially in its effect as to isolate the section from its earlier history. From 1966 until 1985, the operation of Australian extradition legislation in cases where a person whose extradition was sought had been convicted in his absence had turned upon distinctions between a conviction for contumacy (the term used in the 1966 Act before its amendment in 1973) such as a conviction par contumace under French law, and a judgment par défaut when not confirmed by a judgment itératif défaut, and what were final convictions, such as the French judgment itératif défaut. In the former cases, a person convicted in his absence was to be treated as a person accused, but in the latter case, he was treated for extradition purposes as a person convicted. The reasons for the distinctions are explained in the cases referred to by Finkelstein J and by the primary judge. In part they related to the form of the early English legislation but in larger part, and in more recent times, they relate to the essential distinction between a foreign conviction that is final and one that is not. That distinction was entirely done away with by the 1985 amendment, in language of wide ambit.

11                  Moreover, the considerations of comity by which the finality of a foreign conviction was recognised as such were to that extent put aside, so that where a person had been convicted in their absence, what was regarded as a final conviction by the law of the foreign state was to be regarded for the purposes of the Act as not a conviction at all.

12                  Section 10(1) represented a further break with the pre-1985 past in that it was enacted as part of a codifying and consolidating Act that embodied new approaches to extradition in Australia. The principle objects of the 1988 Act, as set out in s 3, are:

“(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."

13                  The 1988 Act also represented a departure from the previous approach in Australia, in that it consolidated Australia’s extradition laws so that they now covered, in one statute, the fields previously dealt with by the Extradition (Commonwealth Countries) Act 1966 (Cth) and the Extradition (Foreign States) Act 1966 (Cth). In furtherance of its object of enabling Australia to carry out its obligations under extradition treaties, the 1988 Act provides, by s 11, that the regulations made under the Act (see s 55) may state that the Act applies in relation to a specified extradition country, subject (inter alia) to such limitations, conditions, exceptions or qualifications as necessary to give effect to a bilateral extradition treaty in relation to the country.

14                  Because of the fundamental nature of the change effected by the 1985 amendment to s 4(3) of the 1966 Act, I do not accept the submission that the history of s 10(1) of the present Act requires, or at least points to, a departure from ordinary usage in construing the expression in issue in this appeal. To the extent that the observations of Gummow J in Wiest are to the contrary, I must respectfully disagree with them.

15                  Nor do I consider an approach founded on the ordinary usage of the language employed in s 10(1) should be rejected on the ground that it gives rise to absurd consequences, which could not have been intended. The use of a provision to deem something, for a particular purpose, to be other than what it is in fact for more general purposes may well give rise to difficulties, but that is a consequence of the drafting technique adopted. Thus, as noted, s 10(1) may require an Australian court to treat, for the purposes of an Australian law, a conviction by a court of a foreign country as something other than a conviction. Whichever of the constructions contended for in this appeal is to be preferred, the possibility of the deeming provision operating in this way remains, with the attendant problem about the requirement for the supporting documents under s 19 to include, in the case of a convicted person who is deemed to be an accused person, a “warrant…for the arrest of the person for the offence”. The Parliament has, nevertheless, chosen to use a deeming provision and effect must be given to it. It is true that some other difficult questions may arise, but they are not such as to be incapable of resolution, in a manner that produces no absurdity, by the ordinary processes of construction.

16                  In seeking, next, to discover the objects of s 10(1), which operates as a deeming provision “for the purposes of this Act”, the obvious starting point is in the other provisions in the Act in respect of which s 10(1) is intended to take effect. The principle parts of the Act that expressly turn upon the distinction between an offence of which a person is accused and an offence of which a person has been convicted are ss 19(3)(a) and (b) which, as already noted, contain part of the definition of the “supporting documents”. It is not apparent, however, what policy objectives s 10(1) serves if viewed only in the light of ss 19(3)(a) and (b), given that “supporting documents” are defined so as to include, “in any case” a duly authenticated statement in writing setting out a description of the offence and penalty applicable for it and, also, a duly authenticated statement in writing setting out the conduct constituting the offence: s 19(3)(c). (The other provision to which the distinction is directly relevant is s 6, which defines “extraditable person”. That definition would seem to operate, in conjunction with s 10(1), conformably with ss 19(3)(a) and (b).)

17                  Section 10(1) does, however, have a potentially substantial operation by reason of the regulation making power conferred by s 11, which extends to a regulation stating that the Act applies in relation to a specified extradition country subject to limitations, conditions, exceptions and qualifications. Section 11(4) contemplates that the Act may apply to an extradition country subject to a condition that, but for the subsection, would have the effect that a person is not eligible for surrender to the extradition country unless the “sufficient evidence test” is satisfied. It provides that in such a case the condition shall instead have the effect that the person is not eligible for surrender unless the prima facie evidence test is satisfied – as to which see s 11(5)(b). Clearly, the regulations may operate so that the Act applies in a way that requires the production to the Magistrate of documents in addition to those defined by s 19(3) as “supporting documents” and indeed s 19(2)(b) expressly contemplates that possibility.

18                  In fact, reg 6(1)(b) of the Extradition (Commonwealth Countries) Regulations 1998 (Cth) provides that the Act applies in relation to specified Commonwealth countries, subject to the limitation, etc, that in addition to supporting documents within the meaning of s 19(2)(a) of the Act, additional documents are required to be produced for the purpose of s 19(1) including:

“if the offence is an extradition offence of which the person is accused – documents that allow the prima facie evidence test to be satisfied.” (Emphasis added)

19                  It is very likely that the use, in this manner, of the regulation making power conferred by s 11 was in contemplation at the time the Act was enacted, since such a requirement existed in relation to Commonwealth countries under the Extradition (Commonwealth Countries) Act 1966 (Cth), which the 1988 Act replaced.

20                  At the time the 1988 Act was enacted, there were treaties between Australia and non-Commonwealth countries which made provision for a person “convicted in his absence of an extraditable offence” such as to attract the exercise of the regulation making power under s 11: see for example the Treaty between Australia and Finland concerning Extradition that came into force on 23 June 1985, as amended by the Protocol that came into force on 14 February 1986, especially Article 1, clause 7 of the protocol, amending Article 2 of the Treaty; see the Extradition (Finland) Regulations (Cth) of 1988.

21                  A review of the extradition treaties entered into by Australia and in respect of which the regulations modify the Act in ways that involve references to a person convicted in his absence, underlines a point that emerges from the text of the 1988 Act and the scope of the regulation making power conferred by s 11 of that Act, namely that s 10(1) has always had the potential to operate in differing ways and differing circumstances in respect of the many different countries with which Australia has, or may have, extradition treaties.

22                  The importance of s 11 in the scheme of the Act was emphasised in 1990 when, following a review of the operation of the Act, amendments were made by the Extradition Amendment Act 1990 (Cth) to facilitate the drafting of regulations to apply the Act in relation to specified countries, subject to limitations. Amongst those amendments were amendments to s 11 to introduce subsections (1A), (1B) and (1C). The amendments may also have been intended to remove any doubt about the efficacy about some of the existing regulations in applying the Act in relation to some particular countries.

23                  The potential for modification of the Act by regulation in these ways, in the context of the object of facilitating the making of requests for extradition and enabling Australia to carry out its obligations under extradition treaties, suggests that s 10(1) was intended to operate in a potentially broad range of circumstances in relation to diverse countries with diverse legal systems and sometimes (but not necessarily) in circumstances where its operation would be beneficial to a person convicted of an offence in his absence. The potential for modification of operation of the Act by regulation is not suggestive of any qualified or special meaning of the expression dealt with by s 10(1).

24                  The diverse circumstances in which s 10(1) might have effect, as regulations are made applying the Act in relation to the many countries with which Australia has concluded, or may conclude, treaties on extradition – countries with widely differing legal systems – suggests that s 10(1) has a broad general object of removing previously relevant distinctions between different types of convictions in a person’s absence. No object emerges that would suggest that a special or technical meaning was intended. Rather, the potentially diverse circumstances under which s 10(1) might operate point the other way, to an intention that the expression in question should be interpreted according to ordinary English usage.

25                  When he introduced the Bill for the 1988 Act, the Attorney-General, the Hon Lionel Bowen, concluded his second reading speech with the following observation about the Act (Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1987, 1618):

“The law has been rewritten to make it more readable and accessible for courts, foreign countries, practitioners and fugitives. It seeks to recognise modern problems and to resolve them and in so doing adopts an approach which ensures that a proper balance is struck between the aspirations of the international community in wanting to limit havens for law breakers and the legitimate expectations of persons accused or convicted of crimes that they will be dealt with humanely and in accordance with law.”

26                  This passage in the Attorney-General’s speech, and particularly the first sentence, gives support to the conclusion that expressions such as those used in s 10(1) were intended to be interpreted according to ordinary English usage. In my view, neither the history nor the objects of the legislation suggest otherwise.

27                  In these circumstances, I consider that the learned primary judge was correct in accepting that there was a fatal deficiency in the material placed before the Magistrate.

28                  The appeal should be dismissed with costs.

Associate:

Dated: 30 January 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL J:

29                  I have had the advantage of reading in draft form the reasons for judgment of Finkelstein J and am grateful to him for setting out in detail the facts as they appear in the material before the Magistrate and, with some elegance, the historical background which led to the enactment of s 10(1) of the Extradition Act 1988 (Cth) (“the Extradition Act”) with which the present appeal is concerned.

30                  As Finkelstein J sets out, s 10(1) provides:

“Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.”

31                  The significance, and it is the only direct significance, of the Extradition Act distinguishing, as it does, between a person who is convicted of an offence and a person who is accused of an offence lies in s 19(3)(a) and (b) of the Extradition Act. However it should be noted that since the Extradition Act applies subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral treaty the distribution may in a particular case assume greater significance: Extradition Act s 11(4) and Extradition (Commonwealth Countries) Regulations 1988.

32                  In general terms it may be said that the enquiry which is held before a Magistrate under s 19(1) is an enquiry into whether a person who is the subject of an application made to the Magistrate is “eligible for surrender”. The person will, inter alia, be eligible for surrender only if documents which are “supporting documents” as defined in s 19(3) of the Extradition Act are produced to the magistrate. The definition of “supporting documents” in s 19(3) distinguishes between documents which are required where the person is a person accused of an offence and those required where the person “has been convicted” of an offence. Where the person is a person who is accused of an offence the documents required are among others a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence or a duly authenticated copy of such warrant. Where the person is a person who has been convicted of an offence the documents required are among others such duly authenticated documents as provide evidence of the conviction, the sentence imposed or the intention to impose a sentence and the extent to which a sentence imposed has not been carried out. Other documents required to be produced and falling within the definition of “supporting documents” are common to both sets of circumstances.

33                  The purpose of the supporting documents required to be put before the Magistrate is to enable the Magistrate to decide whether he is satisfied that the conduct constituting the offence said to have been committed in the extradition country would, if it or equivalent conduct had taken place in Australia, have been an extradition offence in relation to Australia: s 19(2)(c) and whether there is an extradition objection in relation to the offence: s 19(2)(d). Since, the issue of conduct is, in any case, most likely to be decided by reference to the duly authenticated statement in writing setting out the conduct and statement of the penalty applicable to the offence (a document required whether or not the person is a person charged or a person convicted) it can be concluded that the relevance of the different nature of the documents required to be put before the Magistrate could only go either to the extent of punishment actually meted out as against that only potentially applicable or to the question whether there is an extradition objection. One may wonder then, why the distinction between charge and conviction has been maintained. However, the answer may lie in the fact that regulations may prescribe modifications or qualifications to the procedure applicable (see s 11). Be that as it may the distinction is one that Parliament has drawn and which must be obeyed in fact if the Magistrate is ultimately to determine that the person is eligible for surrender.

34                  The history narrated by Finkelstein J makes it clear that the provisions of s 10(1) were introduced into the legislation for two reasons. First a person convicted in his or her absence could well argue, absent a definitional deeming such as s 10(1) provides, that having been convicted he or she is no longer a person who “is accused” of the stipulated offence, for there having been a trial, whether or not in his or her absence, there has been a conviction which has taken the place of the original accusation (cf In re Coppin (1866) 2 Ch App 47). Secondly the distinction between convictions in absentia which may be re-opened where the extradition process results in the return of the person and those which are final and cannot be reopened (the French judgment par contumace and the French judgment itératif défaut) was no longer to be relevant. Both, being judgments given in the absence of the person, were in the Extradition Act to be treated in the same way (cf R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498).

35                  So much is clear. But in my opinion, the history helps little in deciding the present issue before the Court, which is whether a person who deliberately absents himself or herself from a trial of which he or she has notice is properly to be described as a person who “has been convicted in the person’s absence of an offence”.

The decision in Wiest v Director of Public Prosecutions (1988) 23 FCR 472.

36                  In Wiest the members of the full Court differed on the interpretation of s 10(1), although it is clear that the discussion on that subject was merely dicta. Nevertheless, it is dicta deserving of considerable respect, emanating as it did from senior members of the Court. The majority of the Court comprised Sheppard and Gummow JJ. Sheppard J agreed generally with the reasons of Gummow J, although he commented on some matters (not presently relevant) in a separate judgment.

37                  Wiest was a case of an appellant who had been represented by counsel throughout the trial but in the course of it had obtained a visa from the Australian authorities and left the Federal Republic of Germany where the trial was held. There was, in fact, an appeal brought on his part in Germany, although by that time Mr Wiest was in Australia. The appeal failed. The documents presented to the Magistrate referred to the appellant as being a person charged with a stipulated crime and the case was conducted before the Magistrate upon the basis that the supporting documents should be those appropriate to the case of a person accused of a crime, rather than those appropriate to the case of a person convicted of a crime. In Germany, it seems to have been the case that the conviction was final, in the sense that it could not have been reopened.

38                  The argument which the Court addressed centred upon the consequence of the deeming in the then s 4(3) of the Extradition (Foreign States) Act 1966 (Cth). It seems to have been argued on behalf of Mr Wiest that every document from and including the initial requisition for extradition had to specify whether the person the subject of the request for extradition be extradited either for trial, if a person charged or for the purpose of serving a sentence, if a person convicted. It was thus being argued that the deeming in the then equivalent section to s 10(1), being for all purposes of the Act had the result that for all such purposes an applicant convicted in his absence had to be treated as only having been charged and not convicted. It was said to be a consequence of the argument that a person who had been convicted in his absence could not be extradited at all, although for my part I have great difficulty in seeing why this was the case, despite the acceptance of the argument by Burchett J.

39                  The argument was rejected by the majority of the Court. Naturally it was a part of the argument that the applicant was, indeed, a person who had been convicted in his absence, despite the fact that he had been represented at the trial.

40                  Gummow J noted at 510, in the course of his Honour’s reasons that s 4(3) of the then Extradition (Foreign States) Act 1966 (Cth), the equivalent of s 10(1) of the Extradition Act, achieved “the placing of those to whom it applied on the same footing as those fugitives who are accused but not convicted of an offence.” The question, his Honour said, was who were the persons to whom s 4(3) applied. That question turned, as his Honour said at 510, upon the meaning to be given to the expression “a person convicted in the absence of the person”.

41                  His Honour then considered the history of extradition law in its application to convictions par contumace or itératif défaut. There is no inconsistency between the history outlined by Gummow J and that outlined by Finkelstein J although Gummow J did not refer to the solution adopted in the United Kingdom in 1988 in the Criminal Justice Act (UK),s 3(2), which is not surprising, given that it was not the solution adopted in Australia, where the relevant amendment under consideration was made in 1985.

42                  It is clear from his Honour’s reasons for judgment that he regarded the question whether Mr Wiest was a person who was convicted in his absence as involving a serious issue. It is also clear that his Honour did not finally decide that he was. What his Honour said at 514-515 was this:

“It is true that Mr Wiest was not present in court, or indeed, on the territory of the Federal Republic, on 11 February 1987 when judgment was delivered by the Local Court. That this was so was not the result of any law of the Federal Republic nor of any duress or other means which was exerted upon the appellant to prevent his continued attendance. It is clear from the materials before us that he left Germany in the course of his trial and of his own volition.

It is a requirement of the common law as understood in England and Australia that the prisoner be present throughout his trial for an indictable offence if he is in custody … There may not be such a requirement at common law where the offence is a misdemeanour … The right to be present is waived if, in the course of the trial and whilst on bail, the accused absconds or escapes from lawful custody; the judge then has a discretion to continue the trial or to discharge the jury …”

His Honour then discussed some United States cases concerning waiver where an accused absconds in cases involving non capital offences and then continued at 515:

“In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of conviction in absentia as involving conviction in the absence of the accused, where his absence was the result of conduct on his part which amounted to a voluntary waiver of his right to be present. Further, the history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights. I bear in mind also the force of the observations, as to the correct approach to statutory construction, by Mason J and McHugh JA in the passages I have set out earlier in these reasons.

In my opinion, the better view is that a person has not been convicted in his absence within the sense of s 4(3) of the Extradition Act where the absence of that person is the consequence of conduct constituting the voluntary waiver of a right to be present. However, as I have said, the proceedings … were conducted on the footing that s 4(3) did apply and I believe we should not now depart from that course.”

43                  The judgment of Finkelstein J is critical of the reasoning underlying these passages. In essence his Honour says that the European history shows that the question in France and elsewhere in Europe was not one concerned with voluntary waiver. Further it is suggested that the common law position does not lead to the conclusion drawn by Gummow J.

44                  I have no doubt that Gummow J is correct when he says that the concern in the United Kingdom and in Australia in the context of extradition law was with extraditing persons to countries where convictions had been obtained against persons who were convicted in absentia without their having been given a fair trial. Indeed, the English 1988 amendments were designed precisely to ensure that there should be no extradition where a conviction had been obtained in absentia if it was not in the interests of justice to return the convicted person to the foreign state on account of the conviction. And there would not be likely to be an unfairness to return a person convicted in a case where, after the trial had commenced and in which he was represented by counsel the person absconded, the precise case under consideration in Wiest.

45                  I do not think it likely that the concern of the extradition law in England or Australia was with cases such as in Wiest where a person had voluntarily absconded during a trial in which he was represented. Indeed, that question does not seem at all to have been a matter to which attention has ever been directed. Rather the history makes it clear that attention was focused on the distinction between a judgment par contumace where the conviction would be set aside and a new trial ordered where the person was returned to the extradition country and a conviction that had become final where extradition would not result in a new trial.

46                  So far as the so-called “first proposition” is concerned I am sure that Gummow J hardly needs any defence from me. His Honour does not attempt a complete summary of the common law position concerning an accused absenting himself from a trial. The point of the thesis presented by Gummow J is that both in Australia and the United States a different position is taken to the case where the accused waives his right to be present than where he does not. What his Honour leaves open, as indeed was preferable, where the issue did not need to be resolved, was the very circumstance that was before the Court, namely the case of a person who is represented at trial but absconded during the course of that trial and indeed, after it had commenced. It is in that context that his Honour refers to “waiver”. None of the cases referred to by Finkelstein J deals with such an issue.

47                  The key to the comments of Gummow J lies in his Honour’s discussion of the rules of interpretation.

48                  In interpreting words used it is both appropriate and necessary to have regard to the context in which the word appears, using the word “context” in the broad sense it is used in the well known passage in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. So, it will be necessary to have regard to the mischief which the relevant provision may have been intended to overcome and more generally to the purpose of Parliament in enacting the relevant provision, so that the Court may give effect to that legislative purpose.

49                  A word in an Australian statute will generally be interpreted in accordance with Australian usage. This is subject to different considerations which arise where statutes are enacted to give effect to international treaties where it may be assumed the legislature intended in the Statute to adopt the meaning which the word may have in the relevant treaty. That is not the case here, although the history of extradition law in Australia (it is set out in some detail in Cabal v United Mexican States (2001) 108 FCR 311 at 336-338) shows that the Australian law was influenced not only by the legislation of the United Kingdom which provided the initial model for extradition law in this country but also by a meeting of Commonwealth law ministers held in London in 1966 to review extradition arrangements operating within the Commonwealth. However, the very nature of the subject matter requires that the Extradition Act be construed, so far as the language permits, so as not to clash with international comity and practice: Zachariassen v Commonwealth (1917) 24 CLR 166 at 181 and Wiest per Gummow J at 507.

50                  This having been said, there is a real issue whether for the purposes of the Extradition Act and the policy underlying it and having regard to international comity and practice a person should be treated as having been convicted in his or her absence when that person waives his or her right to be present at the trial. In stating this issue it should be noted that waiver is not the same as voluntary absence from the trial. To the extent that the comments of Gummow J suggest that that is the law in the United Kingdom his Honour’s view has now been contradicted by the recent decision of the House of Lords in R v Jones [2002] 2 Cr App R 9 to which Finkelstein J refers. I shall return to Jones after summarising shortly the dissenting views of Burchett J in Wiest.

51                  After setting out the historical background to the distinction between charge and conviction Burchett J noted that the issue which was before the Court was the extent of the deeming in the then s 4(3). The question was whether the distinction was one which went only to the kind of documents which were to be put before the Magistrate or whether the deeming went further so as to prevent extradition lawfully of a person convicted in his absence as a convict. In his Honour’s view the deeming had the broader effect. Particularly relevant in his Honour’s mind was the fact that extradition was a legislative law which impaired personal liberty so that the it should be given a strict construction. Thus s 4(3) was not solely or even mainly concerned with the adducing of evidence. It is unnecessary here to consider that particular argument further, for in this respect it was rejected by Gummow and Sheppard JJ and does not arise before us.

52                  On the question of whether Mr Wiest was a person who had been convicted in his absence his Honour was of the view that the draftsman had eschewed technical language and that the natural meaning of the words “person … convicted in his absence” brought about the result that Mr Wiest was indeed a person who had been convicted in his absence. In any event, there was, his Honour said, insufficient evidence before the Court to enable a contrary conclusion.

The decision of the House of Lords in Jones

53                  The decision of the House of Lords in Jones provides a useful discussion of the European and Common Law position concerning trials in absentia and waiver.

54                  It would seem from the decision in Poitrimol v France (1993) 18 EHRR 130 that the present European position having regard to the European Convention on Human Rights is that there is no contravention of the Human Rights Convention where a judgment after a trial in absentia can be reopened and a new trial obtained if the person convicted applies for it but that it is open to question whether the conviction could be set aside and a new trial ordered in a case where an accused waived the right to appear and defend himself or herself. The point that was raised in Jones was whether there had been a breach of the Convention in the facts of that case or whether the conviction obtained contravened common law principles.

55                  Jones was a case where after arraignment the defendant did not surrender for trial on the date appointed for that trial. The facts were thus quite different from those under consideration in Wiest where the defendant had surrendered for trial, and was represented at it, although during the course of the trial he had absconded.

56                  In Jones the trial Judge had taken the view that the defendant had deliberately absconded to frustrate the trial and ruled that the trial should proceed as it did. The appellant, who was convicted then appealed. The House of Lords was of the view that the conviction should stand because the Judge had a discretion, which should be exercised with great caution, to permit the trial to proceed. It was pointed out that it was desirable that the defendant in such a trial be represented (as was the case in Wiest).

57                  The Court of Appeal had found that on the facts in Jones the defendant had waived his right to a trial at which he was present. It seems to have been accepted that if there was a waiver the conviction would have had to stand. Hence one of the questions in the House of Lords was whether there had been a waiver. It may be noted that the case makes it clear that the manner of exercise of discretion whether to proceed in the absence of a defendant will be affected by whether the defendant has voluntarily chosen to abscond. That is clearly the case where there is waiver. Lord Bingham, with whom Lord Nolan generally expressed agreement, agreed ultimately with the Court of Appeal that the defendant had in the circumstances “waived” his right to appear and defend himself (see, for example at 133 per Lord Bingham and at 141 per Lord Hutton). Lord Bingham said at 134-135:

“one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. … If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.”

58                  Lord Hoffmann in a separate judgment in which his Lordship also expressed agreement with Lord Bingham was not comfortable, however, with the conclusion on the facts of the case that the defendant had waived his rights to attend at the trial under the provisions of Article 6 of the European Convention on Human Rights. His Lordship was of the view that waiver required “consciousness of the rights which have been waived.” Mere deliberate choice not to exercise the right to be present would not satisfy that test. But his Lordship was of the view that even if there was not a waiver the relevant question was whether there had been a fair trial. It was in that context that his Lordship said at 137, in a passage that includes the passage cited by Finkelstein J:

“But I do not read the European cases as laying down that a trial may proceed in the absence of the accused only if there has been a waiver of the right to a fair trial. The question in my opinion is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one.”

59                  Lord Rodger also did not accept that there had been a waiver by the defendant of his right to a trial at which he was in attendance. Like Lord Hoffman he was of the view that there could be no waiver without knowledge of the right. Relevant was the fact that the defendant had not been represented. There could be little doubt that it would be inferred that the defendant in Wiest who was represented, had waived his right to a trial at which he was present.

60                  It is true that in the course of the various judgments of their Lordships reference is made to the trial having been in the absence of the defendant and of course it was. But their Lordships were not construing the language of a statute in the context of extradition as we are. It does not necessarily follow that the use by their Lordships of the expression in the course of the judgment determines the issue before us.

Conclusion

61                  The present case is not about whether the appellant in Wiest was a person who was convicted in his absence. Whatever may be the case where a person facing extradition has been convicted after a trial at which he is represented and in circumstances where that person absconds in the course of the trial the present case is quite distinguishable from that. The respondent here was never personally present at any time during his trial, although on at least one occasion perhaps equivalent to an arraignment he might be said to have been present through his mother. The respondent had been served with Court process and clearly had notice of the date of the trial. He was never however represented by anyone. No question arises here of waiver of the right to be present at the trial. There is certainly no suggestion that the respondent was aware of his rights if that matter is relevant to waiver. The case is simply one of which it can be said that the respondent deliberately absented himself from the trial and was not present throughout that trial whether in person or through a legal representative.

62                  For my part I do not think that the expression “has been convicted in the person’s absence of an offence” has or should be held to have, any technical meaning. The expression is made up of ordinary English words. Although it is true that the Extradition Act is intended to govern extradition to all countries which fall within the definition of “extradition country”, that is to say generally, all countries which regulations made declare to be an extradition country, the language used in s 10(1) can not be construed as referring to a particular kind of procedure in a particular extradition country or group of countries. The list of extradition countries is large. It covers countries in Europe, Asia, the Middle East and North and South America, countries with diverse legal systems and no doubt diverse procedural rules dealing with the consequences of conviction in absentia. In any event there is no suggestion here that any technical meaning is contemplated or indeed that there is any accepted technical meaning of the expression either in Australia or applicable throughout the countries which fall within the definition of “extradition country”.

63                  Once it is accepted that the expression has no technical meaning the question here resolves itself as being merely a question of fact: Was the respondent in this case convicted in his absence? With some regret I do not think that any view is open other than that he was so convicted on the facts of the present case. These are, first that he was arrested and examined in the presence of his lawyer. Next, he was served a warrant of appearance, the document which recorded the date of hearing and the charges laid against him. Thirdly, he seems to have been present on the date recorded as the date of hearing but the case was not heard that day and adjourned. On that day it seems the trial had not commenced. Thereafter he did not appear, although his mother did and the date on which the trial was to commence was notified to her, although not, so far as the evidence shows, to the respondent personally. At no time after the trial actually commenced was the respondent in court. The mere fact that it was the respondent’s decision not to attend the trial does not alter the fact that he was not there. Mere non-attendance does not amount to a waiver of the right to attend at a trial. It cannot be said that the respondent attended through some agent as might be said to have been the case in Wiest.

64                  It is unnecessary in the present case to deal with factual situations, said to produce absurd consequences, such as where a person was absent from some small part of the trial, perhaps because he had been taken to the cells for a part of the trial or at the time the verdict was delivered. Resolution of the problem such factual situations create can await the day when they require decision.

65                  I thus agree with the learned primary Judge that the application to this Court must fail, although not for the reasons his Honour gave. The appeal should in my view, therefore, be dismissed with costs.

Associate:

Dated: 30 January 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FINKELSTEIN J:

66                  The Greek government (the Hellenic Republic) requests the surrender of Mr Tzatzimakis, the first respondent, to be committed to prison to serve a sentence imposed by the Court of Appeal of Crete following his conviction on a number of drug-related offences. A magistrate, the second respondent, was required to determine whether Mr Tzatzimakis is eligible for surrender. Under the Extradition Act 1988 (Cth), a person is liable to be surrendered if he has been accused or convicted of an “extradition offence” (as defined) committed within the jurisdiction of the requesting country. The requirements regarding the evidence to be submitted by a requesting state in support of its request for extradition differ according to whether the fugitive has been tried and convicted, or has not yet been tried: s 19(2) and (3). In the proceeding before the magistrate, the Greek government produced documents appropriate to a case against a convicted person but not an accused. The magistrate found that, notwithstanding his conviction by the Court of Appeal, Mr Tzatzimakis is an accused person for the purposes of the Extradition Act. Accordingly, the magistrate decided that Mr Tzatzimakis is not eligible for surrender. An appeal to a judge (North J) under s 21 was unsuccessful and we now have the appeal from the judge’s decision.

67                  The papers sent by the Greek government show the following. On 7 November 1990, Mr Tzatzimakis was arrested in Chania. A quantity of heroin was found in his possession. The police interviewed Mr Tzatzimakis and he made a number of incriminating statements. In due course, with two alleged co-offenders, Mr Tzatzimakis was charged with having purchased, possessed and sold heroin. He was “provisionally detained” following an appearance before an examining magistrate. Then he was released from custody and summoned to appear before the Court of Appeal on 4 October 1991 to face trial. He failed to appear at the trial. His mother did, however, attend. She informed the court that her son had received written and verbal threats and was afraid to come to court. She requested an adjournment of the trial, which the court granted. Formal notice of the adjournment was not given to Mr Tzatzimakis because, according to the court, “the date of the hearing was notified to his mother”. On the adjourned day, 24 January 1992, Mr Tzatzimakis again failed to appear. On this occasion the trial proceeded, with the court noting that it was “trying the case in the absence of the defendant Georgios Tzatzimakis, domiciled in Chania”. He was convicted of purchasing drugs (heroin), intervening in drug sales, supplying a small quantity of drugs for personal use and possession of drugs. He was sentenced to a period of imprisonment.

68                  The question raised by this appeal is whether the magistrate was correct in holding that Mr Tzatzimakis is not a “convicted” fugitive for the purposes of the Extradition Act. The magistrate based his decision on s 10(1) the effect of which is to deem certain convictions not to be convictions. Section 10(1) provides:

“Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.”

The answer to the question depends upon the meaning to be given to the phrase “convicted in the person’s absence”. Is a person who has been charged and arrested in an extradition country, but is not present during the trial at which he is convicted, one who has been “convicted in the person’s absence”? The answer to the question may not be clear. Different views have been expressed. So, it is necessary to look afresh at the issue.

69                  It is convenient to begin with the history of s 10(1), a task that has already been undertaken in some detail by the judges in Wiest v Director of Public Prosecutions (1988) 23 FCR 472. It is necessary to recount some of this history and make reference to additional material to explain these reasons. In 1843 England concluded an extradition treaty with France. The Extradition Act 1843, (6 & 7 Vict c 75) carried the treaty into effect. The treaty provided for the surrender of fugitives accused of murder, attempt to commit murder, forgery or fraudulent bankruptcy. It made no provision for the surrender of persons convicted of these crimes. The treaty immediately gave rise to a controversy. The Code d’Instruction Criminelle of 1808 permitted proceedings in absentia to be maintained against an accused. There might be a judgment par défaut in a Tribunal Correctionnel in respect of “délits” (misdemeanours) and a judgment par contumace from the Cour d’Assises in the case of felonies. The Cour d’Assises tried the accused without a jury. The trial was on the papers and the accused was not represented. If, after conviction, the condemned person was arrested or surrendered himself, the conviction was annulled and there was a new trial for the offence with which he was charged.

70                  There was a body of opinion within the Home Office that a judgment par contumace amounted to a conviction and that a person so convicted could not be surrendered to France. Sir Thomas Henry, the Chief Magistrate of Police at Bow Street, was of a different view. He thought that such a judgment was only a judgment in contempt of court. He requested the Home Secretary to consider the matter, but the opinions obtained by the Home Secretary were against him: see the testimony of Sir Thomas Henry to the Select Committee on Extradition, as recorded in its Report (at pp 36-37) published in 1868.

71                  In due course, however, Sir Thomas Henry’s view was vindicated by the Lord Chancellor. In July 1866, the French Government requested the surrender of Charles Dubois (Coppin) as a person accused of forgery. A warrant of arrest was granted and, in the absence of Sir Thomas Henry, Coppin was brought before Mr Vaughan, a police magistrate. A witness called to identify Coppin said that he had been convicted par contumace and sentenced to imprisonment for life. M Rasul, a French advocate, gave evidence that such a conviction would be annulled by the surrender. Mr Vaughan held that Coppin was eligible for surrender and ordered that a warrant be issued for that purpose.

72                  Coppin immediately applied for habeas corpus to Lord Chancellor Chelmsford, who had come to town for the purpose and heard the application in his private residence: Clarke Upon Extradition 4^th ed (1903) at 158. The Lord Chancellor held that since the judgment par contumace would be annulled on surrender, the surrender was, properly speaking, onlyof an accused, and thus Coppin’s extradition was within the scope of the treaty with France: In re Coppin [1866] 2 Ch App 47. Lord Chelmsford put it this way (at 55):

“But, if, in order that no part of the argument for the prisoner may be disregarded, I should assume that it has been established that the judgment par contumace does work some prejudice to the party upon the trial, either by reducing the amount of necessary proof, or by changing its character, or by making him liable to costs, how could that possibly take him out of the category of accused persons? He has ceased to be a person condemned, because his condemnation is annulled upon his appearance, and he is to take his trial for offences with which he stands charged. What better, I ought to say what other, description of him could be given than that of a person accused?”

73                  Two years after the publication of the Report of the Select Committee on Extradition the British Parliament enacted a new Extradition Act(33 & 34 Vict c 52) that had been drawn by Sir Thomas Henry and appended to the Report. The Act laid down a comprehensive code for extradition which remained in force in England until it was repealed and replaced by the Extradition Act 1989. The 1870 Act was applied in Australia by the Extradition Act 1903 (Cth) and was the model for the later Extradition Acts of 1966 and 1988.

74                  The 1870 Act defined the persons who might be the subject of extradition, and the crimes for which surrender might be granted. It placed restrictions on the surrender of fugitive criminals, prohibiting the surrender of political offenders and offenders who may be tried for offences other than extradition crimes. It set out what the requesting state was required to establish before a magistrate to obtain a surrender. One important aspect of the new legislation was that it permitted surrender not only of a fugitive alleged to have been convicted of an extradition crime, but also one accused of having committed a crime in the territory of the requesting state: 1870 Act, s 10. In the case of a fugitive alleged to have been convicted of an extradition crime the magistrate required proof of the conviction (s 10) and of the identity of the person brought before him. For an accused person the duly authenticated foreign warrant authorising the arrest of the accused was required to be produced together with such evidence as would, according to English law, justify the committal for trial of a prisoner for a similar crime: s 10. The law made special provision for persons condemned par contumace. By s 26 (the definition section) the terms “conviction” and “convicted” were not to “include or refer to a conviction which under foreign law is a conviction for contumacy, but the term ‘accused person’ includes a person so convicted for contumacy.” (The expression “convicted for contumacy” was intended to be a reference to persons condemned par contumace.)

75                  The view that a conviction par contumace was not a conviction for extradition purposes was not confined to England. Prior to Coppin’s case, the United States Government had advised England that it took this position under its treaty with France: 1 Moore on Extradition (1891) vol 1 at 132-133. See generally Whiteman Digest of International Law (1963), vol 6, § 47; Ex parte Fudera 162 F 591 (1908), app dis, 219 US 589 (1911); Gallina v Fraser 177 F Supp 856 (1959), aff, 278 F 2d 77 (1960), cert denied, 364 US 851 (1960). In Canada the Extradition Act of 1952 contained a provision similar to s 26. While the structure of the current Canadian Act is different, its effect is the same: see Extradition Act 1999 (Can) s 2 (1) and (5).

76                  The next important development occurred in 1960. In January, France requested the extradition of Caborn-Waterfield, who had been convicted by a French court, the Tribunal Correctionnel, on a charge of theft. Caborn-Waterfield had not appeared at his trial. In his absence he was convicted by judgment par défaut. He moved for a retrial, which was granted, but failed to attend the hearing. In consequence, the judgment par défaut was confirmed by a judgment itératif défaut which, not being appealed within ten days, became final and conclusive.

77                  After the Bow Street magistrate committed Caborn-Waterfield for extradition, he applied for a writ of habeas corpus. He argued that he was being proceeded against as a “person accused” whereas he was in fact a “person convicted” of an extradition offence because upon his surrender he would immediately be imprisoned to serve his sentence. The Divisional Court held that a judgment par défaut was of the same character as a judgment par contumace: R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498. On the other hand, however, a judgment itératif défaut was radically different in character. Salmon J (as he then was) in delivering the judgment of the Divisional Court said (at 510):

“In our judgment, a conviction for contumacy does not include a final judgment ‘itératif défaut’ … A fugitive criminal convicted ‘par contumace’ would upon his surrender be tried, where as a fugitive criminal subject to final conviction ‘itératif défaut’ would, on his surrender, be sent straight to prison without any further trial.”

Consequently the court ordered that Caborn-Waterfield be set free. In R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46, the House of Lords approved Caborn-Waterfield and applied Coppin.

78                  The resulting situation had the potential to cause injustice. One might expect that an extradition treaty will only be concluded with a country that has an apparently adequate system of criminal justice. Nevertheless, there is always the possibility of injustice in the case of a conviction obtained at a trial where the accused is neither present nor represented. Yet the fairness of the proceeding in the requesting state was not a matter for the courts: Royal Government of Greece v Governor of Brixton Prison [1971] AC 250.

79                  This potential for unfairness was one of the issues considered by a United Kingdom inter-departmental working party established to review the law and practice of extradition. The working party published a paper in May 1982. Paragraphs 4.15 to 4.27 dealt with “Persons convicted in absentia”. The paper described the problem this way:

“Where a fugitive has been convicted by the courts of the requesting State there is in general no question of enquiring into the circumstances of his conviction. It is enough to prove that he has been convicted of an offence which is extraditable by the laws of each Party and it is regarded as unnecessary to assess the evidence on which the finding of guilt is based. Special considerations arise, however, where the fugitive has been tried and convicted in his absence. The position in English law is that a person may not be arraigned in his absence but that, after arraignment, trial on indictment may proceed in the absence of the defendant where his absence is voluntary, or if he misbehaves in court and is ordered by the judge to be removed. The discretion of the judge to allow the trial to proceed must however be exercised with great reluctance and with a view to the due administration of justice rather than to the comfort or convenience of anyone. It is arguably wrong in principle to surrender a fugitive upon no other ground than a finding of guilt reached in his absence, in circumstances in which the trial would not have been allowed to proceed in England.”

(citations omitted)

80                  The working party recognised that the problem could not arise in the case of a fugitive whose conviction was annulled. For other cases it recommended a change to the legislation to require the requesting state to give an assurance that the fugitive would be retried on his return. Where no assurance was given it was suggested that the requesting state should be required to give prima facie evidence of the commission of the offence as in the case of accused persons. The recommendation was not adopted. The problem was solved in another way. The Criminal Justice Act 1988 (UK) by s 3(2)introduced the requirement that:

“A person who is alleged to be unlawfully at large after conviction of an extradition crime by a court in a foreign state shall not be returned to that state, or committed to or kept in custody for the purposes of such return if it appears to an appropriate authority –

(a)               that the conviction was obtained in his absence; and

(b)               that it would not be in the interests of justice to return him to the foreign state on the ground of that conviction.”

Section 6(2) of the 1989 Act is substantially in the same terms. English cases have held that, according to this provision, it is appropriate to have an enquiry into a conviction in absentia if the conviction is not be set aside. If, on the other hand, the conviction will be set aside it is appropriate to enquire into the procedure that would be adopted by the requesting state once the person was returned. If there was unfairness in what had or may occur extradition could be refused: see, for example, R v Governon of HM Prison; Ex parte Franco Barone (unreported), 7 November 1997, Queens Bench Division, Divisional Court Transcript No. CO/2734/1996; Government of Italy v Saia [2001] EWHC Admin 997; Peci v Governor of Brixton Prison (unreported, 5 November 2002, Queens Bench Division, Transcript No. CO/1368/99; The Times, 12 January 2002. Compare Re Foy (unreported), 14 April 2002, Queen’s Bench Division Transcript No. CO/3969/99, which holds that s 6(2) does not apply to a person convicted par contumace because he has no need for the protection the section offers.

81                  Australia also changed its legislation in the 1980s. Here Parliament decided that a person who suffered a final conviction in his absence should be placed in the same position as a person convicted par contumace. Accordingly, the Extradition (Foreign States) Amendment Act 1985 (Cth) included a new s 4(3) into the Extradition Act 1966 that became s 10(1) in the current statute. The provision overturned Caborn-Waterfield.

82                  Two views on the meaning of s 10(1) find their expression in Wiest. There is, on the one hand, the obiter opinion of Gummow J, with whom Sheppard J agreed, that a person who is voluntarily absent from his trial is not a person who has been convicted in his absence and, on the other hand, the opinion of Burchett J which is to the opposite effect. Gummow J based his opinion on two separate, but related, propositions. I regret to say that I am unable to agree with the learned judge. I have a different view both as regards the two propositions and the conclusion.

83                  Gummow J’s first proposition (which appears at 515) is as follows:

“In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of conviction in absentia as involving conviction in the absence of the accused, where his absence was the result of conduct on his part which amounted to a voluntary waiver of his right to be present.”

Putting to one side “the common law position”, it is convenient first to examine what in ordinary usage is meant by a trial in absentia, and for that purpose to begin with an examination of the position in civil law countries where such trials are not unusual. In most civil law countries an accused is entitled, but not obliged, to attend his trial. If he does not attend, he may be convicted in his absence. Is the reason for the accused’s absence a material matter? As one might expect, the circumstances in which there may be a trial in absentia differ to some extent from country to country. Consider the Code d’Instruction Criminelle as in force when Coppin’s case was decided. Chapter 11 of the Code (comprising Arts 465 to 478) concerned what the heading described as “Des contumaces”. Article 465 was in the following terms:

“Lorsque, après un arrêt de mise en accusation, l’accuse’ l’aura pu être saisi, ou ne se présentera pas dans les dix jours de la notification qui en aura êtê faite à son domicile, ou lorsque, après s’être prêsenté ou avoir été saisi, il se sera évadé, le prêsident de la cour d’assises, ou, en son absence, le prêsident du tribunal de premiêre instance, et à dêfaut de l’un et de l’autre, le plus ancien juge de ce tribunal, rendra une ordonnance portant qu’il sera tenu de se reprêsenter dans un nouveau delai de dix jours; sinon, qu’il sera dêclaré rebelle à la loi, qu’il sera suspendu de l’exercise des droits de citoyen, que ses biens seront séquestrés pendant l’instruction de la contumace, que toute action en justice lui sera interdite pendant le même temps, qu’il sera procêdé contre lui, et que toute personne est tenue d’indiquer le lieu où il se trouve.

Cette ordonnance fera de plus mention du crime et de l’ordonnance de prise de corps.”

I do not have an official translation of this article butvolume  29 of the American Series of Foreign Penal Codes revised edition (1988) contains the French Code of Criminal Procedure of 1958 which is the direct successor to the Code d’Instruction Criminelle. A cursory comparison of the articles dealing with “Trial in Absentia” (the new heading) and “Des contumaces” shows few differences. Accordingly I will use the 1958 Code as a point of reference. Under Art 465 (now Art 627) a French court might proceed to judgment in the absence of the accused in at least the following circumstances: (a) if the accused has not been arrested; (b) if the accused has not appeared at his trial; and (c) if after arrest the accused has escaped. That is to say, there might be a judgment par contumace (a judgment in absentia) rendered in the accused’s absence though his absence was voluntary.

84                  It is of interest to note that in France the procedure by contumace was not established by the Code d’Instruction Criminelle. It dates back to feudal times. Esmein’s A History of Continental Criminal Procedure (1913), p 73 states:

“The old criminal procedure, in common with all formal procedures, admitted of no judgment by default. An accuser and an accused must be present from the beginning to the end of the action. A means was found, however, of insuring that justice should take its course despite all resistance on the part of the recalcitrant. As in the Germanic practice, the procedure by contumace resulted, not in a condemnation for the act struck at by the prosecution, but in the outlawry of the person guilty of contumacy. Every safeguard given by the law was withdrawn from the person who refused to submit to the law. That was only logical.”

85                  The 1808 Code was the prototype for the civil law world. It is for this reason that most civil law countries make provision for trials in absentia. Article 332 of the Portuguese Code of Criminal Procedure of 1987, for example, provides that where it is not possible to notify an accused of the date of his trial or to detain or remand him in custody to assure his presence he may be declared contumacious. In Collozza v Italy (1985) 7 EHRR 516 the European Court of Human Rights explained the position in Italy. The Court said (at 521) that there may be “trial by contumacia (by default) … when the accused, after being duly summoned, does not appear at the hearing and neither requests nor agrees that it take place in his absence.” The Court noted (at 521-522) that “[u]nder Italian law, an accused who fails to appear (contumace) has the same rights as an accused who is present. He is, for example, entitled to be defended by a lawyer—who will be officially assigned to him by the court if he has not chosen one himself—and to lodge an ordinary appeal or an appeal on points of law against the judgement concerning him.” In Germany the Code of Criminal Procedureof 1877 contemplates that a trial will only take place when the accused is present: Art 230. However, there may be proceedings against an “absentee” accused if his address is unknown or he is abroad and it is not feasible or appropriate to bring him before the competent court: Arts 276 and 277. The court may also proceed against an accused if he fails to appear after the service of a summons: Art 232.

86                  This brief examination leads me to the conclusion that in the discourse of civil law lawyers, expressions such as “a conviction in the accused’s absence” and “trial in absentia” are applied without regard to the reason for the accused’s absence. Put another way, where an accused is not present at his trial – whether or not the absence is voluntary – the trial is properly described as having taken place in the accused’s absence or in absentia.

87                  Confirmation of this view, if confirmation be needed, is to be found in the Second Additional Protocol to the European Convention on Extradition (which entered into force 17 March 1978), dealing with judgments in absentia. Article 3 of the protocol provides:

“When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with [a] criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited.”

It is an inescapable conclusion that a judgment par contumace rendered in a case where the accused was voluntarily absent from his trial is covered by this article.

88                  When the position is considered from the viewpoint of a common law lawyer, the result is the same. In the first place, trials in absentia are not unknown in English criminal procedure. In feudal times, English law recognised a procedure similar to judgments par contumace. Bracton on The Laws and Customs of England,translated by Thorne (1968) vol 2, p 352 includes the following account of outlawry:

“When a man has thus withdrawn himself because of homicide or other crime, by grace and favour of the prince he will be summoned to come and answer and stand his trial, [if there is someone who proceeds against him; otherwise, unless someone sues, he is not to be exacted at once,] because when grave crimes are charged against a defendant in his absence it is not usual for sentence to be speedily pronounced but for him to be noted as one to be summoned to appear, not to be punished but that he may have an opportunity to clear himself if he can. A lawful period of time, that is five months, within the fifth county court, will be given him to stand his trial and answer the appellor concerning the crime imputed to him. If he does not appear within that time he will be regarded as an outlaw, since he obeys neither the prince nor the law, and will thenceforth be outlawed, that is, one who is outside the law, that is, a ‘lawless man’. If he comes within that time, let him be brought before the court and answer according to the law of the land. [If after such exaction, having returned within the time, he dies, though he has not yet cleared himself he transmits his inheritance to his heirs, even though he is guilty, but he loses his chattels because of his flight.]”

(citations omitted)

In the case of treason or felony, an outlawry had the effect of a conviction for the offence charged in the indictment: Steven A History of the Criminal Law of England (1882), vol 1, p 292; Starkie Treatise on Criminal Pleadings (1822), p 285.

89                  Even now a trial may proceed in the accused’s absence. I put to one side statutory provisions for in absentia trials for summary offences such as are found, for example, in s 41 and Sch 2 of the Magistrates’ Court Act (1989) (Vic). According to the common law, a criminal case begins when the accused has been arrested and charged: James v Robinson (1963) 109 CLR 593, 606. At this point the court assumes jurisdiction over the accused. As regards his trial, it is a fundamental principle of the common law that an accused has a right to be present. But the right is not unqualified. In exceptional circumstances, the trial may proceed in his absence, perhaps even without an arraignment. The circumstances include, but are not confined to, those in which the accused is ill, misbehaves himself or has voluntarily absconded. In R v Jones [2002] 2 Cr App R 128the Law Lords regarded these as instances of a trial which takes place in the accused’s absence. The issue in that case was whether a criminal trial could proceed when the defendant had absconded. The precise question that was certified for the House was: “Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?” The speeches are replete with references to the trial of an absconding defendant as a trial in his absence. A few examples will suffice. In a lengthy passage (at 135) Lord Bingham explains why the court should have a discretion to allow the trial to go on. He instanced the situation of a multi-defendant prosecution and continued: “On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. … But a system of criminal justice should not be open to manipulation in such a way.” Lord Nolan said (at 136): “First, in common, I believe, with all of your Lordships, I would hold that under English law the discretion of the trial judge to proceed with the trial in the absence of the defendant exists in principle … not only after but before the trial has begun …”. Lord Hoffman said (at 137): “But I do not read the European cases as laying down that a trial may proceed in the absence of the accused only if there has been a waiver of the right to a fair trial. The question in my opinion is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one.” Lord Hutton said (at 138): “The authorities also show that there are two stages in the approach to be taken to the matter. The first stage is that although the defendant has a right to be present at his trial and to put forward his defence, he may waive that right. The second stage is that where the right is waived by the defendant the judge must then exercise his discretion as to whether the trial should proceed in the absence of the defendant.”

90                  When statutes have referred to a conviction in a person’s absence the intention has been to include his voluntary absence. Here, I come back to s 6(2) of the 1989 Extradition Act. It will be remembered that under this provision a fugitive can avoid extradition if he satisfies two conditions: (a) that the “conviction was obtained in his absence” and (b) that “it would not be in the interests of justice to return him on the ground of that conviction”. In cases brought under the section, the first condition has been satisfied where the fugitive has absconded, that is, when the fugitive has voluntarily failed to appear at his trial. For example, in Ex parte Barone the fugitive was one of a gang of four or five men who in May 1976 had robbed and shot dead a man at his home near Turin. He was arrested and charged with murder. In August 1976 he escaped from prison and made his way to England, where he assumed a new identity. He was convicted in his absence at a trial in March 1981 and sentenced to thirty years imprisonment. His appeal against conviction was dismissed but his sentence was reduced to twenty-eight years. The Divisional Court decided that the fugitive should not be surrendered to Italy because he was able to show that both conditions in s 6(2) were satisfied. Re Foy involved a fugitive who had been arrested by French customs officers for possession of cocaine. He was released on bail and then failed to answer a summons from the examination magistrate, whereupon a warrant for his arrest was issued. In his absence he was convicted of handling the proceeds of drug trafficking and money laundering and was sentenced to a term of imprisonment. The Divisional Court proceeded on the basis that Foy had been convicted in his absence for the purposes of s 6(1). See also Spinnato v Governor of Brixton Prison [2001] EWHC Admin 1124.

91                  Moreover, it is plain that the English parliament considers the expressions “convicted par contumace” (which can occur in the case of a voluntary absence from trial) and “convicted in his absence” to be interchangeable. This is apparent when regard is had to the Fugitive Offenders Act 1967 (UK). That statute deals primarily with extradition between Commonwealth countries. It does not contain the definitions of “conviction” and “convicted” that appeared in s 26 of the 1870 Act. But the equivalent definition, which is found in s 19(2), states: “For the purposes of this Act a person convicted of an offence in his absence shall be treated as a person accused of that offence”.

92                  The second proposition upon which Gummow J founded his opinion (which also appears at 515) is this.

“[T]he history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights.”

My reading of the history and about foreign legal concepts leads me to a different conclusion. I have already pointed out that the foreign legal systems that were the objects of legislative intervention were systems that allowed trials in absentia whether or not the facts disclosed what Gummow J and other cases speak of as a “voluntary waiver”. In any event, as the history to which I have referred shows, the parliaments were not concerned so much with the foreign legal systems but with the nature of the “conviction” which gave rise to the request for surrender. The particular concern was with the finality of the process. In Ex parte Zezza [1983] 1 AC at 55 Lord Roskill, after referring to Coppin, said:

“The English court must inform itself by expert evidence, where the application for extradition asserts that the person whose extradition is sought is a convicted person, whether the demand is founded upon a sentence ‘in contumacia’. That evidence will show whether or not the conviction upon which the demand is founded bears the characteristics of a conviction or sentence ‘in contumacy’, so that the whole matter can be reopened in the event of subsequent surrender and appearance. If it can, then the person concerned must not be treated as a convicted person but as an accused person.”

93                  I have no hesitation in reaching the conclusion that when a person has been convicted after a trial of which he has had notice, but has refused to attend, that person has been convicted in his absence. A number of textbooks that I have looked at implicitly proceed on this view, as do many cases in England and United States. Indeed, nothing that I have read would support a different conclusion. That is not to say that the phrase “convicted in the person’s absence” is not without its difficulties. One difficulty, for example, is what is meant by the word “conviction”. To a common law lawyer, this word could have any of the following meanings, dependent upon the context. It could mean (a) a verdict, plea or adjudication (itself an ambiguous word) of guilt (R v Industrial Acceptance Corporation [1953] 4 DLR 369), (b) a verdict of guilt and its acceptance by the court (Frodsham v O’Gorman [1979] NSWLR 683, 688-690; Morris v R (1979) 91 DLR (3d) 161, 182-183; Director of Public Prosecutions (Vic) v McCoid [1988] VR 982; Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1993) 38 NSWLR 257, 266), (c) a plea of guilt and its (express or implied) acceptance by the court (R v Tonks [1963] VR 121, 127-8; Griffith v R (1977) 137 CLR 293, 301-2), (d) a sentence (Burgess v Boetefeur (1884) 7 M & G 481, 504), (e) a verdict or adjudication of guilt plus a sentence (Albert William Ireland (1910) 4 Cr App R 74, 80; Harris v Cooke (1918) 88 LJKB 253, 255; R v McInnis (1973) 13 CCC (2d) 471; R v Boyce (1975) 23 CCC (2d) 16; R v Sarasin (1978) 11 AR 13, 15), or (f) a record of a conviction (R v Groves (1977) 79 (3d) 561). Moreover it might not be the common law meaning of the word that should be applied. Section 10(1) is principally concerned with trials that occur in civil law jurisdictions and, on one view, it may be necessary to determine what “conviction” means in those jurisdictions.

94                  When we turn to the word “absence”, further difficulties in construction arise. One immediately apparent problem is whether a person can be said to be absent from his trial where he is represented by a lawyer. It is also necessary to bear in mind that the real question is what is meant by the composite expression “convicted in the person’s absence”. At what precise point must the person be absent so that it can be said of him that he “has been convicted in [his] absence”? This raises further issues such as whether a person must be absent at the point of actual conviction, or whether it also necessary for him to be absent during the trial (or some part of the trial) that led to the conviction?

95                  It was not necessary for the judge to answer any of these questions. Nor need they be answered on this appeal. I identify them merely to indicate that while, in the result, I have reached the same conclusion as the judge, I do not consider that all aspects of the construction of s 10(1) can be answered by adopting, as the judge did, an approach which rejects history and pays no attention to foreign legal systems in favour of “a construction [that] reflects the ordinary use of the language”, assisted by a dictionary to determine the meaning of words such as “conviction” or “absence”. But these are all issues for another day. Here the only orders that I would make are for the appeal to be dismissed with costs.

Associate:

Dated: 30 January 2003