FEDERAL COURT OF AUSTRALIA

Marku v Republic of Albania (No 2) [2012] FCA 1182

THE COURT ORDERS THAT:

1.    The application made by notice of motion filed on 3 May 2012 be refused.

2.    There be a directions hearing on 15 November 2012 at 10:15am.

3.    On or before 9 November 2012, the parties file and serve minutes of proposed orders and any written submissions (not to exceed three pages).

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

THE COURT ORDERS THAT:

1.    There be a directions hearing on 15 November 2012 at 10:15am.

2.    On or before 9 November 2012, the parties file and serve minutes of proposed orders and any written submissions (not to exceed three pages).

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

REASONS FOR JUDGMENT

1    By a notice of motion filed 3 May 2012 in this proceeding, VID 1241 of 2011 (“the common law proceeding”), the applicant, Valentin Marku, seeks to amend his originating motion filed on 10 August 2011 in which he seeks to set aside the order of the Deputy Chief Magistrate of the State of Victoria (“the s 19 magistrate”), who, on 28 May 2010, determined that he was eligible to surrender for extradition offences and committed him to prison to await surrender under s 19(9) of the Extradition Act 1988 (Cth) (the “Act”).

2    The applicant seeks to add the following grounds of relief:

1A.    At no time had the Attorney-General (Cth) given a notice under section 16(1) of the Act in respect of the Plaintiff, within the meaning of section 19(1)(b) or at all.

Particulars

In 2009, the then Minister for Home Affairs (Robert Debus) gave a notice in respect of the man named Lleshaj. (The notice is dated the 14th day of a month in 2009 - the month is handwritten illegibly). The Plaintiff is not the man named Lleshaj.

1B.    In consequence, the magistrate had no jurisdiction to conduct proceedings in relation to the Plaintiff under section 19(1) of the Act, or therefore to make orders or to take any steps under section 19(9).

3    The application was supported by:

1.    The affidavit of Christine Willshire sworn on 3 May 2012.

2.    The applicant’s “Outline Regarding Proposed Amendment” dated 3 May 2012.

3.    The applicant’s further outline of submissions (in support of motion to amend and costs) dated 27 August 2012.

4.    The affidavit of John Manetta sworn on 5 September 2012.

5.    The applicant’s outline of submissions in reply (in support of motion to amend) dated 25 September 2012.

4    The application was opposed by the respondent, the Republic of Albania, on the basis that the proposed new grounds were bound to fail. The respondent filed the following in opposition:

1.    The affidavit of Alexandra Folie sworn on 17 September 2012.

2.    Written submissions dated 17 September 2012.

background

5    These reasons should be read with my reasons for Marku v Republic of Albania [2012] FCA 804 (“Marku (No 1)”).

6    As explained in detail in Marku (No 1), the applicant contends that he is Valentin Marku and denies that he is Agostin Lleshaj, who was convicted of homicide and attempted homicide in Albania on 16 December 1994 and escaped from prison in Albania in 1997 while serving a lengthy sentence for those crimes. Agostin Lleshaj was at various times also known or referred to as “Agustin Lleshi”. The material exhibited to Ms Folie’s affidavit indicates that the name Agustin Lleshi was the result of clerical or spelling errors which occurred in the course and documentation of the proceedings in Albania, but were detected and corrected prior to the conclusion of those proceedings.

7    The Republic of Albania, by an extradition request dated 12 September 2008, requested the extradition of: “Agostin Lleshaj (Lleshi) alias Valentin Marku”. On 14 January 2009, the Minister gave a notice under s 16 of the Act which stated that an extradition request had been received from the Republic of Albania in relation to “Agostin Lleshaj”.

8    On 3 March 2009, the Republic of Albania applied for a provisional arrest warrant under s 12 of the Act for “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”. The application was supported by an affidavit of a Senior Constable of Victoria Police sworn on 3 March 2009. On 3 March 2009, a magistrate under s 12 of the Act issued a provisional arrest warrant for “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”. The warrant stated that “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” was an extraditable person for the purpose of the Act in relation to the extradition country.

9    On 11 March 2009, the applicant was arrested under the provisional arrest warrant and was subsequently remanded by a magistrate under s 15 of the Act.

10    Before the s 19 magistrate, the applicant acknowledged that he was Valentin Marku but denied that he was Agostin Lleshaj (or Agustin Lleshi), the person who was convicted for offences in Albania. The s 19 magistrate concluded that on the basis of Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (“Kainhofer”) he was not empowered to determine whether the applicant was an extraditable person.

11    In 2011, the applicant issued the appeal proceeding (VID 1242 of 2011) and the common law proceeding alleging, inter alia, that the s 19 magistrate erred in holding that he was not empowered to determine the identity question (defined as “whether the person on remand is the person convicted of the offences evidenced in the authenticated documents”). In the appeal and the common law proceedings, the applicant seeks a curial determination of the identity question, and by the common law proceeding, seeks that the court make that determination without restriction to the material before the s 19 magistrate (as would apply in the appeal proceeding).

12    In Marku (No 1), I determined (in this proceeding and the related appeal) as separate questions:

(a)     that the magistrate pursuant to s 19 of the Act correctly held that it was not part of his function to determine the identity question; and

(b)    that if determination of the identity question were part of the s 19 magistrate’s task, identity was not a jurisdictional fact.

13    In summary, I concluded that, although the decision of the High Court in Kainhofer was not a case where the person sought for extradition alleged mistaken identity, its pronouncements and reasoning excluded determination of the identity question by a magistrate under s 19 of the Act. In Marku (No 1), I stated at [93] to [103]:

93    As the applicant submitted, Kainhofer did not involve the question of disputed identity which has arisen in this case. The respondent in Kainhofer did not deny that she was the person named in the warrant issued by the extradition country. The High Court in Kainhofer did not confront the question of disputed identity, and, perforce, did not expressly hold that a s 19 magistrate was not obliged or empowered to determine whether a person on remand under s 15 is the person accused or convicted (as the case may be) of the extradition offences evidenced in the authenticated documents.

94    The High Court nevertheless clearly recognised that the s 19 magistrate must assume that the s 15 order of remand and the s 16 notice are valid, and must proceed on the footing that the person on remand is an extraditable person. It also clearly articulated the limited function of the s 19 magistrate under s 19(2)(a). In my opinion, the reasoning in Kainhofer precludes a s 19 magistrate from determining the identity question.

95    Although a hearing under s 15 can (but need not necessarily) precede the giving of a s 16 notice, it can only occur after a provisional arrest warrant has been issued under s 12. Thus, by the time of the s 15 hearing, at least one, and possibly both, of the two relevant repositories of power have already determined that a given person is an extraditable person.

96    It does not follow from the satisfaction of the s 12 magistrate or the Attorney General under s 16 that a given person, “AB”, is an extraditable person, that a particular person who is identified as “AB”, arrested and brought before the s 15 magistrate, is in fact “AB” who is the subject of the s 12 warrant and also, perhaps, a s 16 notice. The s 15 magistrate must nevertheless be satisfied that the person he or she remands is “AB”, the person named in the s 12 warrant, because, as the respondent submitted, “AB” would not otherwise be the person arrested under a provisional warrant.

97    While the s 15 magistrate might therefore order the release of an arrested person who established that he or she is not the person the subject of the s 12 warrant, such an outcome is likely to be extremely rare, and the s 15 hearing would not constitute an effective forum for a contested hearing on the identity question.

98    Significantly to the present case, it is implicit that the s 15 magistrate, in remanding a person in custody or on bail, accepts that the person thus remanded is the person arrested under the s 12 warrant and thus the extraditable person accused or convicted of the extradition offences.

99    In Kainhofer, the High Court stated that the s 19 magistrate must not only proceed on the basis that the person on remand is an extraditable person, but must also (except where there is ex facie invalidity) assume that the s 15 remand order and s 16 notice are valid.

100    If the s 19 magistrate were not required to assume the validity of the remand order, but only that a particular person, “AB”, is an extraditable person, there would be more scope for the applicant’s construction of s 19. It could then be argued that the s 19 magistrate (although prohibited from determining whether the person named in the s 12 warrant were an extraditable person) could consider whether the person remanded was in fact that nominated person. However, the confluence of the multiple, interrelated assumptions that the s 19 magistrate is, according to Kainhofer, required to make, in my view forecloses that argument.

101    The assumptions that the person on remand has been validly remanded under s 15 and is an extraditable person, necessarily incorporate the underlying assumption that the person who is on remand is, in accordance with s 6, either a person accused or convicted of an extradition offence.

102    The person the subject of proceedings under s 19 is necessarily the person remanded under s 15 who, in turn, is necessarily the person who has been arrested under the s 12 warrant (which required the s 12 magistrate’s satisfaction that the person was an extraditable person). The person the subject of the s 19 proceedings is also necessarily a person in respect of whom the Attorney General has given a notice under s 16, which depends, inter alia, on the Attorney General’s satisfaction that the person is an extraditable person. The nexus between the person on remand and the extraditable person incorporates a nexus between the person on remand and the person who has been either accused or convicted of the extradition offences.

103    While Kainhofer concerned a different question from that arising in this case, I do not consider that this court is free to depart from its essential reasoning and fundamental statements. The High Court’s decision was underpinned by a comprehensive analysis of the statutory extradition scheme as a coherent whole, including the legitimate function and powers of the s 19 magistrate in that context. Its unambiguous description of the s 19 magistrate’s restricted role applies beyond the particular issue in Kainhofer.

14    In the amendment application, the applicant submitted that the proposed new grounds did not raise the issues already determined as separate questions and had reasonable prospects of success.

15    In his written submissions dated 27 August 2012, the applicant described the issues raised by the proposed amended grounds as follows:

(a)    whether the s 16 notice given by Robert Debus in 2009 in respect of “Agostin Lleshaj” is a s 16 notice in respect of the applicant; and

(b)    whether that s 16 notice - given as it was by the Minister for Home Affairs rather than the Attorney-General - is a valid notice under the Act.

16    At the hearing of the application, the issues in dispute narrowed. As the respondent contended, by s 19A(1) of the Acts Interpretation Act 1901 (Cth), a reference in a provision of an Act to a particular Minister is a reference to any one of the Ministers who administer the provision. The applicant accepted that the Minister for Home Affairs is one of the Ministers administering the Attorney-General's Department, and in that capacity administers the Act. Accordingly, s 16 of the Act conferred power on the Minister for Home Affairs to give a notice stating that an extradition request has been received. Therefore, the applicant did not pursue an allegation of invalidity of the s 16 notice on the basis that it was given by the Minister for Home Affairs. Further, as the respondent made clear that it did not oppose the proposed amendment on the basis of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 or delay, materials directed to those matters became irrelevant.

17    It remained necessary to determine whether the applicant should have leave to amend by alleging that the s 16 notice in respect of Agostin Lleshaj was not given in respect of the applicant and the s 19 magistrate thus lacked jurisdiction.

18    Due to ambiguity in the applicant’s written submissions, it was necessary to clarify whether the proposed amendment went to:

1.    an alleged disconformity between:

(a)    the person on remand under s 15 of the Act referred to in s 19(1)(a) and

(b)    the person referred to in the s 16 notice; or

2    whether it went, in essence, to the applicant’s denial that he is Agustin Lleshaj, the person convicted of the extradition offences and the subject of the extradition request.

19    Counsel for the applicant indicated that the proposed amendment went only to the former, but as explained below, it advances a basis for the court’s determination of the identity question.

20    The applicant’s written submissions advanced six cascading propositions in support of the proposed amendment, as follows:

1.    That an ostensibly valid s 16 notice, which must be a s 16 notice in respect of the person on remand, was a jurisdictional precondition to the s 19 magistrate’s powers, and thus a jurisdictional fact.

2.    The Attorney-General cannot give a valid s 16 notice in respect of anyone who is not the subject of an extradition request.

3.    The s 19 magistrate and any court reviewing his or her exercise of powers must assume the validity of the s 16 notice (unless it is ex facie invalid or quashed).

4.    The s 16 notice in this case was valid and had not been quashed.

5.    The presumption that the s 16 notice was valid incorporated a presumption that the person named in the s 16 notice is the person sought by the country in the extradition request - in this case, Agostin Lleshaj. The respondent, in seeking to rely on evidence including the extradition request to address the “disconformity” between the name in the s 16 notice and the names identifying the person on remand, erroneously sought to reverse that position, and determine the purport of the s 16 notice by the content of the extradition request. The Court was not, however, entitled to receive evidence extraneous to the s 16 notice to examine its correspondence to the extradition request. While the s 19 magistrate (and the Court) could hear evidence “to determine whether the person on remand is the same person named in the notice”, they could not “go behind the notice to see if the Attorney had in mind someone not named in it”.

6.    “Unless the applicant is in fact Agostin Lleshaj, the s 16 notice is not a notice in respect of him, and the jurisdictional precondition has not been satisfied.” Therefore, the Court “can hear identification evidence, to determine whether the applicant (the person on remand) is Agostin Lleshaj (the person named in the notice)”.

21    The applicant contended that the above was not inconsistent with Kainhofer or the answers to the separate questions, because the existence of the s 16 notice specified in s 19(1)(b) was a jurisdictional fact, whereas the separate questions and Kainhofer dealt with the tasks of the s 19 magistrate for which jurisdiction arose only if the jurisdictional facts in s 19(1) were established. Kainhofer required the magistrate to assume only non-jurisdictional facts, and did not impose such requirements in relation to the jurisdictional preconditions. Nor did the separate questions involve consideration of the effect of Kainhofer on an asserted dissonance between the jurisdictional preconditions in subsections 19(1)(a) and (b), which arose here because the applicant was remanded as Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku), whereas the s 16 notice was given in respect of ‘Agostin Lleshaj’.

22    The applicant contended that if he established under s 19(1)(b) that he was not the person named Agostin Lleshaj (or Agustin Lleshi) but only Valentin Marku, it would follow that the person on remand under the name Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku) was a “non-existent composite person”. The s 16 notice could not relate to that non-existent composite person and the condition in s 19(1)(b) would not be satisfied.

23    In summary, the applicant contended that because dissonance between factors said to satisfy jurisdictional preconditions in s 19(1) was involved, the limitations in Kainhofer did not apply. The s 19 magistrate was not only not required to make assumptions, but could not properly make them. In particular, the s 19 magistrate must not mandatorily assume that, provided only that there is a s 16 notice and a person on remand, the s 16 notice related to the person on remand.

24    The applicant acknowledged that evidence could be received about the “identifying details” which were before the Attorney-General when determining which of several possible persons bearing the name in the s 16 notice was intended. He submitted, however, that in this case, the admission of the evidence exhibited to Ms Folie’s affidavit would offend, as it would be tendered to alter the purport of, or rectify, the s 16 notice, and to establish that the Attorney-General had in mind someone other than the person identified in the s 16 notice.

25    The applicant submitted at [26]:

This must follow. And for the reasons just given, the Court can hear identification evidence, to determine whether the Applicant (the person on remand) is Agostin Lleshaj (the person named in the notice).

the respondent’s evidence and submissions

The affidavit of Ms Folie

26    Ms Folie’s affidavit, filed on behalf of the respondent, exhibited the extradition request received by the Attorney-General with documents attached thereto, together with official English translation, the advice of the Attorney-General’s Department to the Minister about signing a s 16 notice in relation to the extradition request and the report of the s 12 magistrate received by the Attorney-General.

27    The extradition request is for the extradition from Australia to Albania of “Agostin Lleshaj (Lleshi) alias Valentin Marku”.

28    The advice to the Attorney-General, which contained attachments, explained that certain material presented by Albania in support of the extradition of Lleshaj contained the erroneous spelling of Lleshaj’s name as Agustin Lleshi, which apparently originated in the decision of the First Instance Court of Mirdite, Albania, dated 16 December 1994, was thereafter repeated in subsequent decisions, but was rectified by a decision of the First Instance Court of Judicial Circle Lezhe on 25 July 2008.

Submissions

29    The respondent submitted that the proposed amendment had no reasonable prospects of success because it was, in the circumstances, clear both as a matter of fact and of law that the applicant was a person on remand in relation to whom a s 16 notice was given. The effective operation of the Act did not necessarily require consonance of the names in the s 12 warrant (and hence, of a person on remand under s 15, remanded under the s 12 warrant) and the s 16 notice, as all would depend on the stage at which the person was detected under an alias. For example, where an extradition request stating a particular name was received and the Attorney-General, in response, gave a s 16 notice in that name, the person might be subsequently detected under an alias, and the s 12 warrant issued using both the name in the extradition request and the alias. The respondent submitted that in the present case, both the s 12 application and the extradition request were made on the basis that Valentin Marku is Agostin Lleshaj, who was convicted of extradition offences against the law of Albania. The satisfaction of the s 12 magistrate that the applicant was an extraditable person within the meaning of s 6 of the Act was predicated on acceptance that the identity of Valentin Marku corresponded to the identity of Agostin Lleshaj (and that of Agustin Lleshi) and that the three different names were all names of the same person.

30    The respondent submitted that consistently with the reasoning in Marku (No 1) based on Kainhofer, set out above, it followed that the question whether the applicant is the man named Agostin Lleshaj did not arise in the context of this proceeding.

Discussion

31    In my opinion, the proposed new ground is without reasonable prospects of success. The respondent’s submissions were, in my opinion, persuasive.

32    While the High Court in Kainhofer did not, in terms, describe the conditions in s 19(1) as jurisdictional facts, some of its statements support that characterisation. Further, it was not disputed that the matters under s 19(1) are preconditions of the s 19 magistrate’s power to conduct his or her task under other subsections, including s 19(2).

33    It is necessary to identify what is required to satisfy the condition in s 19(1)(b) (the subject of the proposed amendment). Section 19(1)(b) cannot be construed without a means of identifying “the person” to whom it refers. When s 19(1)(b) is construed in context, “the person” is clearly “the person on remand under s 15” referred to in s 19(1)(a). Section 19(1)(b), thus interpreted, requires that the Attorney-General has given a notice under subsection 16(1) in relation to the person on remand under s 15.

34    “The person on remand under s 15” must be construed in the context of the statutory scheme and according to relevant authority, including Kainhofer.

35    In Marku (No 1), I concluded at [102]:

The person the subject of proceedings under s 19 is necessarily the person remanded under s 15 who, in turn, is necessarily the person who has been arrested under the s 12 warrant (which required the s 12 magistrate’s satisfaction that the person was an extraditable person). The person the subject of the s 19 proceedings is also necessarily a person in respect of whom the Attorney General has given a notice under s 16, which depends, inter alia, on the Attorney General’s satisfaction that the person is an extraditable person. The nexus between the person on remand and the extraditable person incorporates a nexus between the person on remand and the person who has been either accused or convicted of the extradition offences.

36    I concluded that the s 19 magistrate could not, consistently with Kainhofer, determine that the person on remand has not been validly remanded and is not an extraditable person.

37    The applicant submitted that his arguments in support of the proposed amendment neither conflicted with those conclusions nor reagitated the separate question they addressed, because s 19(1)(b) was a jurisdictional fact and, as such, was not subject to the strictures and assumptions imposed in Kainhofer on the s 19 magistrate under s 19(2).

38    The High Court in Kainhofer, however, propounded general statements on the proper authority and function of the s 19 magistrate, the matters excluded from the s 19 magistrate’s function and the assumptions the s 19 magistrate must make. The High Court did not, in that context, expressly distinguish between s 19(1) and s 19(2) or other subsections of s 19. Nor, in my view, did the High Court implicitly make or authorise such a distinction.

39    Rather, it recognised the four stages of the statutory extradition process described in Harris v Attorney-General (Cth) (1994) 52 FCR 386 and stated that the s 19 magistrate may not determine whether (or review the prior satisfaction of the s 12 magistrate or Attorney-General that) the person on remand is an extraditable person. Further, the s 19 magistrate must assume that the person on remand has been validly remanded.

40    Consistently with those requirements, “the person on remand under s 15” in s 19(1)(a) (who is, by implicit incorporation, “the person” referred to in s 19(1)(b)) in this case is the person remanded pursuant to the provisional arrest warrant under s 12 denominating him “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”.

41    The jurisdictional fact in s 19(1)(b) is that the s 16 notice was given in relation to the person on remand under s 15, as thus identified.

42    The applicant’s allegation that he is in fact Valentin Marku (a different person altogether, who has been wrongly identified with Agostin Lleshaj), cannot affect the conclusion that he is the person remanded under s 15.

43    Even in cases involving identical nomination of the person on remand and in the s 16 notice, doubt might arise as to the requisite relationship if, for example, there were two or more persons sought for extradition who were known by the same name. As the applicant acknowledged, evidence going to the requirement that the s 16 notice relates to the person on remand under s 15 is admissible.

44    The applicant’s contention that the evidence exhibited to Ms Folie’s affidavit was inadmissible because it was not directed to the relationship, but to the impermissible object of construing and rectifying a s 16 notice to reflect the extradition request, was unpersuasive.

45    Assuming (without deciding) that the purport of a s 16 notice cannot be interpreted or rectified by reference to the extradition request, it would not follow that the extradition request cannot constitute evidence on the distinct question whether the s 16 notice was given in relation to “the person on remand under s 15”.

46    In the present case, there was force in the respondent’s submission that, as the person on remand under s 15 was remanded pursuant to a provisional arrest warrant under s 12 denominating him as Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku), the s 16 notice, in referring to the primary name, albeit without the aliases, related on its face to the person remanded under s 15.

47    In my opinion, if and in so far as the omission of the aliases gave rise to a relevant “dissonance”, the respondent would be entitled to lead evidence to establish the requisite relationship.

48    In my opinion, the evidence exhibited to Ms Folie’s affidavit was apt to establish that the person in relation to whom the s 16 notice was given was the person on remand under s 15. The applicant did not foreshadow a challenge to the evidence, but rather to its admission for an allegedly impermissible purpose.

49    Further, in my view, the weakness of the arguments in support of the proposed amendment was such as to exclude a reasonable prospect of success.

50    The applicant’s construction was complicated and unduly subtle. It contained a number of unpersuasive elements, artificial concepts and apparent inconsistencies. It departed from the statutory language of s 19(1)(a) and (b), requiring the s 16 notice to relate not to the person on remand, but rather, to the applicant before the Court, in order to permit argument that the applicant before the Court (although the person on remand) was not the person named in the s 16 notice. It also depended on the asserted consequence of a distinction between s 19(1) and s 19(2), which was not grounded in Kainhofer, to exclude the application of its reasoning to s 19(1).

51    The submission that the proposed amendment did not challenge or reagitate the separate question did not withstand close analysis. Establishment of the alleged dissonance on which the amendment depended, in my view inevitably revisited the application of the strictures and reasoning in Kainhofer to the meaning of “the person on remand under s 15”, to which s 19(1)(b) implicitly refers.

52    As stated above, the person on remand under s 15 must, at the s 19 stage, be assumed to be validly remanded, and an extraditable person, as found by the s 12 magistrate, whose satisfaction the s 19 magistrate cannot review. The satisfaction that the person named in the s 12 warrant was an extraditable person necessarily incorporated satisfaction that Agostin Lleshaj, Agustin Lleshi and Valentin Marku were all names identifying the same extraditable person, which could not, consistently with the analysis in Kainhofer, be determined or reviewed by the s 19 magistrate.

53    The applicant’s argument ultimately depended on an unduly broad articulation of the jurisdictional fact or condition in s 19(1)(b), which accorded with neither the language of s 19(1)(a) and (b) nor the express pronouncements and substantive reasoning of relevant authorities.

54    In the light of the evidence filed by the respondent to address, to the extent necessary, satisfaction of the requirement that the s 16 notice relate to the person on remand, in my view, the applicant’s argument based on alleged dissonance has no reasonable prospect of success.

Conclusion

55    Accordingly, in my opinion, leave to amend should be refused.

Associate:

Dated:    26 October 2012