FEDERAL COURT OF AUSTRALIA

Kommatas v Hellenic Republic [2014] FCA 1224

FEDERAL COURT OF AUSTRALIA

Kommatas v Hellenic Republic [2014] FCA 1224

CORRIGENDUM

1.    On the title page, in the appearance section, the words “Solicitor for the First Respondent: Australian Government Solicitor” should read “Solicitor for the First Respondent: Mr D Reed of Attorney-General’s Department”.

Associate:

Dated:    25 November 2014

THE COURT ORDERS THAT:

1.    The order of the Second Respondent made on 10 July 2014 determining that the Applicant is eligible for surrender to the Hellenic Republic is confirmed.

2.    The Applicant is eligible for surrender within the meaning of section 19(2) of the Extradition Act 1988 (Cth) in relation to the extradition offence of sexual abuse of an incompetent person contrary to article 338(1) of the Greek Criminal Code.

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

REASONS FOR JUDGMENT

1    The Hellenic Republic has requested the Commonwealth of Australia to surrender to it by way of extradition the applicant, Michail Kommatas (Mr Kommatas).

2    On 3 April 2009, the Mixed Court of Appeal of Thessaloniki in Greece pronounced Mr Kommatas guilty of the following act:

In Platamon Pieria, on 6 September 2003 between 03:00 and 09:00, hrs he abused another person’s incapacity to put up resistance and performed extramarital sexual intercourse on such person. Specifically, he took advantage of the fact that [a named female person] resident of Larissa was unable to put up resistance because she was in a state of utter drunkenness and total loss of consciousness by having voluntarily consumed alcoholic beverages and performed extramarital sexual intercourse on her.

That court sentenced Mr Kommatas to imprisonment for four years. It is that particular conviction and related sentence in Greece that forms the basis of the extradition request made by the Hellenic Republic.

3    On 10 July 2014, the Chief Magistrate of Queensland, exercising the administrative function as a persona designata conferred on magistrates by the Extradition Act 1988 (Cth) (the Act), determined that Mr Kommatas was eligible for surrender to the Hellenic Republic in relation to the extradition offence of sexual abuse of an incompetent person, contrary to Art 338(1) of the Greek Criminal Code. Accordingly, pursuant to s 19(9) of that Act, his Honour committed Mr Kommatas to prison to await, in relation to that offence, surrender under a surrender warrant or temporary warrant or release pursuant to an order under s 22(5) of that Act.

4    Mr Kommatas has, in turn, instituted proceedings under s 21 of the Act for the review of the order made by the Chief Magistrate. On such a review, the task of this Court is to exercise the judicial power of the Commonwealth so as to determine whether the decision of the magistrate concerned was right or wrong and, if wrong, what decision should have been made: see Pasini v United Mexican States (2002) 209 CLR 246.

5    At one stage, the Act conferred that review jurisdiction upon state and territory Supreme Courts in the exercise of federal jurisdiction. This Court had an appellate jurisdiction in respect of review judgments. As the Act presently stands, the original jurisdiction to review the decision of a magistrate reposes only in this Court: see s 21(1). It may well be that some revision of the Court’s rules and related forms is necessary so as to take account of the Court’s possession of this original jurisdiction. By that I mean that it does not appear to me, nor have counsel’s researches revealed, any express provision in the rules as presently cast for practice and procedure in relation to an exercise of original jurisdiction under s 21 of the Act. Mr Kommatas chose to initiate proceedings by way of an application for judicial review. The Hellenic Republic, which is the only active party respondent to the review, quite properly took no objection in relation to matters of form concerning the manner by which the proceedings were initiated. It is not necessary further to dwell upon any subject concerning practice and procedure.

6    There was no application for further evidence to be admitted pursuant to s 21A of the Act. Thus the review proceedings have been conducted by reference to the material which was before the Chief Magistrate.

7    Although at one stage the prospect of the seeking of leave to amend the grounds upon which review was sought was canvassed in submissions made on behalf of Mr Kommatas, in the end no application for amendment was pressed. Rather, the ground upon which review was sought was that specified in the originating application, namely:

The learned Chief Magistrate erred in finding that the judgement of the Court of Appeal of Thessaloniki acted as the duly authenticated warrant issued by the extradition country for the arrest of the Applicant for the offence or alternatively was a duly authenticated copy of such a warrant for the purpose of s 19(3)(a) of the Extradition Act 1988.

8    By s 19(1), (2) and (3) it is provided:

Determination of eligibility for surrender

(1)    Where:

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

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

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

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

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

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

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

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

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

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

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

(a)    if the offence is an offence of which the person is accused--a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

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

(i)    the conviction;

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

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

(c)    in any case:

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

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

[emphasis in original]

9    Also pertinent is s 10(1), which provides

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

10    The question at issue entails both the true construction of s 19(3)(a) of the Act, as well as the application of that provision to the facts of this case. In particular, the statutory construction question is, what is meant or embraced by the term, “warrant issued by the extradition country for the arrest of the person for the offence”.

11    There is no issue in this case that the document identified on behalf of the Hellenic Republic as falling within what is said to be the arrest warrant is “duly authenticated”.

12    I can, like the Full Court in Cabal v United Mexican States (2001) 108 FCR 311 at [108], do little better than cite with approval, for I am bound so to do by the Full Court, the approach taken by French J (as his Honour then was) at first instance in Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at [144] and [145] (Cabal):

144    The Shorter Oxford English Dictionary defines “warrant” in the documentary sense in the following ways relevant for present purposes:

“8.    A document issued by a monarch, an officer of State, or an administrative body, authorizing a particular action.

9.    A writ or order issued by some authority, empowering a police or other officer to make an arrest, search premises, or carry out some other action relating to the administration of justice.”

Definitions from various legal dictionaries which were relied upon do not add anything to that ordinary meaning. It is that meaning which is to be applied in the Extradition Act and not a technical meaning based on any particular legal regime.

145    In my opinion therefore, an order empowering a public officer to take a person into custody for an extraditable offence is sufficient for present purposes. The form and content of the order that constitutes a warrant for the purposes of s 19(3)(a) may vary from country to country and the Act must be construed to allow for such variation. It is not necessary that the document in question comply with the procedural and content requirements of the criminal laws of the States or the Commonwealth of Australia or analogues thereof – Ichiyo Ujiie v Republic of Singapore (unrep Fed Court 18/10/95 Wilcox J). Nor is it necessary to characterisation as a warrant that other steps are required to implement the order or to execute it under the municipal law of the requesting State. Neither the magistrate nor this Court upon review is obliged to inquire into the procedural requirements of the laws of Mexico associated with the issue of such documents. The magistrate and this Court may be satisfied upon appropriate evidence, that by reason of its source, authorship, legal nature and the relationship of its contents to those of other supporting documents, the document in question is a warrant for the purposes of s 19(3)(a).

13    Thus, a warrant issued by the extradition country for the arrest of the person is neither more nor less than an order which empowers a public officer to take a person into custody for the extradition offence, according to the law of that extradition country.

14    Evidence as to the law in the Hellenic Republic formed part of the evidence which was before the Chief Magistrate and is now before me. That evidence takes the form of a statement from the Public Prosecutors Office of the Court of Appeal of Thessaloniki dated 21 February 2013. According to the English translation of that statement:

On the basis of the Greek legislation, the enforcement order for the arrest and imprisonment of any person who has been sentenced, is the final judgment of the court which tried the case. In this case, the judgement, … of the Missed Jury. Appellate Court of Thessaloniki, whereby the person sought was pronounced guilty and the four (4) year prison sentence was imposed upon him is immediately enforceable and constitutes the lawful judicial document for the arrest and imprisonment of the above and of course for the satisfaction of the request for his extradition, on which we insist.

[sic]

15    The “insistence” mentioned in this passage, though of course a matter to be noted as between nations, is in this Court of no moment. What is of moment is the evidence offered in the statement as to the effect under Greek law of the order of the Appellate Court of Thessaloniki. It was put that, on behalf of Mr Kommatas, that there was no evidence as to whether an arrest warrant might also have been issued under Greek law. True it is that, in terms of criminal practice in Australia, where an order of an appellate court necessitates the imprisonment of a person hitherto at large an arrest warrant is separately issued. That is as may be in relation to a proceeding under the Act. What is relevant is that the order of the Appellate Court Thessaloniki, according to Greek law, operates of its own force as lawful authority for the apprehension of Mr Kommatas. In my view, that order answers the description of a warrant issued by the extradition country for the arrest of the person for the offence.

16    Attention has been given to s 19(3)(a) because it was conceded that Mr Kommatas’ personal absence from Greece at the time when the Court of Appeal gave its judgment meant that, though there was a conviction entailed under Greek law, the effect of s 10(1) of the Act was that, for the purposes of the Act, he was deemed not to have been convicted of the extradition offence but rather accused of that offence. That means that it is unnecessary to determine whether the fact that he was legally represented at the appeal means that he ought not be regarded as a person who was absent. Different views have been expressed in this Court as to the meaning of “absent” for the purposes of the Act: see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 and Hellenic Republic v Tzatzimakis (2003) 127 FCR 130 (Tzatzimakis).

17    In Tzatzimakis at [94], Finkelstein J adverted to some of the difficulties in construction which attend the word “absence” as used in the Act. To the difficulties to which his Honour there adverted might be added whether a person could be said to be absent where he had been represented by a lawyer at the appeal and it was the appeal concerned which gave rise to the relevant conviction in respect of an extradition offence. Even assuming though, as I do and as did the parties, that the representation by a lawyer of Mr Kommatas at the appeal nonetheless had the effect of making him, for the purposes of s 10 and s 19 of the Act, a person who was absent, the end result is that there is, in my view, evidenced a duly-authenticated warrant issued by the extradition country for his arrest.

18    It was submitted that some narrower or different view ought to be taken of the term “warrant issued” by the extradition country for the arrest of the person for the offence. It is true, as was submitted on behalf of Mr Kommatas, that the effect of surrender is to interfere with the liberty of a person. Equally, the Act must be construed having regard to its purpose and intended application. That purpose is to provide for the procedure to be followed subject to such modification as may be permissibly made by regulation having regard to a particular treaty, which will govern the extradition from Australia to a wide variety of other countries with which Australia chooses to enter into treaty relations regarding extradition. It is only to be expected that the legal systems of those countries will differ in detail, if not more than detail, from the Australian legal system, including in relation to the type of document which, under the law of a particular country, is regarded as sufficient lawful authority for the arrest of a person.

19    Once that purpose is borne in mind, the construction favoured by French J in Cabal is a compelling one. Even if I were not bound by the Full Court to follow that construction, it is one I would reach myself.

20    For these reasons, then, the decision to which the Chief Magistrate came is one which, conducting a review afresh myself, I also come. There is a warrant for Mr Kommatas’ arrest. There is no other challenge made to the order made under s 19(9) by the Chief Magistrate. That being so I confirm the order.

21    It follows that Mr Kommatas is a person who is eligible for surrender within the meaning of s 19(2) of the Act in relation to the following extradition offence, namely an offence against s 338(1) of the Greek Criminal Code more particular described above.

Associate:

Dated:    19 November 2014