Karsten v Federal Republic of Germany [2008] FCA 331

EXTRADITION – Extradition Act 1988 (Cth) – extradition offence – extraditable person – whether a warrant is “in force” – parity of sentencing – no reason to go behind the face of the warrant and extradition request – extraditable person – qualifying extradition offence – whether magistrate informed of consent – abuse of process

Extradition Act 1988 (Cth), ss 5, 6, 16, 18, 22

Federal Court of Australia Act 1976 (Cth), s 31A

Bertran v Vanstone [2000] FCA 359, 173 ALR 63 followed

Brock v Minister for Justice & Customs [2007] FCA 2091 considered

Brock v United States of America [2007] FCAFC 3, 157 FCR 121 considered

Buck v Bavone (1976) 135 CLR 110 followed

Cabal v United Mexican States (No 3) [2000] FCA 1204, 186 ALR 188 considered

Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 followed

Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35, 185 CLR 528 followed

Dutton v O’Shane [2003] FCAFC 195, 132 FCR 352 followed

Harris v Attorney-General (Cth) (1994) 52 FCR 386 followed

Minister for Home Affairs v Tervonen [2008] FCAFC 24 followed

R v Karsten [2007] ACTSC 20, 208 FLR 324 cited

Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191, 99 ALD 235 followed

Tervonen v Minister for Justice & Customs (No 2) [2007] FCA 1684, 98 ALD 589 followed

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 followed

Vasiljkovic v Commonwealth [2006] HCA 40, 227 CLR 614 followed

CHRISTOPH KARSTEN v FEDERAL REPUBLIC OF GERMANY AND MINISTER FOR JUSTICE & CUSTOMS

ACD 31 OF 2007

FLICK J

14 March 2008

Canberra

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 31 OF 2007

BETWEEN:

CHRISTOPH KARSTEN

Applicant

AND:

FEDERAL REPUBLIC OF GERMANY

First Respondent

MINISTER FOR JUSTICE & CUSTOMS

Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	14 march 2008
WHERE MADE:	canberra

THE ORDERS OF THE COURT ARE:

1. The name of the Second Respondent be amended to “Minister for Home Affairs”.

2. The Application filed on 17 July 2007, as amended by way of a Further Amended Application filed on 7 November 2007, be dismissed.

3. The Applicant to pay the costs of the Second Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 31 OF 2007

BETWEEN:

CHRISTOPH KARSTEN

Applicant

AND:

FEDERAL REPUBLIC OF GERMANY

First Respondent

MINISTER FOR JUSTICE & CUSTOMS

Second Respondent

JUDGE:	FLICK J
DATE:	14 march 2008
PLACE:	canberra

REASONS FOR JUDGMENT

1 The present proceedings were first commenced by the Applicant by way of an Application filed on 17 July 2007. On 7 November 2007 there was filed a Further Amended Application.

2 The Further Amended Application seeks to challenge a notice issued under s 16 of the Extradition Act 1988 (Cth) on 24 October 2006 and a determination that the Applicant be surrendered pursuant to s 22 of that Act. The Applicant contends that for the purposes of the Act that:

(i) he is not an “extraditable person” within ss 6 and 16;

(ii) the offence in respect of which extradition is sought is not an “extradition offence” within ss 5 and 16; and

(iii) he is not an “eligible person” within s 22.

These contentions, if made out, are said to constitute jurisdictional error on the part of the Respondent Minister.

3 On 19 February 2008 a Further Amended Notice of Motion was filed on behalf of the Respondent Minister seeking the dismissal of the Further Amended Application. It is that Motion which is presently before the Court.

4 It is considered that each of the Applicant’s contentions should be rejected and that the orders as sought in the Respondent Minister’s Motion should be made.

The Facts: An Overview

5 Mr Christoph Karsten was born in January 1966 in Berlin and is a German national.

6 A warrant of arrest for Mr Karsten dated 16 September 2003 was issued by the Hannover District Court. The warrant recited that in late 1997 or early 1998 the Applicant agreed with a Mr Michael Schmeer to find someone who would be prepared to murder their former wives. The warrant further recited that both the Applicant and Mr Schmeer were both divorced at the time and were unable to resolve problems relating to alimony and child visitation rights. The warrant orders that the Applicant was to be remanded in custody on the ground that he was “strongly suspected of attempted incitement to murder”.

7 On 24 October 2006 the then Minister for Justice and Customs issued a notice under s 16(1) of the Extradition Act 1988 (Cth) stating that an extradition request had been received from the Federal Republic of Germany. That notice identified the “extradition offence” as being:

Attempted incitement to commit murder, contrary to sections 211 and 30 of the German Criminal Code.

On 6 December 2006 a warrant for arrest was issued under s 12(1).

8 A warrant under s 18(2) was thereafter issued on 20 December 2006 by Magistrate Madden, a magistrate of the Australian Capital Territory. On the same day a letter was forwarded by the Magistrate to the then Attorney-General (the Honourable Phillip Ruddock) identifying the Applicant and stating:

As required by s 18(2)(b)(ii) of the Extradition Act 1988 I advise that on 20 December 2006 the abovenamed consented to being surrendered to the Federal Republic of Germany in relation to the following offence:

1. attempted incitement to commit murder contrary to sections 211 and 30 of the German Criminal Code (1 count).

I enclose a copy of the warrant under subsection 18(2)(b)(i) that I signed today.

9 On 5 July 2007 the Applicant was advised that the Minister had determined under s 22 that the Applicant was to be surrendered to Germany and that a warrant had been issued for his surrender.

The Extradition Act 1988 (Cth)

10 The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389:

The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.

This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29], 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35, 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ.

11 The present proceedings seek to focus attention upon the decision to issue a notice pursuant to s 16 and the determination pursuant to s 22. Section 16(1) and (2) provide as follows:

(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) The Attorney-General shall not give the notice:

(a) unless the Attorney-General is of the opinion:

(i) that the person is an extraditable person in relation to the extradition country; and

(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

12 For present purposes it is relevant to note that the terms “extradition offence” and “extraditable person” are both further defined by ss 5 and 6 respectively. Section 5 defines the term “extradition offence”:

“extradition offence” means:

(a) in relation to a country other than Australia—an offence against a law of the country:

(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

(ii) if the offence does not carry a penalty under the law of the country—the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or

(b) in relation to Australia or a part of Australia—an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.

Section 6 defines an “extraditable person” as follows:

Where:

(a) either:

(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or

(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:

(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or

(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;

(b) the offence or any of the offences is an extradition offence in relation to the country; and

the person is, for the purposes of this Act, an extraditable person in relation to the country.

13 Section 22 does not operate by reference to whether a person is an “extraditable person” or a person who has committed an “extradition offence”. Section 22 uses different terminology, namely that of an “eligible person” and a “qualifying extradition offence.” Those latter two phrases are defined. Section 22(1) and (2) thus provide as follows:

(1) In this section:

“eligible person” means a person who has been committed to prison:

(a) by order of a magistrate made under section 18; or

(b) by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.

“qualifying extradition offence”, in relation to an eligible person, means any extradition offence:

(a) if paragraph (a) of the definition of eligible personapplies—in relation to which the person consented in accordance with section 18; or

(b) if paragraph (b) of the definition of eligible personapplies—in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).

(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.

14 Section 16(2)(a), it will be noted, confers power by reference to whether the Attorney-General forms an “opinion”; and s 22(3) refers to the Attorney-General being “satisfied” of the matters there specified. On behalf of the Respondent Minister, reference was made to the confined ambit of judicial review available where powers are so conferred: Buck v Bavone (1976) 135 CLR 110. Gibbs J there observed at 118–19:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.

15 In the present extradition process, an issue which assumes significance was the making of an order under s 18. That section provides as follows:

Consent to surrender

(1) Where:

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

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

the person may inform a magistrate that the person consents to being surrendered to the extradition country concerned in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought by that country.

(2) Where the person informs the magistrate that he or she so consents, the magistrate shall, unless the magistrate has reason to believe that the consent was not given voluntarily:

(a) advise the person that the effect of so consenting will be that:

(i) the person will be committed to prison without any proceedings being conducted under section 19 to determine whether the person is eligible for surrender in relation to any extradition offence; and

(ii) the person will, if the Attorney-General issues a surrender warrant or a temporary surrender warrant, be surrendered to the extradition country; and

(b)if, after the person has been advised as mentioned in paragraph (a), the person again consents to being surrendered:

(i) 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); and

(ii) advise the Attorney-General in writing of the offence or the offences in respect of which the person has so consented.

An Extraditable Person?

16 It is difficult to conclude that the Applicant does not fall within the terms of s 6(a)(i) of the Extradition Act, namely a person in respect of whom there is “a warrant … in force … in relation to an offence … against the law” of Germany.

17 The warrant is that dated 16 September 2003. The Applicant by his Further Amended Application seeks to place emphasis, not so much upon whether the warrant was issued, but rather upon a contention as to whether the warrant was “in force”. That contention is rejected.

18 The warrant as issued does not on its face disclose any limitation as to the period of time during which it is to operate. The manner of operation of a warrant issued under a foreign law, including any limitation as to the period of time during which it is to operate, is a question of fact. As contended by the Respondent Minister, the existence of the warrant and the absence of any limitation upon its face provided a sound basis upon which the Respondent Minister could lawfully form an “opinion” for the purposes of s 16(2): cf Buck v Bavone. Moreover, the request for extradition, being a document also before the Minister when giving the notice, also proceeds upon the assumption that the warrant issued in September 2003 remained in force when the request was being made in April 2006.

19 The approach urged upon the Court by Mr Karsten, namely an invitation to go behind the face of both the request and (more importantly) the warrant itself is an invitation which should be rejected. Section 16(2), framed as it is in terms of an “opinion”, should not be construed as requiring the Attorney-General or the Minister to become an expert in foreign law and construed in a manner which has the potential to frustrate the discharge by Australia of its obligations under extradition treaties: Tervonen v Minister for Justice & Customs (No 2) [2007] FCA 1684, 98 ALD 589. Rares J there observed:

[38] In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word ‘accused’ in s 6(a)(i) of the Act, noting:

It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.

[39] The Attorney-General cannot be expected to be an expert in foreign law: Williams v Minister for Justice and Customs 157 FCR 286 at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer (1995) 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person.

His Honour continued:

[40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested.

…

[42] Each warrant, on its face, was termed a ‘warrant’. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer (1995) 185 CLR 528 at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i).

An appeal from this decision has been allowed in part, although it was not necessary for the Full Court to make any comment in relation to the above observations of the learned trial judge: Minister for Home Affairs v Tervonen [2008] FCAFC 24. See also Cabal v United Mexican States (No 3) [2000] FCA 1204 at [149] and [153], 186 ALR 188 per French J.

20 The statutory expression “in force” is to be construed as requiring consideration simply to be given to “whether a person had been accused of a criminal offence and whether that accusation had led to the initiation of criminal proceedings”: Bertran v Vanstone [2000] FCA 359 at [55], 173 ALR 63.

21 For the purposes of the Motion, any challenge to the manner in which the Minister exercised the power conferred by s 16(2) on this basis has no reasonable prospects of success.

22 Moreover, such further evidence as is now before the Court on the present Motion seems to amply support a finding that the warrant remains in force and that there is no reason to question that conclusion, even now. Thus, an “Opinion” dated 16 April 2007, as subsequently provided under the signature of the Senior Chief Public Prosecutor for the Hannover Department of Public Prosecutions, states in part as follows:

…The detention order by the Regional Court of Hannover dated September 16, 2003 was generated in the manner provided by law and fulfils the rules of the StPO [German Code of Criminal Procedure] under formal aspects as well.

The allegation of the prosecuted person that the detention order had expired in December 2005 is not true. According to StPO, an order for detention awaiting trial shall only become invalid, when it is lifted by a court…

That Opinion stands in contrast to an affidavit filed in proceedings in the Australian Capital Territory by Mr Karsten, being an annexure to an Affidavit filed in the present proceedings in this Court, that asserts:

… The warrant provided with the extradition request expired in December 2005 according to my sources …

No further details were provided nor were the “sources” identified. For present purposes, it is considered that no conclusion is open other than that the warrant remains “in force”. Further written submissions filed on 5 March 2008 by Mr Karsten seek to annex further materials. Some of these materials are in German and have not been translated into English. To the extent that the Court has been able to consider those materials, the conclusion remains the same.

23 Notwithstanding such consideration as has been given to materials that were not before the Minister when he reached his “opinion” for the purposes of s 16, it must be recalled that the inquiry should be directed to a review of those materials that were before the Minister, being the basis upon which he formed his “opinion”. Confined to those materials, the Minister had a sound basis upon which he could issue the notice.

24 Any deferral of the hearing of the present Motion to permit the Applicant a yet further opportunity to support his contention is not considered warranted. The Applicant has made numerous references in the past to a desire to translate documents from German to English to advance his case. It is, however, considered that he has had ample opportunity to file such evidence as he considers relevant. The opportunity in fact extended to Mr Karsten to file further materials questioning whether or not the warrant remains “in force”, or any other matter, has largely been an opportunity extended to an unrepresented party to determine whether those further materials may have disclosed some error not otherwise apparent. Given that the focus of any review of the decision of the Minister to issue the notice in October 2006 must be a scrutiny of the materials then before the Minister, being the materials upon which he formed his “opinion”, any further pursuit of this factual matter is considered neither relevant nor warranted.

An Extradition Offence: “Not less than 12 Months”?

25 The Applicant further seeks to focus attention upon the requirement that an “extradition offence” is relevantly an offence for which the maximum penalty was “imprisonment, or other deprivation of liberty, for a period of not less than 12 months”. The Applicant’s contention is that the Respondent Minister “could not be satisfied that the statutory requirement was satisfied”. Section 16, it should be noted, employs the language of an “opinion” being formed that the conduct of a person constitutes an “extradition offence”.

26 Again, it is difficult to see how the Applicant’s contention can be sustained. The Warrant of Arrest issued in September 2003 states in part as follows:

The actions of the accused constitute the criminal offence of attempted incitement to murder under Paras. 211, 30 Section 1, 49 Section 1 of the German Criminal Code.

The wording of the above provisions reads as follows, insofar as it is relevant in this case:

Para. 2.11 Section 1

The murderer shall be sentenced to life imprisonment.

…

Para. 30 Section 1 Sentence 1 and 2

Whoever attempts to induce or incite another to commit a serious criminal offence shall be punished according to the provisions governing an attempt to commit a serious criminal offence. However, the punishment shall be mitigated pursuant to Para. 49 Section 1.

Para. 49 Section 1 No. 1

It mitigation is prescribed or permitted under this provision, then the following shall apply to such mitigation:

1. Imprisonment for a term of not less than three years shall be substituted for life imprisonment.

Proceedings are not subject to a statute of limitations.

Given the terms of the warrant, the conclusion may readily be reached that the offence for which the warrant against the Applicant was issued was an offence for which the maximum penalty was “imprisonment, or other deprivation of liberty, for a period of not less than 12 months” within the meaning of the definition of an “extradition offence” in s 5 of the Extradition Act. The request for extradition dated 21 April 2006 also stated that:

… the minimum punishment provided by law shall, in the case at hand, amount to three years of imprisonment. The maximum imprisonment is fifteen years.

27 As at the date when the s 16 notice was given, the material then available provided a sound basis for the requisite “opinion” being formed. A discrete submission advanced on behalf of the Respondent Minister again focused attention upon the confined ambit of such judicial review as is available: Buck v Bavone. Section 16(2)(a)(ii) — as with s 16(2)(a)(i) — again vests the decision-making function in the Attorney (or the Minister) if he is “of the opinion” that the person involved has committed an “extradition offence.” That submission is again accepted.

28 A contrary conclusion advanced by Mr Karsten was based upon what was said to be a discrepancy between what the German Criminal Code may have provided in terms, and the sentences in fact imposed upon others involved in the events giving rise to the charges against him. That “parity of sentencing” as urged by Mr Karsten dictated a different conclusion. It is considered that the “opinion” formed on 24 October 2006 was one open to be reached by the Minister on the materials before him and one which should be accepted for the purposes of the present Motion.

29 Albeit subsequent to the point in time when the s 16 notice was issued on 24 October 2006, it may further be noted that there was no later reason to revisit that conclusion. The “Opinion” provided in April 2007 thus also states in part as follows:

… German police officers are not authorised to make offers to terminate criminal procedures.

Additionally, execution of imprisonment may, under Section 56 StPO, only be suspended on probation, when it does not exceed 2 years. In the case concerned here however, the minimum punishment provided by law is 3 years of imprisonment. One could only go below this when other circumstances, which are regulated by law, come up. Such specific circumstances are not recognisable, however. For this reason, probationary suspension of the imprisonment to be imposed when a sentence is passed would, at the current state of knowledge, not be possible …

30 In any event, the approach being urged upon the Court by Mr Karsten to again impose a requirement upon the Attorney-General or the Minister to inquire into the penalty likely to be imposed is an approach which should be rejected. The definition of “extradition offence”, it has been said, is “not concerned with whether there are other alternate and lesser possible penalties, nor with the actual penalty likely to be imposed on the person whose extradition is being sought”: Dutton v O’Shane [2003] FCAFC 195 at [41], 132 FCR 352 at 362 per Finn and Dowsett JJ.

31 It is thus considered that there is no doubt that the offence for which extradition has been sought is in respect of an “extradition offence” as defined in s 5 of the Extradition Act or, alternatively, there was and remains a basis upon which the Respondent Minister could lawfully form that “opinion”.

An Eligible Person: Sections 18 and 22?

32 It is understood that the Applicant’s contention in respect of the determination made under s 22 is that he was not an “eligible person” because “the applicant was not the subject of a valid order of a magistrate as the applicant’s consent was not given voluntarily but under an operative mistake of fact”.

33 The “operative mistake of fact” to which the Applicant refers has previously been the subject of submissions, including the following statement in a letter from the Applicant to a Senior Legal Officer of the Extradition Unit dated 12 March 2007:

My consent to being surrendered to the Federal Republic of Germany under s 18 of the Extradition Act 1988 was not given voluntarily.

On 26/02/07 in the Supreme Court the District Public Prosecutor described my case as unusual and Justice Connolly considered my consent as have been tricked. On 20/12/06 Magistrate Madden did not conduct or suggest any proceedings under s 19.

34 The contention of the Applicant is simply that s 22(1)(a) refers to an “order of a magistrate made under section 18” and that there was no such order because the order as made was made in circumstances where the consent of the Applicant had not been given voluntarily. An order lawfully made under s 18, upon such a contention, is a condition precedent to the making of a lawful determination pursuant to s 22.

35 There are a number of reasons why this contention of the Applicant must fail.

36 First, by its terms, s 22(1)(a) requires there to be an “order of a magistrate made under section 18”. In the present case, the order was one made pursuant to s 18(2). That subsection relevantly applies where a person “informs the magistrate that he or she so consents” and clothes the magistrate with power “unless the magistrate has reason to believe that the consent was not given voluntarily”.

37 In the present proceedings there is not understood to be any dispute as to Mr Karsten in fact informing the magistrate that he did consent. Nor is there understood to be any dispute but that the magistrate had no “reason to believe that the consent was not given voluntarily”.

38 For present purposes it may be assumed that a condition precedent to the authority of the Attorney-General to make a lawful determination under s 22(2) is the status of a person against whom such a determination is made as an “eligible person.” It may further be assumed that that status in the present proceedings requires there to have been an “order of a magistrate made under section 18.” An “order” made in excess of the jurisdiction conferred upon a magistrate by s 18, it may further be assumed, would not be an “order” at all but would be a nullity. But the power or authority conferred on the magistrate in the present proceedings is a power or authority to make an “order” where a person has “inform[ed]” the magistrate that he consents and where the magistrate has no “reason to believe that the consent was not given voluntarily”. An undisclosed absence of consent or an undisclosed basis upon which consent has ostensibly been given does not strip the magistrate of power to make an order under s 18(2)(b)(i). It may be noted that the warrant as issued under s 18(2) recited in part as follows:

WHEREAS:

…

(d) I have no reason to believe that the consent was not given voluntarily;

…

The conditions precedent to the exercise of the power conferred by s 22 would thus appear to have been satisfied.

39 Employing the language apposite to an analysis of “jurisdictional fact”, the jurisdictional facts for the purposes of s 18 would not be whether or not a person has in fact consented; the jurisdictional facts would at best be whether a person has “inform[ed] the magistrate that he or she so consents” and whether a magistrate “has reason to believe that the consent was not given voluntarily”.

40 Insofar as inquiry may be directed to the former of these matters, the difficulty confronting the Applicant is the simple fact that whether or not he consented, albeit for a mistaken reason, is not on any view of the express terms of s 18 a constraint upon the power conferred upon the magistrate. Why the Applicant informed the magistrate that he consented is of no immediate relevance; he either “inform[ed]” the magistrate of his consent or he did not. And in the present proceedings he did so inform Magistrate Madden.

41 The challenge advanced in the present proceedings focussed upon submissions as to an absence of consent. No submission was advanced in the alternative seeking to contend that the magistrate had any “reason to believe” that the consent of which he was being informed “was not given voluntarily”. The importance of a magistrate both being informed that a person consents, and not having any reason to believe that that consent “was not given voluntarily”, cannot be underestimated. And it is of importance that s 18(2) is expressed, not in terms of a magistrate having to form a positive belief that a person is consenting voluntarily, but rather is expressed in terms of being obliged to take the steps outlined in s 18(2) “unless [he] has reason to believe that the consent was not given voluntarily”. The responsibility entrusted to a magistrate is not discharged upon a person informing him of his consent; if he has reason to question whether that consent is being voluntarily given, he should thereafter satisfy himself as to the basis upon which a person is consenting. The nature and content of the responsibility of a magistrate in such circumstances need not be pursued. In the present case, no submission was advanced that the magistrate had any reason to question the voluntariness of the consent of which he was being informed. Nor has any fact or circumstance been referred to in the present proceedings which could form the basis of any such submission.

42 Whether or not either of these two fields of inquiry can be properly characterised as “jurisdictional facts” thus need not be resolved. The resolution of whether a fact is jurisdictional or not remains a matter of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 at [39], 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). Less difficulty may be experienced in characterising as a “jurisdictional fact” a question as to whether a person has informed a magistrate of his consent; greater difficulty, however, may be experienced in characterising as “jurisdictional” whether a magistrate had “reason to believe that the consent was not given voluntarily”. The potential inconvenience consequent upon construing s 18 in such a manner may be a telling reason to conclude that such matters are not “jurisdictional”: cf Brock v United States of America [2007] FCAFC 3 at [30] per Black CJ, 157 FCR 121.

43 An absence of consent (if established) — it was accepted by the Respondent Minister in the present proceedings — was, however, a consideration relevant to the exercise of discretion conferred by s 22(3)(f). And, submitted the Minister, Mr Karsten’s submission as to lack of voluntary consent was a submission in fact considered by the Minister. Given the invitations extended to Mr Karsten to make submissions prior to a determination being made pursuant to s 22, and given the content of submissions in fact made (including submissions as to his lack of consent), that submission of the Minister is accepted.

44 Second, to now seek to impugn the surrender determination made pursuant to s 22 by reason of an asserted absence of voluntary consent when the s 18 decision was made is considered to be an abuse of process.

45 At the time when the surrender determination was made under s 22 in July 2007 there had necessarily been in the present case the earlier decision of the magistrate made under s 18. That was the decision of the magistrate in December 2006.

46 Intervening, namely in February 2007, was the decision of Connolly J of the Supreme Court of the Australian Capital Territory: R v Karsten [2007] ACTSC 20, 208 FLR 324. In those proceedings Mr Karsten sought to challenge the decision of the magistrate. Justice Connolly entertained a Notice of Appeal against the decision of the magistrate. Relevant to the order made by the magistrate are the following observations of his Honour:

[5] The Extradition Act (1988) of the Commonwealth provides two routes by which the question of whether surrender will occur may proceed. By s 18, a person who has been remanded, may consent to their surrender. The matter is then laid before the Commonwealth Attorney-General for determination as to whether surrender will, in fact, occur. Or, pursuant to s 19, there may be a contested hearing in relation to whether there is eligibility to surrender.

[6] The common factual ground here is that Mr Karsten indicated his consent to being extradited and, as I understand it, there is no dispute that the learned Magistrate went through the necessary steps under s 18(2) which requires a magistrate, unless they have reason to believe the consent was not voluntary, to advise the person of the effect and consequences of their determination to surrender. There is no specific provision in the Act relating to a variation of that determination.

His Honour’s reasons for decision record the submission made through the Commonwealth Director of Public Prosecutions that the Supreme Court had:

[7] … no general jurisdiction … to entertain firstly an appeal from a s 18 decision, and specifically no jurisdiction to permit a variation in the form of consent that was on the papers at least given at that hearing.

The question before Connolly J was formulated by his Honour as being “whether or not this Court has the jurisdiction to entertain an application to allow Mr Karsten to withdraw his consent to an extradition”: [2007] ACTSC 20 at [1]. That question was answered in the negative. His Honour did, however, go on to further observe:

[18] There is a general discretion in the Attorney in relation to the extradition process, and it seems to me that the question of the voluntariness of consent would be a question that the Attorney would need to satisfy himself of. Clearly, if a situation was one where a person had no English skills at all, or had been tricked in some way into agreeing to consent, that would be a matter that would necessarily attract attention and the Attorney and [sic] would need to make a determination to that effect.

Before the Supreme Court Mr Karsten was legally represented. A more general submission advanced on the hearing of the present Motion before this Courtthat Mr Karsten was thereafter represented by counsel, it is considered, should not be accepted. What advice was given to Mr Karsten by his then legal representative when appearing in the Supreme Court remains, not surprisingly, unknown.

47 Relevantly, however, by the time the s 22 determination was made, the only judicial challenge to the s 18 decision had been heard and resolved against Mr Karsten. In such circumstances it is considered that the requirements of s 22 had been met, namely that there was a lawful “order of a magistrate made under section 18”, and that any condition precedent to the exercise of the power conferred by s 22 had been satisfied.

48 Even if the construction of s 22 which has been given to that section be incorrect, it is considered that it would be an abuse of process to now permit the Applicant to advance such a contention. It would be an abuse of the process of the Court for a person the subject of extradition proceedings to seek to challenge an order made pursuant to s 18; to be informed that the means of challenge then being invoked were not available to him; to thereafter await a determination made under s 22; and, when that determination is adverse, to be permitted to then revert to his earlier position by asserting that there was no power to make the s 22 determination.

49 Repetitious challenges to decisions made under the Extradition Act 1988 (Cth), or a failure to raise for resolution issues relevant to a decision the subject of review may constitute an abuse of process: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 at [13]–[15] per Rares J, 99 ALD 235. See also Brock v Minister for Justice & Customs [2007] FCA 2091. In the present proceedings, it is considered an abuse of process for the Applicant to now again seek to agitate the validity of the order made under s 18 and to thereby attempt to vitiate the subsequent s 22 determination.

50 The separate and discrete administrative steps set forth in the 1988 Act may each be the subject of applications for judicial review. The importance of each of those steps being discharged in accordance with law is self-evident. The serious consequences to a person of an order for extradition not made in accordance with law may also be readily accepted.

51 But the Court should not endorse a course whereby a party is free to initially seek to challenge, in this case the order under s 18 of the 1988 Act; to thereafter abandon any challenge to the making of that order; to permit the extradition process to proceed, upon the basis that there is no legal impediment to the Attorney making a determination under s 22; and thereafter again seek to assert the invalidity of an order previously made. Presumably, had that determination been favourable to the Applicant, it would not have been asserted on his behalf that he could not take advantage of such a favourable decision because a condition precedent to the exercise of the s 22 power had not been satisfied. Conversely, when the determination is adverse to the Applicant, it is considered to be an abuse of process to permit him to now assert the invalidity of the s 18 order.

52 Reason for reservation in reaching a conclusion as to an abuse of process is, however, occasioned by the Applicant’s Affidavit filed in the present proceedings on 24 September 2007. In that Affidavit Mr Karsten states:

[3] When I was arrested and taken before the Magistrates Court of the ACT, I did not have a legal practitioner representing me until a legal aid solicitor came and advised me that if I had no one else she would appear on my behalf.

[4] I did not appreciate the fact that I should have had a lawyer representing me at that time. So that when she offered her services for me I believed that she was a Court appointed lawyer, with whom I was required to co-operate.

[5] The legal aid lawyer spoke to me about the governments case against me and advised that I was arrested and was going to be send [sic] back to Germany to face a criminal trial. I protested my innocence. But was informed that that stage of the proceedings before the Magistrates Court I could not argue my case and that I had not [sic] alternative but to accept what the government was saying. She said that fighting the government was a waste of time [and] that I had no choice but to consent to the extradition application.

[6] I was in prison, I was accused of a crime I protested against and I was confused. I believed that I had no alternative and against my will I consented to whatever it was that the Magistrate was asking me.

An absence of consent was also the subject of hand-written submissions made by Mr Karsten to the Supreme Court of the Australian Capital Territory, being submissions dated 24 January 2007. Notwithstanding differences between the hand-written account and the Affidavit as now filed, what is common to both is an explanation as to the circumstances in which Mr Karsten came to give his consent to the magistrate.

53 The conclusion as to an abuse of process is nevertheless a conclusion which remains open. The s 22 determination was made on 5 July 2007. Prior to that adverse determination being made, and after the decision of the Supreme Court on 26 February 2007, the Applicant took no further steps to challenge by any means of judicial review the order as made under s 18(2). The fact that Mr Karsten made submissions to the Minister, and thereby placed reliance upon seeking to persuade the Minister as to the merits of his case, is considered to only reinforce a conclusion as to an abuse of process.

Section 31A: Summary Judgment

54 The power of this Court to enter summary judgment has been considerably strengthened by the insertion of s 31A of the Federal Court of Australia Act 1976 (Cth). That section provides as follows:

Summary judgment

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart from this section.

55 When introducing s 31A the Attorney-General in his Second Reading Speech (House of Representatives, 10 March 2005) the Attorney-General stated:

The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts’ powers in dealing with any unsustainable case.

56 In Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 Jacobson J helpfully summarised the principles to be applied to s 31A:

[30]...The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]–[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:

* In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

* There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

* Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

* Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

57 In the present proceedings it is recognised that, when resolving the Minister’s Motion, it is not necessary to conclude that Mr Karsten’s case is either “hopeless” or “bound to fail”. It is, however, considered that it has “no reasonable prospect[s] of success.” It is considered that Mr Karsten has no reasonable prospects of any conclusion being reached other than that:

(a) he is an “extraditable person” within the meaning of ss 6 and 16 of the Extradition Act;

(b) the offence in respect of which his extradition is sought is an “extradition offence” within the meaning of ss 5 and 16 of the Act; and

Miscellaneous Matters

58 Two further miscellaneous matters should be mentioned lest it be thought that they have been overlooked or not considered.

59 During the course of directions hearings held prior to the hearing of the present Motion, the Applicant requested that copies of documents be translated from German to English. The documents the subject of the requests were not then identified with any precision.

60 The requests for the provision of translated documents were thus previously refused. The legal and factual issues the subject of the Further Amended Application were considered to be within a sufficiently narrow compass that a request for the translation of unspecified documents was not considered necessary for the resolution of any issue. At the hearing of the Respondent Minister’s Motion, the request for the translation of documents was revisited and the generic categories of documents which may have assumed relevance further pursued. Even confined to more specific categories, it was considered that the hearing of the Motion should proceed. The documents then identified as potentially being of some assistance to the contentions being pursued by Mr Karsten were not considered to have such relevance as to justify any further postponement of the Minister’s Motion.

61 The second of the matters which should be addressed arises out of a request made by the Applicant by way of letter dated 12 December 2007 to the District Registry of the Court that he be provided with six copies of “transcripts to be made available to me free of charge… The transcripts”, he maintained, “are required due to poor video link quality and to obtain legal advice in my self represented case”. That request is also refused. The transcripts of what transpired at directions hearings prior to hearing are not considered to have any immediate relevance to the issues to be resolved on the present Motion.

62 The Court may, in an appropriate case, order or make arrangements for the provision of transcripts to litigants free of charge or may make arrangements for a litigant to have access to a transcript, either by way of a computer or on loan from another party. An appropriate case may include circumstances where a litigant is unable financially to obtain his own copy of a transcript or where it is necessary in the administration of justice that a copy be made available. Unless the utility of making such arrangements is identified, it remains difficult to consider why such orders or arrangements should be made.

Orders

63 The orders of the Court are:

1. The name of the Second Respondent be amended to “Minister for Home Affairs”.

2. The Application filed on 17 July 2007, as amended by way of a Further Amended Application filed on 7 November 2007, be dismissed.

3. The Applicant to pay the costs of the Second Respondent.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 14 March 2008

Applicant:	In person

Counsel for the Second Respondent:	Mr T Glover (Australian Government Solicitor)

Date of Hearing:	28 February 2008

Date of Judgment:	14 March 2008

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