FEDERAL COURT OF AUSTRALIA

Kalinovas v Republic of Lithuania [2015] FCA 961

THE COURT ORDERS THAT:

1.    Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth) (the Act), the orders made by Magistrate Andrews pursuant to s 19(9) of the Act on 23 January 2015 be confirmed.

2.    The application be dismissed.

3.    There be no order as to costs.

THE COURT NOTES THAT:

1.    Pursuant to s 21(6)(g) of the Act, the Court has determined that the applicant is eligible for surrender, within the meaning of s 19(2) of the Act, to the Republic of Lithuania in relation to the extradition offences of:

(a)    making a fake non-cash payment instrument, faking a genuine electronic payments instrument or illegal disposal of an electronic payment instrument or data thereof, contrary to Paragraph 1 Article 214 of the Lithuanian Criminal Code;

(b)    illegal connection to an informational system, contrary to Paragraph 1 Article 198 of the Lithuanian Criminal Code;

(c)    illegal use of electronic payment instrument or data thereof, contrary to Paragraph 1 Article 215 of the Lithuanian Criminal Code; and

(d)    fraud, contrary to Paragraph 2 Article 182 of the Lithuanian Criminal Code.

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

REASONS FOR JUDGMENT

1    The Republic of Lithuania (Lithuania) seeks the extradition of Mr Kalinovas. A magistrate of the Local Court (the Magistrate) determined the eligibility for surrender pursuant to s 19 of the Extradition Act 1988 (Cth) (the Act). His Honour determined that Lithuania satisfied the eligibility criteria for surrender as set out in s 19 of the Act and determined that there was no applicable extradition objection. His Honour made an order pursuant to s 19(9) of the Act committing Mr Kalinovas to prison to await surrender or release under the Act. This proceeding is an application pursuant to s 21(1)(a) of the Act for review of that order.

2    Mr Kalinovas states that he is aggrieved by the decision because:

1.    [He] contends that the Respondent failed to satisfy each of the mandatory requirements set out in section 19(a) – (c) [sic] inclusive; and

2.    [He] raised an extradition objection pursuant to the terms of Section 7(c) of the Act, and the Magistrate failed to place any or sufficient weight on the evidence advanced by the Applicant. The Applicant will submit that his was in large part as a result of the Magistrate misdirecting himself in law as to the nature and application of the test to be applied.

3    Section 19 of the Act relevantly provides:

(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.

4    Subject to the matters raised in the grounds of review and as specifically raised at the hearing, Mr Kalinovas accepts that the preconditions as set out in s 19(1) of the Act for conducting s 19 proceedings have been satisfied, as determined by the Magistrate.

5    The grounds for review, as stated in the application, are stated to be:

1.    The Magistrate misdirected himself in respect to the question as to whether the Respondent had satisfied the mandatory requirements set out in sections 19(a) and 19(c) [sic] respectively;

2.    The Magistrate misdirected himself as to the correct application of the test applicable to the extradition objection raised by the Applicant;

3.    Further or in the alternative to 2 above, the Magistrate misdirected himself as to the weight that could have and should have been afforded to the evidence adduced by the Applicant in support of his extradition objection.

6    These grounds were refined by Mr Kalinovas at the hearing. For the purposes of this application, he accepts that the requirements of s 19 of the Act have been satisfied save for:

    While documents purporting to be “supporting documents” were produced to the Magistrate for the purposes of s 19(2)(a), they did not constitute “supporting documents” within the meaning required by s 19(3)(a), in that they did not relate to an offence of which he was “accused” but to an offence of which he was “suspected”. Section 6(a)(i) of the Act relevantly defines an extraditable person as where:

[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;

(Emphasis added)

    There are substantial grounds for believing that there is an extradition objection in relation to the offence for the purposes of s 19(2)(d) of the Act. That objection satisfies s 7(c) of the Act which provides:

on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or …

7    Mr Kalinovas asserts that, on surrender to Lithuania, he will be punished, restrained or restricted in his personal liberty by reason of his religion and nationality.

8    Lithuania submits that a challenge based on the supporting documents is not open to Mr Kalinovas in this application and that, in any event, the definition has been satisfied. Mr Kalinovas accepts that he bears the onus of establishing the extradition objection relied upon for the purposes of this application.

9    The parties have filed a statement of agreed facts and issues. Relevantly, the agreed facts are as follows:

    On 2 October 2013, Australia received a “Request for Extradition of Paulius Kalinovas” (Extradition Request) dated 11 June 2011.

    The Extradition Request alleged that between 25 November 2008 and 18 November 2009 Mr Kalinovas, as a member of an organised group, fraudulently obtained funds from over 30 internet banking clients of SEB Bankas AB and Swedbank AB (banks operating in Lithuania).

    On 5 March 2010 an order was made by D. Butrimienė, Judge of the 1st District Court of Vilnius, for the “constraint – arrest” of Mr Kalinovas.

    On 8 December 2013, a Notice of Receipt of Extradition Request was signed by the Honourable Michael Keenan MP, Minister for Justice, pursuant to s 16 of the Act.

    On 20 January 2014, a Magistrate of the Australian Capital Territory issued a warrant, pursuant to s 12(1) of the Act, for Mr Kalinovas’ arrest.

    On 16 April 2014, Mr Kalinovas was brought before a magistrate in New South Wales and remanded in custody pursuant to s 15(2) of the Act.

    On 17 December 2014, the Magistrate conducted proceedings, pursuant to s 19(1) of the Act, to determine whether Mr Kalinovas was eligible for surrender in relation to the extradition offences for which Lithuania seeks extradition.

    On 23 January 2015, the Magistrate determined that Mr Kalinovas is eligible for surrender in relation to the four extradition offences. The Magistrate made orders pursuant to s 19(9) of the Act.

The nature of review by this Court pursuant to s  21 of the Act

10    In Pasini v United Mexican States (2002) 209 CLR 246, Gleeson CJ, Gaudron, McHugh and Gummow JJ described the functions of the magistrate under s 19 of the Act, and of the Federal Court under s 21 of the Act, in the following way, at [18]:

The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power.

11    Pursuant to s 21(6)(d) of the Act, in conducting the review under s 21, this Court is permitted (subject to s 21A) to have regard only to the material that was before the Magistrate.

12    Accordingly, the nature of the Court’s task in conducting a review under s 21 is not in the nature of judicial review where the Court is limited to identifying and correcting legal error. Instead, the nature of the review is a “rehearing”, in which the Court is authorised to reach its own conclusions as to whether the person is eligible for surrender. This rehearing is required to be conducted on the basis of the material that was before the Magistrate (subject to s 21A of the Act) (Dutton v O'Shane (2003) 132 FCR 352 at [148] per Finn and Dowsett JJ, with whom Conti J agreed on this point, at [209]).

Are the documents, which were produced to the Magistrate, “supporting documents” as defined in s 19(3) of the Act?

13    Mr Kalinovas’ challenge to the “supporting documents” is limited to an assertion that they relate to offences of which he is “suspected” and not to offences of which he is “accused or convicted or sentenced”. He submits that it follows that they are not supporting documents for the purposes of s 19(2)(a) of the Act and that he is not eligible for surrender. Lithuania contends that Mr Kalinovas is “accused” of the offences for which extradition is sought within the meaning of the subsection and that the relevant supporting documents required to be produced to the Magistrate were the three documents for the purposes of ss 19(3)(a), 19(3)(c)(i) and 19(3)(ii).

14    I shall deal first with the relevant requirements of s 19(3) of the Act.

Section 19(3)(a) – warrant for the arrest of the person for the offence

15    The first supporting document required to be produced to the Magistrate , pursuant to s 19(3)(a), was a warrant for the arrest of the person for the offences. To determine whether a warrant is in force for the arrest of a person for an offence in relation to a civil law jurisdiction, it is appropriate to consider the requirements of the Act broadly, rather than seeking to establish precise equivalence between common law and civil law systems and between countries (O’Connor v Zentai (2011) 195 FCR 515 per Besanko J at [53]).

16    An order empowering a public officer to take a person into custody for an extraditable offence is sufficient. 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 (Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 (Cabal (No. 3)) per French J at [145], approved in Cabal v United Mexican States (2001) 108 FCR 311 (Cabal Full Court) at [108]).

17    The Extradition Request prescribed by Lithuania includes, as “Annex 4” a copy of a 5 March 2010 ruling of a Judge of the 1st District Court of Vilnius, entitled ‘Ruling on imposing a measure of constraint- arrest’. This ruling stresses that the Court has considered a petition of the prosecutor to ‘impose a measure of constraint – arrest’ on Mr Kalinovas. The ruling then outlines the conduct of which he is accused and concludes with an order imposing ‘the measure of constraint- detention’ on Mr Kalinovas.

18    The Extradition Request, at [32], explains that this 5 March 2010 ruling is ‘the grounds for arrest of the suspect’ and that it operates as the equivalent of an arrest warrant.

19    There is no dispute that the supporting document is, pursuant to s 19(3)(a) of the Act, a warrant for arrest of the person for the offences. The ruling of the Judge in Vilnius operates as the equivalent of an arrest warrant for the purposes of s 19(3)(a) of the Act.

The requirements under ss 19(3)(c)(i), 19(c)(ii) and 19(7)

20    The Magistrate determined that ss 19(3)(c)(i), 19(3)(c)(ii) and 19(7) were satisfied. Mr Kalinovas does not dispute that determination.

Section 19(3)(c)(i) – description of offence and penalty

21    The second supporting document required to be produced to the Magistrate pursuant to s 19(3)(c)(i) was a statement in writing setting out a description of, and the penalty applicable to, the offences.

22    The Extradition Request states that ‘The text of the Lithuanian Criminal Code relating to these four offences is set out in Annex l to the Extradition Request’. The annexure sets out the description of, and the penalty applicable to, each of the offences of which Mr Kalinovas has been charged.

23    The requirement of s 19(3)(c)(i) of the Act is met.

Section 19(3)(c)(ii) – statement of conduct constituting the offence

24    Pursuant to s 19(3)(c)(ii) of the Act, a statement in writing setting out the conduct constituting the offence is required to be produced to the Magistrate.

25    There are a number of well accepted principles regarding the nature and sufficiency of the required statement of conduct constituting the offence. These can be summarised as follows:

(a)    In accordance with s 10(2) of the Act, it must be a statement of the ‘acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed’ (Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297; see also Griffiths v United States (2005) 143 FCR 182 at [51]).

(b)    The conduct by virtue of which an offence is alleged to have been committed lies 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 (Griffiths at [51]).

(c)    Whether the statement of conduct is to be accepted as a statement setting out the conduct constituting the relevant extradition offences is a ‘matter for practical judgment and assessment, not for over zealousness in discerning deficiencies’ (Zoeller at 294).

(d)    It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition. The test must be whether the document relied upon sets out the essential elements of each offence for which surrender is sought, clearly identifies the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof and gives sufficient particularity to ensure that the requesting State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made (Timar v Republic of Hungary [1999] FCA 1518 at [64] per Weinberg J).

(e)    Documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own and, perhaps, less than perfect from our perspective. Such documents must be read fairly and not perversely (Timar at [63]).

(f)    The statement setting out the conduct constituting the offence may consist of a number of documents, such that it is permissible to have resort to all of the supporting documents to ascertain what that relevant conduct is (Griffiths at [50]).

26    The Extradition Request (at [3] to [29]) contains a detailed and sufficient statement of the conduct constituting the extradition offences.

27    The requirement of s 19(3)(c)(ii) of the Act is met.

Section 19(7) – the requirement for supporting documents to be “duly authenticated”

28    Section 19(3) of the Act requires that the supporting documents be “duly authenticated”. Section 19(7) of the Act provides that a document is duly authenticated if, relevantly:

(a)    it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b)    it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:

(i)    in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; ...

29    The term “officer” in s 19(7)(a) is not defined. However, it is not limited to an officer of a court (Prabowo v Republic of Indonesia (1997) 74 FCR 599 at 603 per Wilcox, Moore and Tamberlin JJ).

30    In Cabal (No. 3) at [172], French J discussed the concept of an official or public seal for the purposes of s 19(7)(b)(i):

In my opinion the sealing of supporting documents for the purposes of s 19(7) may be effected by a seal placed on the first page of the bundle provided that it is of such a nature and so placed that it relates to all of them and purports to seal all of them. It may be that a seal stamped or printed on the first page of the first document might not, on the face of it, apply to all documents in the bundle. However, in this case a silver seal was connected by a ribbon passing through all of the documents in the bundle and did thereby purport to seal them all.

31    As to the supporting documents relied on by Lithuania:

    each of the supporting documents is contained within the Extradition Request;

    the Extradition Request was provided by way of one bound and sealed bundle;

    the first page of the bundle is a certificate signed by an officer of Lithuania, attesting to the documentation provided in the support of the request for the extradition of the Respondent;

    the certificate is stamped with the official stamp of the Prosecutor General’s Office of Lithuania; and

    the bundle comprising the Extradition Request is sealed with the stamp of the Prosecutor General’s Office of Lithuania by means of a seal being affixed over a ribbon which passes through all of the documents in the bundle, and the seal is stamped with the official stamp of the Prosecutor General’s Office of Lithuania.

32    The requirements of the authentication of the supporting documents are satisfied.

Whether Mr Kalinovas is “accused” of the extradition offence

33    From the Extradition Request:

    The Cyber Crimes Investigation Board of the Lithuanian Criminal Police Bureau conducts a pre-trial investigation into the nominated breaches of the Criminal Code of Lithuania.

    The alleged offences are described, as is Mr Kalinovas’ involvement in them.

    As to the location where the alleged offences occurred, the document states:

Although the exact place where they had initially agreed to commit those criminal offences was not established in the course of the investigation, nevertheless, the data collected in the course of the investigation obviously show that all criminal acts described in the Decision to recognise P. Kalinovas as a suspect, were committed while P. Kalinovas was staying in Australia and communicated with Mantas Pekarskas via the software applications “SKYPE” and “Trillian” installed in their computers. The details of the crimes were discussed (coordinated) between them only via the electronic means of communication, because P. Kalinovas was in Australia and M. Pekarskas was in Lithuania.

(Emphasis added)

    The 1st District Court of Vilnius ruled that arrest be imposed upon Mr Kalinovas on 5 March 2010. This is accepted to be the equivalent of an arrest warrant. By a resolution of the Prosecutor of the Pre-trial Investigation Control Division of 3 May 2010, Mr Kalinovas ‘was acknowledged as a suspect, was suspected of the above-mentioned committing criminal acts and announced wanted’. The Court concluded that the available data enabled one to assume that Mr Kalinovas ‘could have committed the criminal acts he is incriminated of’. It follows that Mr Kalinovas is liable to be brought by the prosecutor to the District Judge of the area where investigation is conducted within 48 hours of his return to Lithuania.

    After questioning by the pre-trial investigation Judge, the Judge decides whether to leave the ruling to impose arrest in force.

    The criminal matter in which the request for extradition is made is in the first stage of Lithuania’s criminal procedure: the pre-trial investigation stage which precedes a trial procedure in courts of first instance.

    Mr Kalinovas is said to be “a suspect”. This is said to comprehend:

(1)    when a person has been detained on grounds of suspicions of the criminal act;

(2)    when a person is being questioned about an act that he is suspected of;

(3)    when a person is being summoned to a questioning and for whom notification of suspicion provided; and

(4)    when a person is in hiding or his/her location is unknown, he/she shall be acknowledged as a suspect under prosecutor’s resolution or the ruling of a pre-trial judge, and in most urgent cases, by a decision of a pre-trial investigation officer.

The fourth of these categories applies to Mr Kalinovas.

    It states: ‘After the pre-trial investigation is over and the prosecutor has drafted the act of indictment in the criminal case during pre-trial investigation whereof the person was acknowledged as a suspect of committing certain criminal act, and after the case is submitted to the court, the suspect becomes the charged person.’

    Further, it states: ‘An accused in respect of whom a judgment of conviction has been adopted shall become a convict, and a suspect in respect of whom a judgment of acquittal has been adopted shall become an acquitted person.’

    All possible procedural acts that can be performed in Mr Kalinovas’ absence have been performed. In order to continue the criminal procedure, Mr Kalinovas must participate personally, that is, prior to drawing up an indictment and bringing the case to court.

    Lithuania requests his surrender so that it can conduct the prosecution.

34    It is apparent that Mr Kalinovas has not been brought to trial. He is described only as a suspect. Despite the broad and generous construction to be given to documents which relate to criminal procedures in other countries, the repeated description of him as such and the delineation of the procedural steps to be taken before he can be formally accused support Mr Kalinovas’ assertion that the supporting documents do not relate to an offence of which he has been “accused”.

35    Lithuania submits that this question needs to be determined in the light of differences in the civil law and common law. It points out that the word in the Act is “accused”, not “charged” and that, from the supporting documents, it can fairly be said that Mr Kalinovas is wanted for prosecution. It points to s 6 of the Act and the meaning of “extraditable person”, defined in terms of a person “accused of having committed” an offence and that s 12 refers to a warrant for an “extraditable person”.

36    In any event, Lithuania submits, this is not a matter for consideration within a determination under s 19 of the Act. Rather, it is a matter that was properly taken into account by the Attorney-General in deciding whether to issue a notice pursuant to s 16 of the Act and may be taken into account by the Attorney-General pursuant to his determination under s 22 of the Act.

37    As the Full Court explained in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, at 389, there are four stages in the extradition process under the Act:

    commencement (either the issue of a provisional arrest warrant under s 12(1) of the Act or by the giving of a notice under s 16(1) of the Act).

    remand in that, once arrested, the person is required by s 15 of the Act to be taken before a magistrate and remanded in custody or on bail.

    determination by a magistrate of eligibility for surrender, pursuant to s 19 of the Act.

    executive determination, under s 22 of the Act, as to whether the person is to be surrendered.

38    In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, at 538, Brennan CJ and Dawson and McHugh JJ (with whom Toohey J agreed) stated that the powers of a magistrate, and a Court on review, are administrative in nature and do not extend to a power to review the exercise of power by another repository earlier in the sequence. By s 16 of the Act, the Attorney-General must not give a notice to a magistrate or eligible Federal Circuit Court Judge under s 16(1) of the Act that an extradition request has been received unless he is of the opinion that the person is an extraditable person in relation to the extradition country (s 16(2) of the Act). Accordingly, a notice under s 16(1) is a prerequisite to the proceedings before the Magistrate under s 19 (s 19(1)(b) of the Act). As the Attorney-General found that Mr Kalinovas was an extraditable person and a notice was issued, it is not for the Court to revisit this question for the purposes of the s 16(1) notice.

39    As was stated in Kainhofer (at 538), the magistrate, and the Court, makes an independent determination of the issue on which the existence of his or its power depends. Accordingly, the existence or possible existence of extradition objections fall for consideration at each stage: by the Attorney-General under s 16 of the Act, by the magistrate under s 19 of the Act, by a Court on review and again by the Attorney-General under s 22 of the Act. Their Honours (at 539) explained the question of a consideration of “accused” further and specifically stated that s 19(2)(a) in conjunction with s 19(3)(a) does not make the accusation of the person whose surrender is sought a condition affecting any power conferred by that section:

The s 19 magistrate is neither required nor authorised to determine the issue whether that person is an extraditable person … [He or she] must proceed on the footing that the person whose surrender is sought is an extraditable person … [and his or her function] is concerned solely with the correspondence between the “supporting documents in relation to the offence” produced to the magistrate and the description of “supporting documents” in sub-s (3). … Given that the person is an extraditable person, “the offence” in s 19(2)(a) must be taken to be either an offence “that the person is accused of having committed” or an offence of which the “person has been convicted”.

(Emphasis added)

40    In further clarification, their Honours said (at 540) that the determination under s 19(2)(a) of the Act does not require a finding as to whether the respondent was a person “accused”.

41    Although the reasoning in Kainhofer did not specifically cite the magistrate’s obligation, under s 19 of the Act, to construe the meaning of “accused” in the supporting documents, it is plain that the High Court’s reasoning extends to the existence, or lack thereof, of this obligation. It was put in argument in that case, as reported at 531-2, that the matters in s 19(2) are no mere clerical check list and that only if the respondent was “accused” could the magistrate determine that s 19(3)(a) was met and that this was therefore a matter that had to be decided. Further, counsel submitted, the scheme of the Act requires a magistrate to be satisfied that a person is properly categorised as “accused” in order to be satisfied that the correct supporting documents have been duly authenticated and supplied. Additionally, it was put, the Act does not provide for the extradition of persons required for investigations and the documents showed only that the respondent was wanted for investigation not prosecution.

42    Justice Gummow, in separate reasons for allowing the appeal, stated (Kainhofer at 554) that s 19(3) of the Act assumed that extradition is sought either in respect of an offence of which the person is accused or in respect of which he or she has been convicted and does not proceed on the footing that there is a further category of offences in respect of which the person is neither accused nor convicted. His Honour also said that s 19 does not involve or permit an inquiry as to whether the offences are offences of which the person is neither convicted nor accused. His Honour did, in any event, embark on a detailed consideration of the concept of “accused”. His Honour concluded that there does not have to be an authorised public accusation of equivalent effect to what in common law systems would be treated as an indictment or the laying of information and reasonably extends to invoke the operation of the criminal law by taking whatever steps are necessary to initiate what might fairly be described as a prosecution (at 564).

43    A similar approach was taken by Jessup J in O’Connor at [141]-[142].

44    It follows that, as the s 16 notice had been issued, it is not part of the determination under s 19 of the Act to make a finding as to whether Mr Kalinovas is relevantly an “accused” or only a “suspect”. Lithuania submits that this may be further considered by the Attorney-General in his consideration under s 22 of the Act.

45    Section 19(2)(b) of the Act is not relevant presently.

Dual criminality: sECTION 19(2)(c) OF THE ACT

46    Mr Kalinovas does not challenge the satisfaction of the matters in s 19(2)(c) of the Act. The Magistrate was satisfied as to those matters. However, as this review is a “rehearing”, it must be determined whether s 19(2)(c) is satisfied.

47    Lithuania has made detailed submissions, which I accept, as follows.

The dual criminality requirement - general principles

48    Section 19(2)(c) requires satisfaction, if the alleged conduct (or equivalent conduct) had taken place in New South Wales at the time at which the Extradition Request was received (namely, 2 October 2013), that conduct would have constituted an extradition offence in relation to New South Wales (being, as defined in s 5 of the Act, an offence for which the maximum penalty is imprisonment, or other deprivation of liberty, for a period of not less than 12 months).

49    What is required is duality of criminality in substance. The comparison to be made is between the conduct itself and the New South Wales offence. It is not relevant to compare the elements of the New South Wales offence with those of the Lithuanian offence. There need not be a complete correspondence between the alleged offence and the elements of an offence under Australian law (Harris at 411).

50    In Zoeller, the Full Federal Court made clear, at 299-300, that in considering dual criminality the magistrate is not limited to considering only those facts that are absolutely necessary ingredients of the foreign crime, but rather can consider all facts set out in the materials provided:

But it does not follow ... that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime. The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. 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). ... 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.

51    In performing the task required under s 19(2)(c), s 10(3) of the Act makes it clear that:

…

(a)    where the conduct or equivalent conduct consists of 2 or more acts or omissions—regard may be had to all or to only one or some of those acts or omissions;

(b)    any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.

Summary of the conduct alleged

52    The allegations against Mr Kalinovas are stated in [9] above. From the Extradition Request:

(a)    Mr Kalinovas is accused of having created and distributed malware, which was used to illegally collect the passwords and authentication codes of the internet banking clients (at [19]).

(b)    Those authentication codes and passwords were then used to log in and access the accounts of the banking clients (at [22]-(24]).

(c)    The authentication codes and passwords were also used to make and confirm transfers of funds from those accounts, to other people’s accounts (at [26]).

(d)    The money was then withdrawn by members of the group, from ATMs in Lithuania and Estonia, and distributed among the group (at [26]-[28]).

(e)    The offences for which surrender is sought are, as follows (at [1]):

    making a fake non-cash payment instrument, faking a genuine electronic payments instrument or illegal disposal of an electronic payment instrument or data thereof (contrary to Paragraph 1 Article 214 of the Lithuanian Criminal Code);

    illegal connection to an informational system (contrary to Paragraph 1 Article 198 of the Lithuanian Criminal Code);

    illegal use of electronic payment instrument or data thereof (contrary to Paragraph 1 Article 215 of the Lithuanian Criminal Code); and

    fraud (contrary to Paragraph 2 Article 182 of the Lithuanian Criminal Code).

Offences under New South Wales law

53    Lithuania submits that Mr Kalinovas’ conduct, if it had taken place in New South Wales at the time the extradition request was received, would have constituted the following offences contrary to the Crimes Act 1900 (NSW) (the Crimes Act):

(1)    Conspiring to obtain a financial advantage by deception, contrary to s 192E(l) of the Crimes Act, with a maximum penalty of 10 years’ imprisonment;

(2)    Dealing with identification information, contrary to s 192J of the Crimes Act, with a maximum penalty of 10 years’ imprisonment; and

(3)    Possession of identification information, contrary to s 192K of the Crimes Act, with a maximum penalty of 7 years’ imprisonment.

54    Section 192E(1) of the Crimes Act provides:

A person who, by any deception, dishonestly:

(a)    obtains property belonging to another, or

(b)    obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.

55    Section 192B(1) of the Crimes Act defines the term “deception” to include ‘any deception, by words or other conduct, as to fact or as to law’. Section 192B(2) of the Crimes Act provides that the deception must have been ‘intentional or reckless’.

56    The deception is carried out “dishonestly” if the conduct was dishonest according to the standards of ordinary people and it was known by the defendant to be dishonest according to the standards of ordinary people (s 4B of the Crimes Act).

57    By operation of s 192D(1)(a) of the Crimes Act, “obtain” a financial advantage includes obtaining the financial advantage for oneself or for another person. Accordingly, s 192E(l)(b) applies in circumstances where there is no evidence that the financial advantage was obtained by the applicant but was instead obtained by other members of the group.

58    Section 192D(2) of the Crimes Act defines “cause” a financial disadvantage to include causing a financial disadvantage to another person or inducing a third person to do something that results in another person suffering a temporary financial disadvantage. Accordingly, s 192E(l)(b) applies even if the banks later reimbursed their clients for the fraudulently obtained funds.

59    Lithuania submits that Mr Kalinovas’ conduct in using malware to collect authentication codes and passwords is intentionally or, at the very least, recklessly deceptive and it is dishonest according to the standards of ordinary people and known by him to be dishonest according to the standards of ordinary people.

60    Section 192J of the Crimes Act provides:

A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence.

61    Section 192K of the Crimes Act provides:

A person who possesses identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence.

62    Section 192I of the Crimes Act defines “deal in” to include ‘make, supply or use’ identification information. The term “identification information” means information relating to a person that is capable of being used (whether alone or in conjunction with other information) to identify or purportedly identify the person and includes, relevantly, names and addresses, dates of birth, passport numbers, credit card and financial account numbers, digital signatures and series of numbers or letters or both intended for use as a means of personal identification (that is, passwords).

63    Lithuania submits that the information provided in the Extradition Request (as summarised in paragraph [52] above) demonstrates that Mr Kalinovas dealt in and possessed identification information with the intention of committing, or facilitating the commission of an indictable offence.

64    Finally, Lithuania notes that the crime of conspiracy requires an agreement between two or more persons, including with persons unknown, to commit an unlawful act with the intention of carrying it out (Gerakiteys v R (1984) 153 CLR 317 at 334). Lithuania submits that the conduct alleged in the Extradition Request demonstrates that Mr Kalinovas agreed with members of the organised group to commit unlawful acts and intended to commit unlawful acts, contrary to ss 192E(1), 192J and 192K of the Crimes Act.

Extra-territoriality issue

65    For most of the time of the alleged conduct, Mr Kalinovas was in Australia. In Ngo v United States of America (2009) 177 FCR 411, the Full Court considered the question of whether paragraph 19(2)(c) of the Act requires a formation of a hypothesis in cases where the appellant’s conduct actually occurred in Australia. Lindgren J who agreed with the majority said, at [5]-[6]:

In these circumstances the application of s 19(2)(c) of the Act is simpler, not more complex, than if the appellant's conduct had occurred outside Australia. It is a mistake to think that para (c) of s 19(2) requires an exercise of hypothesisation in all cases. It would turn the provision on its head to treat it as requiring that the facts actually alleged be hypothesised to be different with a view to inquiring whether those different facts would constitute an extradition offence in relation to New South Wales, when the facts actually alleged already do.

It is true that s 19(2)(c) of the Act assumes that the person's alleged conduct constituting the extradition offence may have taken place outside the relevant part of Australia. However, if it took place within that part, the subsection is still capable of being applied. There is no occasion, either, to identify “equivalent conduct” within s 19(2)(c).

66    Accordingly, there is no need to transpose the conduct constituting the extradition offence, or identify equivalent conduct, in circumstances where at least part of that conduct took place in Australia.

Conclusion on dual criminality

67    If Mr Kalinovas’ alleged conduct (or equivalent conduct) in relation to the offences for which his extradition is sought had taken place in New South Wales at the time at which the extradition request was received, that conduct would have constituted an extradition offence in relation to New South Wales. Therefore, the “dual criminality” requirement in s 19(2)(c) of the Act has been established for the offences for which his extradition is sought.

Extradition Objection: s 19(2)(d) of the act

68    The criterion as to the existence of an “extradition objection” formed the primary basis of Mr Kalinovas’ challenge. To reiterate the requirement as set out in s 19(2)(d) of the Act, Mr Kalinovas must satisfy the Court that ‘there are substantial grounds for believing that there is an extradition objection in relation to the offence’.

69    Mr Kalinovas relies on the definition of “extradition objection” as set out in s 7(c) of the Act:

on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions;

(Emphasis added)

70    Mr Kalinovas has the onus to establish that there are substantial grounds for believing that there is an extradition objection.

71    The following issues arise:

    Is the Court in this application bound by the evidentiary rulings of the Magistrate?

    If not, is the evidence adduced by Mr Kalinovas admissible and/or of probative weight?

    Has Mr Kalinovas made out that there are substantial grounds for believing that there is an extradition objection in relation to the offence?

    Do Mr Kalinovas’ complaints concerning what will happen to him in custody or in prison satisfy the conditions for an extradition objection as set out in s 7(c) of the Act?

The evidence in this application

Does the Evidence Act 1995 (Cth) apply and is the Court bound by the evidentiary rulings of the Magistrate?

72    The Evidence Act 1995 (Cth) (the Evidence Act) did not apply to the proceedings before the Magistrate as his Honour was exercising an administrative function as persona designata, not exercising judicial power. Section 4(1) of the Evidence Act states that its provisions only apply to Courts (Cabal Full Court at [141]-[142]). His Honour admitted the evidence filed by Mr Kalinovas, namely his own affidavit and that of Rabbi Ulman. Lithuania objected to certain paragraphs of those affidavits concerning the nature of his fears on return on the basis that they are hearsay and/or have no probative value. His Honour admitted those paragraphs on the basis that they have some probative value and considered that it was a matter of the weight to be attached to that evidence.

73    Lithuania submits that the Evidence Act does apply to this proceeding. The Full Court in Cabal Full Court (per Hill, Weinberg and Dowsett JJ at [189]) concluded that notwithstanding the fact that the provisions of the Evidence Act do not apply to the hearing before a magistrate, they do apply in the proceeding for review brought in this Court. In that case, the Full Court did not accept the decision of the primary Judge that he was not limited to evidence admissible according to the rules of evidence. The same position was taken by the Full Court (Finn and Dowsett JJ) in Dutton at [147], applying Cabal Full Court.

74    It follows that the Court, in conducting a rehearing and reaching its own conclusion on eligibility for surrender, is not bound by the evidentiary rulings of the Magistrate, although limited to the material that was before the Magistrate (see [11] above). As pointed out by Cowdroy J in Snedden v Republic of Croatia [2009] FCA 30 at [29], this may mean that the Court may be restricted in its consideration of the material that was before the Magistrate.

Is the evidence relied on by Mr Kalinovas admissible and/or of probative weight?

75    Mr Kalinovas filed two affidavits, one by himself and one by Rabbi Yoram Ulman, the President of the Rabbinical Council of NSW, Senior Judge of the Sydney Beth Din (Jewish Ecclesiastic Court) and Chaplain to the NSW Corrective Services. Rabbi Ulman is the head of the Friends of Refugees of Eastern Europe, the community organisation of Russian-speaking Jews of NSW. He states that he provides his statement on the basis of information provided by community leaders in Lithuania, on the basis that they cannot and will not be identified, for fear of reprisal by the authorities in that country. Rabbi Ulman explains his interest in, and expertise in, reports of racism and anti-Semitism in Lithuania as a country, and as a region of the former Soviet Union.

76    Lithuania first objected and then withdrew objection to those parts of Rabbi Ulman’s affidavit that set out the history of anti-Semitism in that country during the Holocaust and since that time. In summary:

    Religiously based prejudice has been endemic since the 8th century.

    Since the 1930s, Jews were seen as agents of Russian expansionism and communism, despite mass Jewish emigration after the Russian takeover.

    Virtually all Jews who were in Lithuania during the war were murdered, many by Lithuanians who displayed ferocity and brutality which was ‘the worst in Europe’.

    These deep and cultural attitudes persist today.

    There is still discrimination and racism, reinforced by the fact that the few Jews to enter Lithuania after the war were Russian speakers.

    Accordingly, the number of Jews in Lithuania today is only around 4,000 from a pre-war Jewish population of more than 200,000.

77    Rabbi Ulman also gave evidence, on information and belief on the basis stated, as to the treatment of Jews in the Lithuanian prison system. In summary:

    A person who is Russian speaking and who is identified as Jewish will be treated in a far worse manner than an “ethnic” Lithuanian in the prison system by the authorities such as guards and especially by fellow prisoners.

    The likelihood of violence and physical and mental neglect are higher if the person is Jewish and Russian speaking.

    The families of those in prison report constant racist abuse, violent beatings by inmates and guards, untreated illness and arbitrary denial of visitor rights. This has led to cases of severe depression and mental illness to the point of catatonia.

    There have not been reports of this treatment as the number of Jews imprisoned is statistically insignificant.

78    In oral evidence before the Magistrate, Rabbi Ulman explained the sources of his information, being a ‘very prominent academic who is an activist for human rights’ and a ‘prominent lawyer who has firsthand experience’.

79    Lithuania objected to the evidence, in [77] and [78] above, as inadmissible under the Evidence Act.

80    Mr Kalinovas’ evidence is that he has fears for his safety if he is returned to Lithuania and placed in police or other types of punitive custody in the prison system. He says that he holds fears for his life and his mental health from guards or other inmates by reason of his ethnicity. He says that as an ethnic Russian Jew, he experienced ‘severe racism’ in Lithuania which led to him leaving that country.

81    Lithuania also objected to this evidence.

82    The evidence sought to be adduced goes to whether there are substantial grounds for believing that there is an extradition objection.

83    As to Rabbi Ulman’s evidence, I accept that he has studied the situation in Lithuania, including for the purposes of giving expert evidence in cases before the Migration Review Tribunal and to Minsters of Immigration, as set out in his affidavit. Lithuania submits that this does not extend to expertise as to the operation of the Lithuanian justice and corrections systems and that, as such, his opinion is not admissible to prove the existence of facts as to the operation of that system by reason of s 76 of the Evidence Act. However, I am satisfied that Rabbi Ulman’s constant and consistent study into the nature and extent of anti-Semitism in Lithuania is sufficient for him to give the opinions as set out in his affidavit and oral evidence. The evidence does not go to the operation of the prison system but to the actions of ethnic Lithuanian prison officers and inmates. His study, training and experience enables him to give such opinions and the evidence is admitted pursuant to s 79(1) of the Evidence Act.

84    As to Mr Kalinovas’ evidence, it is admissible to establish his fear. It does not prove the underlying facts that he asserts as the reason for his fear, other than as to his past experience. Lithuania says that he has not provided a basis for his fear. However, I accept that the totality of the evidence, including that of Rabbi Ulman, supports and provides a basis for his asserted fear. I do accept that the generality of Mr Kalinovas’ evidence means that he has only a generalised fear as to what will happen to him in prison from guards and inmates (Evidence Act ss 55(1), 56(1)).

85    Lithuania submits that the makers of the statements that formed the basis of Rabbi Ulman’s information should have been called. However, for the reasons given by Rabbi Ulman, which I accept, it is not reasonably practicable, indeed not possible, to require those persons to give evidence and thereby identify themselves and their families. As such, it is admissible as an exception to the hearsay rule, as it is first-hand hearsay where the maker is not available (Evidence Act ss 62(1), 63(1)).

86    In Snedden, Cowdroy J accepted that the Evidence Act applied but noted and ‘was mindful’ of what had been said by French J (as he then was) as the primary Judge in Cabal and Another v United Mexican States and Others (No. 2) (2000) 172 ALR 743 at 749, albeit where French J held that he was not bound by the rules of evidence, to the effect that the nature of an extradition objection is such that the evidence relied upon to make them out or show substantial grounds for believing that they may exist may be ‘indirect or circumstantial in nature’. In Rahardja v Republic of Indonesia [2000] FCA 1297, the Full Court said (at [47]) that the inquiry concerns future and hypothetical events and that necessarily the Court is required to engage in a deal of speculation, so that it is sufficient if the person establishes a substantial or real chance of prejudice. It is not necessary to show a probability of prejudice or any particular degree of risk of prejudice.

87    There is a degree of inconsistency in the approach stated by Cowdroy J in Snedden, but it is relevant to a consideration of the application of s 135 of the Evidence Act, which is also relied upon by Lithuania. Lithuania submits that it is prejudiced by not being able to cross-examine the informants. However, it had the opportunity, and did, cross-examine Rabbi Ulman, although he was not given notice to attend for cross-examination. Rabbi Ulman explained the information and also the basis for his opinion as to the current situation for Russian-speaking Jews in Lithuania. He was not asked questions as to the information itself or about the availability of the informants.

88    Lithuania submits that the evidence must have some logical, probative value or some rational probative force and that this was lacking. The Magistrate admitted the evidence but gave it little weight. I do not agree that the evidence has little weight. For the reasons set out in Rabbi Ulman’s affidavit, which were not challenged in cross-examination and included the history of and current attitudes of anti-Semitism and racism in Lithuania, I accept that the evidence has logical, rational and probative force.

89    The evidence is not, contrary to Lithuania’s submissions, of a highly generalised nature. It consists of reports from the small number of Russian Jewish inmates and their families, as conveyed by a lawyer representing them and from an activist who, I infer from the evidence, is monitoring their treatment in prison. Bearing in mind how few Jews are left in Lithuania for the historic reasons set out by Rabbi Ulman, it is not unreasonable that the evidence is not more extensive. It is, as Rabbi Ulman explained and as to which he was not challenged, not possible to name or otherwise identify the activist and the academic or the inmates and their families. I appreciate that this means that Lithuania cannot investigate specific assertions or cross-examine those who are said to have suffered the harm, but the asserted and unchallenged prejudice and potential reprisals to those persons, if they were to be made available, outweighs that prejudice.

90    I decline to reject the evidence pursuant to s 135 of the Act.

91    The evidence is relied upon to show that there are substantial grounds for believing that Mr Kalinovas will be punished, detained or restricted in his personal liberty by reason of the fact that he is a Russian Jew. However, the evidence does not amount to proof that people of Russian and Jewish background are all treated, and will all be treated, worse than other Lithuanians in the Lithuanian justice system.

Does the evidence establish an extradition objection within s 7(c) of the Act?

92    Lithuania submits that to establish an extradition objection, Mr Kalinovas must show that there are substantial grounds for believing that he will be prejudiced at trial because he is of Russian nationality and/or Jewish religion, and/or that any punishment imposed would amount to punishment because of those characteristics.

93    Lithuania submits that there is no evidence that there are any reasonable grounds to believe that Mr Kalinovas will be punished at trial by reason of his nationality or religion. Section 7(c) of the Act, it submits, is concerned with the trial and the sentence following trial and has nothing to do with the circumstances of incarceration. It points out that this is consistent with European practice that in cases of extradition, there is concern with the treatment that the person might receive at the hands of the state, that is, the criminal process and not the risk of assault from fellow prisoners because of, for example, his nationality (Nicholls, Montgomery, Knowles, Doobay & Summers, Nicholls, Montgomery and Knowles on the The Law of Extradition and Mutual Assistance, 3rd edition, 2013 (Oxford University Press) at [5.41]).

94    In Republic of Croatia v Snedden (2010) 241 CLR 461 at [21], French CJ said that the antecedents of the extradition objection in s 7(c) of the Act suggest that it is directed to protecting people from extradition to a country in which they might be punished on account of the listed attributes. Chief Justice French referred to the second reading speech for the Extradition Bill 1987 (Cth) (the Bill), where the Attorney-General said that the Bill requires extradition to be refused in any case where the surrender is sought for the purpose of prosecuting or punishing the person on account of the stated attributes and that it requires refusal where any prejudice on any of those grounds may result.

95    Chief Justice French joined in the orders allowing the appeal. The majority reasons (of Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered the construction of s 7(c) of the Act. Their Honours said (at [69]-[70]) that there was no dispute that the subsection requires ‘a causal connection between the punishment the respondent might suffer on trial, after surrender, and his political opinions’. Their Honours explained that:

Section 7(c) relevantly requires the respondent to show that on trial, after surrender, he may be punished because of his political opinions. … The express intention to enlarge the political offence objection was achieved by a requirement that a court take into account the future possibility, on trial after surrender, of prejudice, punishment, detention or restriction in personal liberty by reason of political opinions.

96    Mr Kalinovas’ evidence is not directed to prejudice at trial. It is not directed to prejudice in punishment, detention or restriction of liberty by the state. Section 7(c) of the Act is not directed to what may happen to a person in gaol by reason of the actions of other inmates or guards, where those actions are merely of individuals and not shown to be caused by or condoned by the state. There is no evidence that Mr Kalinovas may be prejudiced, punished, detained or restricted in his liberty by the state, or at his trial, or in his sentence after trial.

97    The extradition objection as defined in s 7(c) of the Act must also be in relation to the offence. Mr Kalinovas’ evidence does not go to his treatment in relation to the offence but to his differential treatment from individual Lithuanians in the confined environment of a gaol to which he will be sent, if convicted of the offence. He has not established a causal connection between any sentence of imprisonment and his nationality or religion or that he will be prejudiced or punished as part of Lithuania’s criminal process.

98    It follows that he has not established that there are substantial grounds for believing that there is an extradition objection in relation to the offence and that the application should be dismissed.

Orders

99    It follows that the orders made by the Magistrate should be confirmed and the application dismissed. As Mr Kalinovas is eligible for surrender, it is also required, pursuant to s 21(6)(g) of the Act, that the Court specify the extradition offences, which have been set out in the Extradition Request.

Costs

100    The parties agree that there be no order as to costs.

Associate:

Dated:    31 August 2015