FEDERAL COURT OF AUSTRALIA

Konstantinou v Hellenic Republic [2012] FCA 53

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal under s 21(1) of the Extradition Act 1988 (Cth) seeking review of the order of a State Magistrate made under s 19 of the Act, that the applicant, Vasilios Konstantinou, was eligible for surrender to Greece, the country which sought his extradition. Three grounds of review have been advanced which I will deal with in turn but it is necessary to refer, first, to the statutory settings both of the Magistrate’s determination and of this application. They are both quite contrived and the function given, first the Magistrate, and then the Court, is quite circumscribed.

The Statutory Setting

2    It is sufficient for present purposes to indicate that, on the application of the country of a person whose extradition it has requested, the Magistrate is required 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: s 19(1).

3    Sub-section (2) goes on to prescribe (again insofar as presently relevant) that:

… 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;

…

(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.

I would note in passing that sub-para (c) imposes what is described as the “dual criminality” requirement. It provides the backdrop to what is the central issue in this matter.

4    There are two additional matters concerning s 19(2) that require explanation. First, the formula “conduct … constituting the offence” in s 19(2)(c) is itself defined in s 10(2) to mean:

… the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

Secondly, the term “supporting documents” in sub-para (a) is defined in s 19(3) to mean (for present purposes):

(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;

    …

(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.

5    The primary issue in this matter concerns the adequacy of the “statement of conduct” for s 19(2)(c) purposes that has been provided by the Greek authorities.

6    The centrality of the statement of conduct to the limited function imposed on the Magistrate by s 19 is made plain in s 19(5). It provides:

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.

7    I should add by way of elaboration that while the Act prescribes for some purposes (i) the material that must be (s 19(2) and (3)), or that cannot be (s 19(5)), put before the Magistrate it does not otherwise regulate the reception and use of material that a party seeks to have put “into evidence”: see Dutton v O’Shane (2003) 132 FCR 352 at [158] and [162].

8    There is a considerable body of Full Court decisions which explain both what is required of, and what is the purpose of, a statement of conduct both for s 19(3)(c)(ii) and s 19(2)(c) purposes. As these have been summarised conveniently in Griffiths v United States of America (2005) 143 FCR 182 at [49]-[55], I refer in part to what was there said (at [51]-[55]):

(ii)    Section 19(3)(c)(ii) requires a statement of the “acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed”: s 10(2). A bare description or definition of the offence will not suffice: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [8] ff; McDade v United Kingdom [[1999] FCA 1868] at [16]. As was said by Gleeson CJ and McHugh and Heydon JJ in the s 42 (“speciality”) case of Truong v The Queen (2004) 78 ALJR 473 at [29]:

The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.

(iii)    The statement must speak with sufficient specificity, clarity and coherence to serve its purpose: cf Linhart v Elms (1988) 81 ALR 557 at 583. Hence, as Kenny J said in McDade at [17]:

Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a “matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies”: Zoeller at 294 and Wiest [23 FCR] at 519.

(iv)    The s 19(3)(c)(ii) statement serves a dual purpose. First, the facts relevant to the extradition offence are proved by that statement. Second, because the magistrate making the eligibility determination is confined to the material adduced in the supporting document, the statement must be such as to permit the magistrate to be satisfied that the conduct said to constitute the offence would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300; De Bruyn v South Africa at [7].

(v)    It is not the magistrate’s function under s 19 to determine what are the minimum facts necessary to constitute the foreign offence. As was said in Zoeller at 300:

That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.

(vi)    A consequence of the dual purpose of the s 19(3)(c)(ii) statement is that the level of information and detail the requesting country provides about the conduct constituting the extradition offence may be sufficient to satisfy s 19(3)(c) but be inadequate for s 19(2) purposes.

9    I need only add to this the observations of the Full Court in O’Donoghue v Ireland [2009] FCAFC 184 at [39] on which, I might add, the applicant places some emphasis:

… the determination of whether or not there has been compliance with the documentary requirements of s 19(3) of the Act is a matter for practical judgment and assessment. The Court prefers substance over form in its consideration: Cabal v United Mexican States (No 3) (2000) 186 ALR 188 (at [134]). A narrow “technical” approach to construction is not appropriate but any remaining ambiguity should be resolved in favour of the individual: Cabal (at [132]).

10    Finally, the strictures upon the material to which a Magistrate can have regard for s 19(2) purposes are, in turn, carried over both to courts reviewing the orders of Magistrates and to courts hearing appeals therefrom. Section 21(6)(d) provides:

the court to which the application or appeal is made shall have regard only to the material that was before the magistrate.

The Supporting Documents

11    Save for what is said later in these reasons about the “additional evidence” upon which the applicant seeks to rely, it is necessary only to refer here to the “Supporting documents” provided by the Greek authorities.

12    First, the Warrant of Arrest required by s 19(3)(a) contained both a formal accusation that “on 14-10-2005” the applicant committed three punishable acts and a factual narrative of the circumstances constituting those punishable acts. The substance of that narrative was identical to that contained in the “statement of conduct” save that it was cast in personal, and not impersonal, terms. Put shortly, the offences alleged were (a) cultivation of narcotic substances “in complicity”; (b) harvesting of narcotic substances “in complicity”; and (c) possession of narcotic substances “in complicity”. These offences were alleged to have been committed together with five named co-accused. The one matter of note about the warrant is its specification of the day on which the punishable acts were said to be committed. The factual descriptions of the offences in contrast clearly envisage that the applicant and his co-accused engaged in a course of conduct over an unspecified period of time.

13    Secondly, the documentary descriptions of, and penalties in respect of, the offences required by s 19(3)(c)(i), is not in contest here and is notable only in one respect. Article 45 of the Criminal Code of the Hellenic Republic provides (in translation) that:

If two or more persons committed jointly a criminal act, each one of them is punished as perpetrator of the act.

14    Thirdly, the s 19(3)(c)(ii) Statement of Conduct. It is necessary, because of the challenge made to the statement, to set out part of it in some detail. I will use the conduct relating to the first offence for illustrative purposes.

15    Having referred to the Greece-Australia extradition convention, the request to extradite the applicant and offences of which he was accused, the statement proceeded to set out serially the conduct constituting the three offences. That constituting the “cultivation offence” stated:

(A)    Having joint intention with his co-defendants [named] consisting in his knowledge as concerns their purpose to commit the same punishable act under the circumstances they committed it, and the occurrence of its results, with simultaneous or successive actions of all of them, he cultivated plants of the genus of cannabis and more especially at a specially formed place and in particular a greenhouse located at Stavros of Farsala, intended from its construction for the cultivation of agricultural plants, which he tidied up properly as regards the installations, the equipment and the support of the plant growth in general, he planted seeds of the plant of cannabis, which, with the appropriate attention, care and supervision, were developed into plants of sufficient dimensions of the above mentioned narcotic substance, of which he took further care as regards their growth and the maintenance of their sprouting, proceeding to all the acts of supervision, care and attention jointly with his other co-defendants, going all of them at the same or different times, collectively or individually each one of them and proceeding to the above acts of cultivation with simultaneous or successive acts with the others, taking care in parallel of the cover-up of his illegal activity, choosing as location for the construction of the greenhouse, a point of the agricultural area of Stavros of Farsala and in particular the location “TRIANTARES”, where other greenhouses were also found, so that the impression was created that legal agricultural plants were cultivated there according to the usual activity of the residents of the area.

    In particular he cultivated a) eight hundred forty (840) saplings of the genus of cannabis, which were found inside the greenhouse, hung up on wires for drying up, b) tips of cannabis of total gross weight fifty three (53) kilos and seventy (70) grams approximately, c) seeds of cannabis of total gross weight twenty one (21) kilos and two hundred twenty (220) grams, d) unprocessed cannabis of total gross weight nine (9) kilos and three hundred forty (340) grams approximately and e) one hundred and fifty (150) saplings of cannabis topped and stripped from all the parts of the plant but the trunk, up to about one (1) meter in height.

    (Emphasis added.)

16    The descriptions of the conduct giving rise to the other two offences were similarly formulaic in describing the several and joint conduct of the applicant and the co-accused: eg “he proceeded to works with simultaneous and successive actions jointly with his … co-defendants” etc.

17    To reiterate, save for the use of the impersonal pronouns “he” and “his” instead of the personal “you” and “your”, the descriptions given in the statement mirror those of the warrant.

The Three Grounds of Review

18    The objections taken to the Magistrate’s decision are that the magistrate erred:

(1)    in failing to give any, or adequate, reasons for decision; and

(2)    in holding that the “dual criminality” requirement of s 19(2)(c) was met on the basis that:

    (i)    the supporting documents relied upon by the respondent do not allege (either at all, or in the alternative, with sufficient clarity) conduct by the applicant sufficient to render him liable under South Australian law for any joint enterprise or other equivalent extraditable offence; or

    (ii)    in the alternative, the alleged conduct is incapable of constituting an offence under South Australian law given that any allegation of joint liability with the various co-accused would be inconsistent with the Greek judgments.

Ground 1: Reasons

19    The learned Magistrate did prepare a document which bore the title of “Reasons for Decision”. If they were intended to be reasons, and if the Magistrate was obliged to give reasons, the best that can be said is that they were “unduly uninformative”: cf Eaves v Eaves [1956] P 154 at 157. The question, though, is whether the Magistrate was obliged, by the Act or otherwise, to give reasons for a decision made under s 19 which results in the making of an order under s 19(9) (upon a determination that a person is eligible for surrender to the extradition country) or under s 19(10) (that the person is not so eligible).

20    It is well settled that the determination under s 19(1) of eligibility to surrender and the making of consequential orders under s 19(9) and s 19(10) involve the exercise of administrative functions and not the exercise of the judicial power of the Commonwealth: see O’Donoghue v Ireland (2008) 234 CLR 599 at [40].

21    It is equally clear for present purposes that the applicant has no right to obtain reasons for the decision of a Magistrate under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the reason that decisions under the Extradition Act 1988 are a class of decisions to which the AD(JR) Act does not apply: see AD(JR) Act, s 3(1), s 13(11) and Sched 1(r).

22    This exclusion is of present moment. In O’Connor v Zentai (2011) 122 ALD 455 Jessup J (with the concurrence of North and Besanko JJ) said of it (at [215]):

The legislature has, therefore, specifically turned its mind to whether reasons must be given for decisions made under the [Extradition] Act, and has decided that they need not be.

His Honour went on to say that:

In these circumstances, it is, in my view, quite impossible for the respondent to succeed on a submission that, as a matter of implication, s 22 of the Act requires the decision-maker to provide the reasons for his or her determination under subs (2) of that section.

The s 22 decision referred to was the determination by the Attorney-General as to whether an eligible person was to be surrendered.

23    The applicant has sought to evade the obstacle that this decision poses by contending that (a) the obligation to afford procedural fairness extended to the obligation to provide reasons, particularly given the statutory right of review given by s 21; and (b) the giving of reasons is implicit in s 19 of the Act itself.

24    In the face of O’Connor’s case neither of these contentions can avail the applicant. It may be accepted from the context of the Act and the place s 19 proceedings play in the extradition process that procedural fairness must not be denied to the person the subject of the proceedings: see Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290. But whether viewed as a matter of construction or of common law right, a right to reasons must give way to a contrary legislative indication notwithstanding that an admitted right to seek judicial review would be enhanced by the giving of reasons: see Barnes v Boulton (2004) 139 FCR 356 at [22]-[29]. As O’Connor has indicated, the legislature has spoken.

25    The applicant’s alternative contention is that s 19 presupposes that reasons for decisions are both created and are required to be given. To support this, reliance is placed upon the provisions of s 19(10) but which, as the respondent properly contends, needs to be considered together with s 19(9). They provide:

(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.

(10)    Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

    (a)    order that the person be released; and

    (b)    advise the Attorney-General in writing of the order and of the magistrate’s reasons for determining that the person is not eligible for surrender.

26    The applicant’s contention is that s 19(10)(b) does not create an obligation to give reasons, but rather is a direction to the Magistrate predicated on the existence of reasons, to provide them to the Attorney-General who is not a party to the proceedings. The respondent’s contention to the contrary is that when sections 19(9) and 19(10) are seen together they provide deliberate and prescriptive obligations which cater expressly for the two contingencies for which together the two subsections provide. Subsection (10) cannot be used to imply a larger obligation into subsection (9) than that for which it makes express provision, ie the making available of the s 19(9)(c) “record” to the eligible person and to the Attorney-General.

27    It clearly is the case that a statutory obligation even to create reasons for decision and/or to make them available to a third party does not necessarily give rise to an obligation to give reasons to the party affected by the decision in question. There may be other reasons for having documented reasons created and made available to a specified person: see Barnes v Boulton, at [29]. What matters is what is intent the legislature has manifest in the matter. Given the Attorney-General’s functions in relation both to the extradition process and for the administration of the Act, there is an apparent reason why such an obligation as that ought be imposed by subsection (10)(b), even though the Attorney is not strictly a party to the s 19 administrative decision. Nonetheless, the imposition of that obligation does not justify discerning of a legislative intent that the applicant was to have a right to reasons for a s 19(9) decision in addition to the rights otherwise given him by the subsection. Nor, for that matter, does it qualify the general legislative intent discerned in O’Connor that reasons for decisions made under the Act need not be given.

28    I reject the applicant’s contention that the Magistrate was obliged to, but did not adequately or at all, give his reasons for the s 19(9) decision.

29    There are three additional comments that ought be made. The first is that, while much in the applicant’s contention was tied to enhancing the s 20 right to apply for a review of the Magistrate’s order, it must be remembered that the function of the Court on that review is merits review based on the material before the Magistrate: see New Zealand v Johnston (2011) 274 ALR 509 at [22]; and not merely judicial review. Secondly, because it is merits review – and the merits have been fully agitated before me – there would have been no utility in granting relief had I found there was an obligation to give reasons which had not been fulfilled. Thirdly, though the Act does not prescribe the practices, processes and procedures that the Magistrate is to employ in conducting the s 19 review: Dutton v O’Shane, at [158]; it is hardly surprising given the court-like processes and procedures followed in cases such as the present, that an applicant might reasonably expect that reasons would be given after detailed written submissions, oral argument etc. The transcript of submissions ran to 80 pages.

Ground 2: No Allegation of the Particular Conduct of Applicant as an Individual Constituting the Offence

30    The essence of the applicant’s contention is that the requirement of dual criminality was not made out. This is because there is no allegation of any particular act of participation on the part of the applicant, or alternatively, the allegation is insufficiently precise. Put another way, the statement of offence merely alleges that the applicant is liable for the joint enterprise to which he and his co-accused were party, without identifying the particular act or acts of participation engaged in by the applicant. While simply being party to an agreement or enterprise, or having knowledge of it, might suffice as a matter of Greek law, it is not sufficient to constitute an offence as a matter of South Australian law.

31    It needs to be recalled that, under s 19(2)(c) of the Act, the Magistrate must be satisfied that the conduct referred to in the s 19(3)(c)(ii) statement, ie the acts or omissions or both by virtue of which the offences in question are alleged to have been committed, would have constituted an extradition offence had they taken place in South Australia: Zoeller, at 300.

32    It equally needs to be re-emphasised that whether the statement in question is to be accepted as sufficient for s 19(3)(c)(ii) purposes is essentially a matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies: Zoeller at 294. What needs to be emphasised first and foremost is that the warrant of arrest and the statement of conduct are translations; it can be expected that they may contain stilted or unfamiliar word usages; and they may not be expressed with the lucidity and precision of the drafting of Chalmers. They are working documents.

33    The applicant has flagged the possible contention that the supporting documents are “not sufficiently precise” to constitute supporting documents for the purposes of s 19(2)(a) and s 19(3)(c)(ii). Wisely, this has not been pressed. Instead it is said that the supporting documents do not allege, or do not allege with sufficient clarity, conduct which establishes “dual criminality”.

34    I should dispatch one matter immediately as an irrelevance. It has been foreshadowed. Both the warrant and the statement refer to the three “punishable acts/felonies” as having been committed on “14-10-05”. The body of the two documents describing the conduct in question manifestly indicated that a course of conduct was engaged in over time which effectuated the joint intent of the applicant and his co-accused.

35    The applicant contends that the date cannot simply be ignored. He is said to be responsible for something that occurred on that day. He could not possibly have engaged in all of the relevant conduct on that day. This, it is said, supports the construction that the documents are best understood as an allegation that as at 14 October 2005 he was party to a joint enterprise involving the conduct described and not that he engaged in any or all that conduct on that day.

36    There is nothing in the documentation to explain why this particular and single day has been used as it has notwithstanding that it necessarily must be underinclusive of the time over which the offences were committed. What is clear, though, from p 18 of the official translation, is that the date given marks the beginning of the 15 year prescription (limitation period) after which “punishability is abolished”. To that extent the offences remain extradition offences in Greece.

37    Be this as it may, the question posed for the Magistrate was whether, at the time the extradition request was received: s 19(2)(c); the conduct constituting the offence in Greece would have constituted an extradition offence in South Australia. The date on which they are said to have occurred in Greece is irrelevant to that question.

38    Despite the applicant’s urgings to the contrary, I consider this to be a plain case and again will use the first offence – cultivation of narcotic substances in complicity – to illustrate this. The joint intention to cultivate, which was put into effect and which produced the intended result, was clearly stated. The applicant’s actual participation in the acts constituting the offence is then described by reference to his own conduct together with that of the co-accused, those acts being done “with simultaneous or successive actions of all of them”.

39    While there is some awkwardness in the expression used, it is plainly alleged that he cultivated plants of the genus of cannabis at a specially formed place; he tidied up that place for the purpose; he planted seeds which with appropriate attention etc were developed into plants etc of which he took further care jointly with his other co-defendants:

… going all of them at the same or different times, collectively or individually each one of them and proceeding to the [described] acts of cultivation with simultaneous or successive acts with the others …

and so on.

40    This may be awkward and contrived but it should be said that the entire first offence is described in two sentences – one taking an entire page; the other, a third of a page. The language used to describe joint and several activity may seem unusual, but it is no more arcane than that used to describe actions giving rise, for example, to joint and several liability in our own legal system.

41    At best, in my view, the applicant’s objection here is to the level of generality at which the applicant’s participatory conduct was expressed: “he planted seeds”, etc. Though counsel disclaimed it to be the case, what was being asked for was in essence the evidence concerning the conduct alleged. Such is not required.

42    The plain words of the statement of conduct describe both the involvement of the applicant in a joint enterprise and it makes particular allegations of conduct on his part in that enterprise. The contention that the statement alleged no, or insufficient, particular conduct of the applicant is unfounded.

Ground 3: The Greek Judgments

43    By way of background the original extradition request was received by Australia on 23 July 2009. There appears to have been subsequent communication between the two countries with the now operative extradition request being received by Australia on 11 March 2010.

44    There have been proceedings in Greece against the applicant’s five co-accused in respect of the joint enterprise described in the supporting documents for the most part before but also after the receipt of the operative extradition request. These were as follows:

(i)    A three member bench of the appeals Court of Larissa sitting on 15 January 2007 convicted two of the co-accused, Mr Tsotinas and Mr Vagianos, but acquitted the others.

(ii)    A five member bench sitting on 4 May 2009 upheld Mr Tsotinas’ conviction but acquitted Mr Vagianos.

(iii)    Mr Tsotinas’ appeal to the Supreme Court of Greece was dismissed on procedural grounds on 21 July 2010.

Translated versions and/or minutes of the proceedings were placed before the Magistrate. They were objected to by the respondent but received de bene esse. No ruling on them was made. Being material that was before the Magistrate, it is material which is before us: Dutton v O’Shane, at [162]. Its utility is another matter.

45    These judgments are relied upon for the proposition that when a Magistrate makes a s 19(2)(c) determination as to whether the conduct constituting the offence would have constituted an extradition offence in South Australia if it had taken place there at the time the extradition request was received, the Magistrate is required to consider South Australian law which extends not only to specific offence provisions but also general common law principles governing joint criminal liability including those which operate to prevent inconsistent convictions.

46    As to the last of these it is said inconsistency with the verdicts in the Greek proceedings would prevent the conduct alleged against the applicant constituting any offence under South Australian law.

47    The respondent’s contention is, first, that the dual criminality inquiry mandated by s 19(2)(c) confines the Magistrate to the material adduced in the supporting documents and statements to this effect have been made repeatedly in Full Court decisions: see eg Zoeller, at 300. Secondly, it is said that, while there is an allegation of complicity, the allegations stand against him in respect of his own conduct.

48    If use can be made of the judgments, they contain nothing which would amount to an exoneration of the applicant in any sense. Whether there might be an inconsistent verdict will depend on the evidence which is unknown to the Magistrate and who has no means of considering it.

49    While in a case such as the present, I am probably bound by cases such as Zoeller to hold that the Magistrate’s task is the contrived one contended for by the respondent, I agree with the alternative proposition advanced by the respondent. It cannot be assumed that, as with Mr Tsotinas, the evidence against the applicant may be sufficient to sustain a conviction relating to his involvement in the alleged joint enterprise.

Conclusion

50    I will order that the application be dismissed with costs.

Associate:

Dated:    7 February 2012