FEDERAL COURT OF AUSTRALIA

Timar v Republic of Hungary [1999] FCA 1518

EXTRADITION – principles governing whether applicant eligible for surrender for an extradition offence – whether supporting documents produced to magistrate in accordance with s 19(2)(a) of the Extradition Act 1988 (Cth) – whether supporting documents produced to magistrate in accordance with Art 5 par 2 of the Treaty on Extradition between Australia and Republic of Hungary – whether magistrate erred in law by granting adjournment to Republic of Hungary to correct deficiencies in supporting document.

Extradition Act 1988 (Cth) ss 5, 6, 10(2), 11(1), 11(6), 16(1), 19 and 21

Extradition (Foreign States) Act 1966 (Cth) s 17(6)

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 applied

Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 251 referred to

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

Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79 applied

Todhunter v United States of America (1995) 57 FCR 70 referred to

De Bruyn v Republic of South Africa [1999] FCA 1344 applied

Johnson v Miller (1937) 59 CLR 467 at 486, 490 referred to

Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-1 referred to

Klepp v Gibb (1988) 81 ALR 383 at 393 referred to

Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 401, 406 referred to

Papazoglou v Republic of Philippines (1997) 74 FCR 108 referred to

Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339 referred to

EP Aughterson, Extradition:  Australian Law and Procedure (1995)

LASZLO PEREGRIN TIMAR v THE REPUBLIC OF HUNGARY & ANOR

V193 of 1999

WEINBERG J

5 NOVEMBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The order of the magistrate made on 22 April 1999 committing the applicant to prison to await surrender under a surrender warrant be confirmed.

3.                  The applicant pay the first respondent’s costs of the application.

4.                  The above orders shall not take effect until 12 November 1999 at 4.00 pm.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application under s 21(1)(a) of the Extradition Act 1988 (Cth) (“the Act”) seeking review of an order of a magistrate made on 22 April 1999.  On that date the magistrate determined pursuant to s 19(9) of the Act that Professor László Tímár was eligible for surrender to the Republic of Hungary in relation to an extradition offence described as “fraud causing considerable prejudice” contrary to ss 318(1) of the Criminal Code of Hungary.  The magistrate ordered that he be committed to prison to await a surrender warrant. 

2                     The application by Professor Tímár challenges the magistrate’s decision that the supporting documents in relation to that offence had been produced to him in accordance with the requirements of s 19(2)(a) of the Act.  It challenges also his decision that the documents which were produced complied with the requirements of Art 5 par 2 of the Treaty on Extradition between Australia and the Republic of Hungary done at Budapest on 25 October 1995, which was incorporated into Australian domestic law on 25 April 1997 by the Extradition (Republic of Hungary) Regulations (No 60 of 1997)(“the regulations”).  The applicant seeks, pursuant to s 21(2)(b) of the Act, to have the order made by the magistrate quashed.

The applicant’s personal circumstances

3                     The applicant was born on 20 March 1942 in Budapest, Hungary.  He is fifty-seven years of age.  He holds a number of university degrees including a Doctorate in Engineering Science from the Technical University of Budapest.  He was formerly Head of the Electrical Machines and Propulsion Department at the Technical University of Budapest.  He is presently Head of the Department of Electrical Engineering at the Royal Melbourne Institute of Technology, having held that position since June 1995. 

4                     Prior to taking up his present position he held a number of other academic posts.  In 1993 he carried out six months’ research at the Australian Defence Force Academy in the Australian Capital Territory.  He has been a consultant on engineering matters to governments in both Hungary and Australia.

5                     Professor Tímár became an Australian citizen on 11 August 1997.  His wife is also an Australian citizen.  He resides with his wife and son in Melbourne.

The background to the extradition proceedings

6                     On 27 October 1992 a wooden holiday home belonging to the applicant’s wife and father-in-law jointly was destroyed by fire.  An insurance claim was made.  In May 1993 the insurer paid out on that claim.

7                     In December 1993 Professor Tímár was detained and questioned about the fire.  He was then released, and returned to his post at the Technical University of Budapest.  Nothing further was heard about the fire for over a year thereafter. 

8                     On 1 February 1995 the District Chief Prosecutor of Pest signed a bill of indictment No 49/1994.  That indictment accused Professor Tímár, and five others, of being responsible for the fire.  It alleged that Professor Tímár had been in financial difficulties throughout 1992, and that he had persuaded his wife sell her half interest in the house to overcome those difficulties.  However, the prospective purchaser of the property wished to acquire the land only, and not the structure which stood upon it.  Moreover, Professor Tímár’s father-in-law refused to countenance the demolition of the house.  The property could not therefore be sold. 

9                     The indictment then alleged that Professor Tímár had arranged with the other accused to set fire to the building.  He was said to have paid an advance of 20,000 Hungarian Forints (“HUF”), and to have promised an additional HUF 400,000 when the job was done.  After the house had been destroyed Professor Tímár and his relatives lodged a claim for compensation with the insurer, the Hungaria Insurance Company.  On 24 May 1993 the insurer paid out the sum of  HUF 2,007,713.  Half of that sum was paid to Professor Tímár’s father-in-law.  The other half was paid to a registered mortgagee of the property.  That cleared the debt owing on the house.  It is interesting to note that in 1992 HUF 2,000,000 equated to about $(Aus)35,000.

10                  It was not until 28 May 1997 that a warrant for Professor Tímár’s arrest was issued. That warrant referred specifically to the indictment.  It repeated a number of the allegations set out in the indictment, though in considerably less detail.  It accused Professor Tímár of having committed “the crime of fraud causing considerable prejudice” in contravention of s 318 of the Hungarian Criminal Code. 

11                  The warrant contained a description of the offence for which Professor Tímár’s arrest was sought, and also set out the punishment for that offence.  The warrant relevantly stated:

“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.”

12                  On 9 December 1998 the Commonwealth Attorney-General, Mr Daryl Williams, 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 Professor Tímár was an extraditable person for the purposes of the Act in relation to that country.  He also certified that had the conduct for which Professor Tímár’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 for that offence. 

13                  On 22 December 1998 a magistrate issued a warrant for Professor Tímár’s arrest.  On 12 January 1999 he was arrested.  He was held in custody until bailed on 15 January 1999. 

14                  On 15 February 1999 the application for Professor Tímár’s extradition was heard at the Melbourne Magistrates’ Court.  The Republic of Hungary produced to the magistrate the bill of indictment dated 1 February 1995 and the Hungarian warrant for arrest dated 28 May 1997.  It also produced a document headed “Certificate” which was dated 24 November 1997.  That “Certificate” which referred to ss 33, 34 and 35 of the Hungarian Criminal Code under the general heading “Prescription of punishability”.  It referred to s 27/A (1) of Law Decree 5 of 1979 which was said to be “in effect” and to be worded as follows:

“Section 27/A

(1)   The damage caused by fraud is significant, when the damage exceeds one million forints.”

15                  After hearing submissions on behalf of Professor Tímár, and also on behalf of the Republic of Hungary, the magistrate determined that the document headed “Certificate” was deficient in two respects.  These were its somewhat obscure use of the expression “on which the legal facts were realized” in relation to s 34, and the expression “the act of criminal proceedings effectuated by the authorities” in relation to s 35.  The magistrate concluded that these deficiencies were of a “minor” nature.  He decided pursuant to s 19(4) of the Act to adjourn the proceedings to allow the deficiencies to be remedied.

16                  The matter came back before the magistrate on 22 April 1999.  On this occasion there was tendered on behalf of the Republic of Hungary a letter dated 31 March 1999.  That letter was designed to overcome the difficulties which had been identified in relation to the “Certificate” previously produced.  It clarified those passages which had been regarded as obscure.  However, the letter did not stop there.  It also referred to two further documents which accompanied it. 

17                  The first of those documents set out ss 33, 34 and 35 of the Hungarian Criminal Code in much the same terms as the earlier “Certificate” had done.  It repeated the expressions which the magistrate had previously determined required clarification. 

18                  The second document was also described as a “Certificate”.  It set out both s 318 of the Criminal Code, and s 27/A of Law Decree 5 of 1979. It stated that, as at 27 October 1992 (the date of the fire), s 27/A was in the following terms:

“Section 27/A

(1)   the damages caused by fraud … are considerable, if the damages exceed 200,000 forints.”

19                  It can be seen, therefore, that the second “Certificate” attached to the letter of 31 March 1999 differed from the earlier version by setting out the terms of s 27/A as that section stood at 27 October 1992, rather than in November 1997.

20                  Counsel for Professor Tímár contended before the magistrate that the Republic of Hungary had failed to produce the “supporting documents” in relation to the offence for which Professor Tímár’s extradition was sought as required by ss 19(3)(c)(i) and (ii) of the Act.  Counsel also contended that the documents produced failed to satisfy the requirements of Art 5 pars 2(a) and (e) of the Treaty. 

21                  The magistrate rejected each of these submissions.  He determined that Professor Tímár was eligible for surrender.  He ordered him to be committed to prison to await surrender under a surrender warrant.

The application to review the decision of the magistrate

22                  It is necessary to set out the provisions of the Act which are relevant to this application.

23                  The law relating to extradition to the Republic of Hungary is to be found in both the Act and the regulations. 

24                  Section 11(1) of the Act provides:

“The regulations may:

(a)          state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or

(b)          make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.”

25                  Regulations have been made under s 11(1)(a) which modify the operation of the Act in relation to the Republic of Hungary.  Regulation 4 of those regulations provides that the Act applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary.  A copy of the Treaty is set out in the schedule to the regulations.

26                  Section 11(6) of the Act, which must be read in conjunction with s 11(1), provides:

“For the purpose of determining under sub section 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).”

27                  Section 19 of the Act deals with the determination by a magistrate of eligibility for surrender.  That section relevantly provides as follows:

“Determination of eligibility for surrender

(1)  Where:

(a)       a person is on remand under section 15;

(b)       the Attorney-General has given a notice under subsection 16 (1) in relation to the person;

(c)       an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)       the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(2)       For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)       the supporting documents in relation to the offence have been produced to the magistrate;

(b)       where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents—those documents have been produced to the magistrate;

(c)       the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)       the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(3)       In paragraph (2) (a), “supporting documents”, in relation to an extradition offence, means:

(a)       if the offence is an offence of which the person is accused—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;

(b)       if the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:

            (i)      the conviction;

            (ii)     the sentence imposed or the intention to impose a sentence; and

            (iii)    the extent to which a sentence imposed has not been carried out; and

(c)        in any case:

            (i)      a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

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

(4)       Where, in the proceedings:

(a)       a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b)       the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.

(5)       In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

…

(9)       Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a)       by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5);

(b)       inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21 (1); and

(c)       record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.”

28                  Section 10(2) of the Act provides:

(2)       A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.”

That definition must be borne in mind when considering whether the requirements of s 19(3)(c)(ii) of the Act have been met.

29                  Section 21 of the Act provides for the review of a magistrate’s order under s 19(9).  That section relevantly provides:

“(1)  Where a magistrate of a State or Territory makes an order under subsection 19 (9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a)       in the case of an order under subsection 19 (9)—the person; or

(b)       in the case of an order under subsection 19 (10)—the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2)       The Court may, by order:

(a)       confirm the order of the magistrate; or

(b)       quash the order and direct a magistrate to:

            (i)        in the case of an order under subsection 19 (9)—order the release of the person; or

            (ii)       in the case of an order under subsection 19 (10)—order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5).

…”

30                  Section 5 of the Act provides a definition of “extradition country” as any country declared by the regulations to be an extradition country.  The Republic of Hungary is an “extradition country” for the purposes of the Act.  Section 5 also defines the term “extradition offence” as an offence for which the maximum penalty is imprisonment for a period of not less than 12 months.

31                  Section 6 provides for a definition of the term “extraditable person” which, having regard to the decision of the High Court in Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528, is of no present relevance.  As a result of that decision, whether or not the requirements of s 6 are met is a matter for the Attorney-General, and not for the magistrate conducting a hearing under s 19 of the Act.

The application for review

32                  Counsel for the applicant submitted that the order of the magistrate which is the subject of this application for review should be quashed because:

·                    The “supporting documents” in relation to the offence which, pursuant to s 19(2)(a) of the Act, were required to be produced to the magistrate, had not been produced.

·                    Additional “supporting documents” which, pursuant to s 11(6) of the Act and Art 5 par 2 of the Treaty, were required to be produced to the magistrate, had not been produced.

·                    The magistrate erred in law in granting the Republic of Hungary an adjournment to allow the deficiencies in the “Certificate” to be remedied.

33                  I propose to deal with these grounds in the order in which they are set out above.

Has the Republic of Hungary complied with the requirements of s 19(2)(a) of the Act?

34                  As noted earlier the expression “supporting documents” is defined in s 19(3) of the Act.  In order to comply with the requirements of s 19(2)(a) the Republic of Hungary was required to produce to the magistrate the following documents:

·                    a duly authenticated warrant issued by the extradition country for the arrest of the applicant, or a duly authenticated copy of such a warrant – s 19(3)(a).

·                    a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of the offence – s 19(3)(c)(i), and

·                    a duly authenticated statement in writing setting out the conduct constituting the offence – s 19(3)(c)(ii).

35                  The principles which govern the operation of s 19 of the Act are set out in Director of Public Prosecutions (Cth) v Kainhofer (supra).  In a joint judgment, Brennan CJ and Dawson and McHugh JJ observed at 539:

“The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the “supporting documents in relation to the offence” produced to the magistrate and the description of “supporting documents” in sub-s (3).”

36                  There was no dispute before me that a duly authenticated warrant for the arrest of Professor Tímár had been produced to the magistrate.  Counsel for Professor Tímár submitted, however, that the Republic of Hungary had failed to produce to the magistrate a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence, as required by s 19(3)(c)(i), and a duly authenticated statement in writing setting out the conduct constituting the offence, as required by s 19(3)(c)(ii).

37                  The primary argument advanced in support of this submission was that any “duly authenticated statement” produced to the magistrate in order to meet the requirements of ss 19(3)(c)(i) and (ii) had to be a document or documents separate from the duly authenticated warrant required to be produced pursuant to s 19(3)(a).  This conclusion was said to derive from the structure of the Act, having regard to the separate references to “a duly authenticated warrant” in s 19(3)(a), and a “duly authenticated statement” in ss 19(3)(c)(i) and (ii).

38                  A second argument advanced in support of this submission was that the bill of indictment which was produced to the magistrate could not meet the description of a “duly authenticated statement” of the type required by ss 19(3)(c)(i) and (ii).  This argument was founded entirely upon the decision of Spender J in Todhunter v Attorney-General (Cth) (1994) 52 FCR 228, to which I shall return. 

39                  I am unable to accept the submission in either of its forms. 

40                  As regards the primary argument, I can see no reason in principle why an extradition country should not be able to rely upon the contents of a duly authenticated warrant produced pursuant to s 19(3)(a) of the Act to meet the requirements of s 19(3)(c). 

41                  Almost this very point was considered by a Full Court of this Court in Wiest v Director of Public Prosecutions (1988) 23 FCR 472.  That was a case which turned upon whether the requirement of s 17(6) of the Extradition (Foreign States) Act 1966 (Cth) (“the 1966 Act”) that there be a “duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested” was met where a statement produced to a magistrate made reference to, or incorporated information in, other documents.  These other documents included the foreign warrant, which had also been produced to the magistrate. 

42                  The document which the Federal Republic of Germany had relied upon to meet the requirements of s 17(6) of the 1966 Act was a judgment of the local court in Bonn convicting the appellant in his absence.  It was submitted that the contents of that judgment, when combined with the contents of the German warrant, were capable of meeting those requirements.

43                  Both Sheppard J (at 482-3), and Gummow J (at 519-20) rejected the submission that s 17(6) required production of a separate self-contained document, making no reference to any other material in any other document.

44                  The decision of the Full Court in Wiest was followed in Zoeller v Federal Republic of Germany (1989) 23 FCR 282.  A Full Court comprising Lockhart, Gummow and Hill JJ stated at 288-9:

“The German language part of the bundle clearly satisfied the requirement that it was a duly authenticated copy of a warrant and it was not in dispute that the warrant might also qualify as a statement in writing setting out the conduct constituting the offence and contain a statement in writing setting out a description of and the penalty applicable in respect of the relevant offence, see Wiest v Director of Public Prosecutions (1988) 86 ALR 464, per Sheppard J (at 468) and per Gummow J (at 503) which, while dealing with the predecessor to the Act, the Extradition (Foreign States) Act 1966 (Cth), is equally relevant to the present Act.”  (emphasis added)

45                  The decisions of the Full Court in Wiest and Zoeller are binding upon me.  Those decisions stand directly in the path of the applicant’s contention that a foreign warrant cannot, by itself, or in conjunction with other documents, meet the requirements of ss 19(3)(c)(i) and (ii) of the Act.  That contention is therefore rejected.

46                  Turning to the second argument, namely, that a bill of indictment such as that produced to the magistrate in the present case could not satisfy the requirements of ss 19(3)(c)(i) and (ii) of the Act; that conclusion was said to be supported by the decision of Spender J in Todhunter v Attorney-General (Cth) (supra). 

47                  Todhunter was a case in which the applicant was the subject of an extradition request by the United States of America.  It is important to note that at the relevant time the process of extradition from Australia to the United States was governed by a treaty which imposed upon the requesting State an obligation requiring the request to be:

“supported by a description of the facts, by way of affidavit, statement or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.” (emphasis added)

48                  No obligation of that type is imposed upon the Republic of Hungary by the Act or the regulations.  It was in the context of the particular requirement set out in the Treaty governing extradition between Australia and the United States that Spender J observed at 251:

“In my opinion the indictment cannot provide the information necessary for the purpose of Art XI(3)(c).  Such a document is not a “description of facts by way of affidavit, statement of declaration”.”

49                  Todhunter went on appeal to the Full Court – Todhunter v United States of America (1995) 57 FCR 70.  Nothing in the judgment of the Full Court casts any doubt upon Spender J’s conclusion that, in the context of extradition to the United States, an indictment could not satisfy the requirement that the request be supported by a “description of facts by way of affidavit, statement or declaration”.  That in itself is scarcely surprising. 

50                  Spender J was surely correct in holding that the expression “affidavit, statement or declaration” did not include an indictment.  A “statement” in the context of that expression is a form of proof, albeit one which may encompass hearsay.  The form of proof must bear upon whether there are “reasonable grounds for believing” that an offence has been committed, and that the person sought committed it.  An indictment is nothing more than an accusation.  It does not purport to be a form of proof, and was never prepared with that objective in mind.

51                  Recently, in De Bruyn v Republic of South Africa [1999] FCA 1344 a Full Court of this Court by majority (Hill and Hely JJ) expressly held that a draft indictment could constitute “a duly authenticated statement in writing setting out the conduct constituting the offence”.  In that case the documents produced to the magistrate included both the draft indictment and a series of sworn statements and documentary exhibits setting out the details of the offences alleged against the appellant.  Their Honours regarded the draft indictment as being the critical document in determining whether the requirements of s 19(3)(c)(ii), and therefore s 19(2)(a), had been met.  They observed at par 18:

“If the only document which South Africa produced which was capable of satisfying [s 19(3)(c)(ii)] was the draft indictment, then it would have been sufficient for that purpose.”

52                  The statements and documentary exhibits which set out the evidence by which the allegations were to be proved were regarded as mere surplusage, irrelevant to the task which confronted the magistrate, and perhaps provided only because South Africa had mistakenly sought to satisfy the test of a prima facie case which since 1997 it had no longer been required to meet.

53                  Gyles J dissented.  His Honour did not, however, conclude that a draft indictment could not satisfy the requirements of s 19(3)(c)(ii) (as interpreted by reference to s 10(2)).  He held, rather, that the particular draft indictment did not satisfy those requirements.  That was because it did not descend to the actual conduct alleged to constitute the offence, but was limited to a generalised abstraction from underlying conduct not particularised.

54                  It is a far cry from the reasoning of Spender J in Todhunter to conclude that an indictment is incapable in law of satisfying the requirements of ss 19(3)(c)(i) and (ii) of the Act.  In my opinion an indictment is perfectly capable of constituting a duly authenticated statement in writing setting out the requisite matters contained within those provisions.  The critical question is whether, in any given case, it meets those requirements.

55                  When one examines carefully the indictment dated 1 February 1995, and adds to it the warrant of 28 May 1997, there is no doubt in my mind that, subject to one matter to be addressed shortly, the Republic of Hungary has produced to the magistrate a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence, and setting out the conduct (viz, the acts or omissions) constituting the offence. 

56                  The bill of indictment, in particular, is a very detailed document, going far beyond what an indictment in this country would ordinarily contain.  It sets out in copious detail the acts or omissions by which the offence is alleged to have been committed.  It identifies with precision the applicant’s role in hiring those who were to set fire to the holiday home.  It also identifies succinctly, but in my view adequately, his role in arranging for his relatives to cause a fraudulent claim to be made upon the insurer.  It contains more than mere generalised assertions.  It specifies “the time, place and manner of the defendant’s acts or omissions” in accordance with the principles laid down in Johnson v Miller (1937) 59 CLR 467 at 486 and 490 per Dixon J, assuming it were required to meet that test.

57                  The one matter which initially caused me some concern was the fact that a degree of uncertainty may have been introduced as to “the penalty applicable in respect of the offence” by reason of the apparent disconformity between the initial “Certificate” which stated that damage caused by fraud is “significant” when it exceeds HUF 1,000,000, and the latter version of the “Certificate” which stated that such damage was “considerable” when it exceeds HUF 200,000. 

58                  Plainly the applicant is entitled to know “the penalty applicable in respect of the offence” for which his extradition is sought.  Under Hungarian law, the penalty which is applicable depends upon the extent of the damage caused by the fraud.  At the time that the alleged offence was committed the range of one to five years was triggered by a fraud exceeding HUF 200,000.  However, this range of penalties is not now triggered unless the fraud exceeds HUF 1,000,000.  Does it follow that there is doubt or uncertainty as to the “penalty applicable in relation to the offence”?

59                  In my opinion the apparent disconformity between the two “Certificates” does not mean that the requesting State has failed to set out in a duly authenticated statement in writing the penalty applicable in respect of the offence.  It is clear that the penalty for that offence is between one and five years’ imprisonment.  That is so irrespective of whether Professor Tímár’s trial, if there be a trial, is conducted upon the basis of the figure of HUF 200,000 which prevailed in 1992, or the figure of HUF 1,000,000 which prevails today. 

60                  It must be remembered that the case against the applicant is that he defrauded the insurer of approximately HUF 2,000,000.  While it would have been preferable had the Republic of Hungary indicated with unmistakable clarity which of the two amounts identified in the “Certificates” would be applicable to any future trial, its failure to have done so does not, in my opinion, constitute a failure to comply with s 19 of the Act. 

61                  In arriving at this conclusion, I bear in mind the observation of Gummow J in Wiest (supra) at 519:

“An inquiry as to whether a proffered statement meets the description of [the requirement relating to supporting documents] presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies: Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79.”

62                  It is of course correct to say that the requirements of the Act should be construed strictly, and with a view to ensuring that the personal liberty of an individual whose extradition is sought is protected to the utmost – Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-1 per Hill J.  The Act affects the liberty of the subject in a dramatic fashion.  The consequences of extradition may well be far more serious than being charged with having committed the equivalent offence in Australia – De Bruyn v Republic of South Africa (supra) at par 28 per Gyles J.

63                  It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective.  Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest, a matter for practical judgment.  Such documents must, in my opinion, be read fairly, and not perversely. 

64                  It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition.  The test must be whether the document relied upon sets out the essential elements of each offence for which surrender is sought, clearly identifies the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof and gives sufficient particularity to ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made – see Klepp v Gibb (1988) 81 ALR 383 at 393.  Substantial compliance with these requirements, as with requirements under the Treaty, is what is necessary – not strict and absolute compliance – Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 401 and 406.

65                  In my opinion the requirements set out in s 19(2)(c) of the Act are sufficiently met by the combination of documents produced to the magistrate in this case.

Were the requirements of Art 5 par 2 of the Treaty met?

66                  It has already been seen that s 11(1) of the Act provides that the regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty, and that such regulations have been made which modify the operation of the Act in relation to the Republic of Hungary. 

67                  Section 11(6) of the Act, which must be read in conjunction with s 11(1), is somewhat difficult to follow.  On the one hand, the apparent object of the Act is to confine the extradition hearing before a magistrate to the determination of specified issues, which are set out in s 19(2), while all other matters, whether arising under the Act, or by virtue of a treaty, are the concern of the Attorney-General. 

68                  Professor EP Aughterson in Extradition: Australian Law and Procedure (1995) comments (at p 28):

“Section 11(6) assists in achieving that objective by providing, in effect, that any “limitation, condition, qualification or exception” to the Act, consequent upon an agreement with a foreign state, does not expand magistrates’ powers.  For example, should an additional exception to extradition arise by treaty, a consideration of whether or not that exception applies in a given case falls to be determined by the Attorney-General.”

The author then sets out the terms of s 11(6), and continues (at pp 28-9):

“The difficulty is that some matters which do fall within a magistrate’s jurisdiction, such as extradition objections as defined in s 7, are also dealt with in treaties, but sometimes with modifications.  For example, while s 7 establishes an objection to extradition where the person has previously been punished, acquitted or pardoned for the offence in the requesting state or Australia, some treaty provisions take a different tack; barring extradition where there have been prior proceedings in the requested state or a third state or, in other treaties, in the requested state alone.  Accordingly, a treaty provision might expand or compress the matters which properly fall within the province of a magistrate.  In those circumstances, how is s 11(6) to be interpreted?  Disallowing the magistrate to consider “any matter other than” a matter set out in s 19 could be construed strictly, not only confining the magistrate to a consideration of the particular matters appearing in s 19, but also restricting their application according to the terms of the legislation.  Accordingly, taking the example of “extradition objections”, the magistrate would be required to consider those objections as defined in s 7 of the Act, regardless of whether they have been modified or even abrogated by treaty.  If extradition was thereby refused, it could amount to a breach of a treaty obligation.  It is to be imagined that if that strict approach were intended, it might have been more clearly expressed.  Alternatively, s 11(6) may simply mean that a magistrate cannot consider additional matters, but that the matters properly within jurisdiction can be limited or modified.  That interpretation would avoid prospective breaches of treaty obligations and, therefore, should be preferred.  On that basis, again using the example of “extradition objections”, though that term is defined in s 7, s 11(1), where appropriate, allows for a modification of the statutory definition.”  (footnotes omitted)

Professor Aughterson then states at 207-8:

“Though additional preconditions to extradition may be prescribed by regulations incorporating a treaty or other arrangement, generally they are not the concern of the magistrate.  Rather, they are matters for the Attorney-General.  That is because s 11(6) provides that any “limitation, condition, qualification or exception” to the Act arising by regulation, does not have the effect of “requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(a), (b), (c) or (d)”.”

69                  Counsel for the applicant submitted that s 11(6), upon its proper construction, requires a magistrate to give consideration to the sufficiency of documents required pursuant to the terms of a treaty to accompany a request for extradition, and not just those required by s 19(2) to be produced at a s 19 hearing.  I did not understand counsel for the respondent to demur from this submission though, it must be said, it does not seem to me to accord precisely with Professor Aughterson’s analysis. 

70                  If counsel for the applicant are correct in their construction of s 11(6) of the Act, the Republic of Hungary was required to satisfy the magistrate that the documents which were produced met the requirements of Art 5 par 2 of the Treaty rather than the requirements of s 19(3)(c) of the Act.

71                  Alternatively, the Republic of Hungary was required to satisfy the magistrate that the requirements of both the Act and the Treaty were met.

72                  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)       in all cases, 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;

…”

73                  It can readily be seen that there is little difference between the “supporting documents” required to be produced pursuant to s 19 of the Act, and the documents required to accompany the request for extradition pursuant to Art 5 par 2 of the Treaty.  When one has regard to the definition of “conduct constituting an offence” contained in s 10(2) of the Act it becomes clear that, so far as the Republic of Hungary is concerned, the documents referred to in both the Act and the Treaty are virtually identical. 

74                  It is true that Art 5 par 2(e) of the Treaty requires the production of a statement of “any law relating to the limitation of proceedings”.  This is not a requirement of s 19 of the Act.  The Republic of Hungary did, however, produce to the magistrate such a statement when it produced the “Certificate” dealing with “Prescription of punishability”.  Nothing, therefore, turns upon that requirement in the present case.

75                  It is not at all clear to me that s 11(6) of the Act operates, as counsel for the applicant submitted, to require the Republic of Hungary to produce to the magistrate those documents identified in Art 5 par 2 of the Treaty rather than those set out specifically as “supporting documents” in s 19(3) of the Act.

76                  Counsel submitted that there was some support for their contention in Director of Public Prosecutions (Cth) v Kainhofer (supra) where Gummow J stated at 552:

“There must also be produced to the magistrate “supporting documents” in relation to the offence” (s 19(2)(a)) and such other documents as required to satisfy any limitation, condition, exception or qualification subject to which the Act applies in relation to the extradition country (s 19(2)(b)); nothing turns upon par (b) for the purposes of this appeal.”  (emphasis added)

77                  Whether his Honour had in mind in this passage that s 11(6) should operate in the manner for which the applicant contends is problematic.

78                  In Papazoglou v Republic of Philippines (1997) 74 FCR 108 a Full Court of this Court stated at 130:

“It is clear that certain issues relating to extradition applications are reserved exclusively for the consideration of the Attorney-General, rather than a magistrate acting under s 19 (or, for that matter, a court reviewing the magistrate’s order under s 21).  For example, in proceedings under s 19 of the Extradition Act, s 11(6) provides that no “limitation, condition, qualification or exception” contained in a bilateral extradition treaty has the effect of requiring or permitting a magistrate to be satisfied of any matter other than those set out in s 19(2).”

79                  This passage was referred to with approval by another Full Court of this Court in Federal Republic of Germany v Parker (1998) 84 FCR 323 at 339.  Both Papazoglou and Parker seem to me to suggest that the combined effect of ss 11(6) and 19(2)(b) is to impose an obligation upon the Republic of Hungary to produce to the magistrate the documents set out in s 19(3) of the Act together with such documents as the regulations specifically provide must be produced, but no others.

80                  Article 5 of the Treaty deals with the form in which requests for extradition shall be made.  It identifies the documents which must be submitted together with any request for extradition.  Article 5 does not, in my view, either expressly or by implication, require that the documents identified in pars 2(a) and (e) be produced to the magistrate.

81                  The effect of the decision of the High Court in Kainhofer (supra) is to make it clear that the exercise of those functions by a magistrate is quite separate from the exercise of other functions under the Act performed by the Attorney-General. 

82                  It is no part of the task of a magistrate hearing an application pursuant to s 19 of the Act to determine whether the requesting State has met an obligation imposed under a treaty in relation to documents required to accompany a request for extradition.  The decision of the Full Court in Federal Republic of Germany v Parker (supra) seems to me to provide support for this proposition.  See also Harris v Attorney-General (Cth) (supra) at 412-3 which is to the same effect.

83                  It follows that it is no part of the function of this Court on review of the exercise of a magistrate’s powers under s 19 of the Act to consider whether the requirements of Art 5 par 2 of the Treaty have been met.

84                  If my interpretation of s 11(6) of the Act is incorrect, I would nonetheless hold that there were produced to the magistrate in this case all of the documents referred in Art 5 pars 2(a) and (e) of the Treaty.  I would apply the principles enunciated by the Full Court in Harris v Attorney-General (Cth) (supra) at 401 and 406 in coming to that conclusion.

The decision to adjourn the proceedings

85                  Section 19(4) of the Act provides:

“Where, in the proceedings:

(a)               a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b)               the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.”

86                  Counsel for the applicant submitted that the magistrate had erred in finding that the deficiencies which he had identified in the original “Certificate” were of a “minor” nature.  They submitted that the Republic of Hungary should not have been given the opportunity to remedy those deficiencies.  In my opinion, this argument cannot succeed. 

87                  The deficiencies identified by the magistrate when he adjourned the proceeding involved infelicities of expression in two phrases contained in the original “Certificate”.  The meaning of each of those phrases was clarified by the letter of 31 March 1999.  It cannot seriously be contended that it was not open to the magistrate to conclude that the deficiencies were “of a minor nature”.  They plainly were.  This ground of review must be rejected.

Conclusion

88                  The application for review of the magistrate’s order of 22 April 1999 committing the applicant to prison to await surrender under a surrender warrant must be dismissed.  Pursuant to s 21(2)(a) of the Act, that order is confirmed.  The applicant must pay the respondent’s costs of this application.

Associate:

Dated:              5 November 1999