We are one of the few criminal law firms who regularly appears in international extradition matters. The reason for this is our reputation for high quality service and our excellent relationships with embassies and consulates. International extradition is affected depending on the treaty or mutual assistant arrangement with another country.
Where another country is seeking to extradite a citizen, permanent resident or visa holder in Australia, the process begins with a request from the requesting country to the Federal Government in Australia. The Attorney General will receive the request and render a Notice of receipt of the request, which will contain the charges that the accused person is facing. The matter is thereafter handled between the Department of Foreign Affairs and Trade, the Attorney General’s Department and the Australia Federal Police. The country seeking extradition will have to present to the Australian Government materials in support of their request, such as Arrest Warrants from the requesting country and materials sourced from the Brief of Evidence prepared. The matter is then placed before a Magistrate in Australia to affect a Warrant for the person’s arrest, pursuant to subsection 12(1) of the Extradition Act 1988.
In some cases, the person the target of the extradition will not even know that the request is expected. Extradition requests can be made where an individual is accused or charged with a serious crime. However, extradition requests will often be refused where the country seeking extradition imposes the death penalty for the crime alleged.
Depending on the country in question, the process can take weeks, months or even years to complete. Once extradition is granted, an arrest warrant will be issued and the AFP will arrest the person the subject of extradition and take them into custody. They then must have the opportunity to seek legal advice and must be brought before a Court as soon as practicable. Bail is exceptionally difficult in these cases. This is both due to how the relevant legislation is drafted and the case law that has developed as a result. Our office has, however, achieved bail for people facing extradition notwithstanding these hurdles.
The usual considerations and presumptions that apply to bail proceedings in the Victorian context do not apply to bail in the extradition context. Most particularly, the Court is disallowed from considering whether the accused person is likely to be at risk of arbitrary detention. The legislation was created in such a way that there is a general rule that accused persons will be remanded in custody pending extradition. This is regardless of whether they have been tried or convicted, their age or state of their health, their ties to the Victorian jurisdiction or their lack of any criminal priors. Notwithstanding the very real impact that this can have on the person remanded, the law of extradition sees their remand as administrative and not punitive. It is a function of complying with its treaty obligations to its international allies.
An accused person facing extradition must satisfy the Court that:
- Special circumstances exist that justify the grant of bail; and
- They do not present any real risk of flight.
Pursuant to the case of United Mexican States v Cabal (2001) CLR 165, the onus is on the accused person to satisfy the Court of these factors. The High Court in Cabal also identified that there is a presumption that a person facing extradition is a flight risk.
However, there have been cases that have highlighted the combination of circumstances that can support a grant of bail and bail has been granted in extradition cases, albeit rarely. We are one such firm that has accomplished bail in extradition cases, with the support of experienced counsel briefed by our office in these cases. Notwithstanding the restrictions and hurdles, bail is always a matter of discretion and our office is able to work quickly and thoroughly to prepare bail applications in circumstances of extradition. There has also been, in many ways, a shift in the bail situation as a result of the COVID 19 environment and the challenges to international travel. If yourself or a loved one is facing extradition internationally, please contact our office urgently to discuss your situation and to receive advice in relation to your options.
Interstate extradition occurs when another state of Australia seeks to extradite a Victorian resident or visitor to face criminal allegations. Interstate extradition is governed by the Service and Execution Process Act (SEPA), which is a federal piece of legislation that governs interstate extradition. The process of extradition commences when the state seeking extradition commences their criminal proceedings (ie prepares and executes a charge sheet, summons, Court attendance notice and warrant for arrest). Thereafter, that process can be served in another state but must be affected in the same way as service of this process would normally be affected in the state of origin. Special rules do, however, apply when the entity being served is a body corporate or company.
A person can be extradited interstate, where a warrant is executed in the requesting state and the person is apprehended in the other state. The person may be apprehended by a member of the police force in the state within which the person was found (ie Victoria Police), a Sheriff of Victoria or his/her officers, or a member or special member of the Australian Federal Police. Concerningly, it is not necessary for the apprehending officer to produce the warrant when the person is apprehended. A person may also be apprehended, released and re-apprehended under the same warrant. Although, the warrant must be produced when the person is re-apprehended (if that occurs).
Under SEPA, an apprehended person is to be taken before a magistrate of the State within which they are apprehended as soon as practicable. Once the person is brought before the Magistrate, the Magistrate can order that the person be released, adjourn the proceeding for such reasonable time as the Magistrate specifies, remand the person in custody or bail the person as the Magistrate specifies. The Magistrate may specify the conditions on bail. Interestingly, and also concerningly, the Magistrate is not bound by the rules of evidence when making a decision in relation to custody or bail under section 83 of SEPA. Alternatively, the apprehended person will be remanded into custody awaiting transit to the arresting State.
Unlike the extradition and bail process relating to international extradition, the bail laws governing the state in which the apprehended person is arrested applies to the bail proceedings. Accordingly, Victorian bail laws apply to bail proceedings relating to interstate extraditions of apprehended persons. However, where the arrested person is bailed, it will be a condition of bail that he surrender himself or herself as soon as practicable to the State where the person is to be extradited. Where a person is remanded in custody, a Magistrate may make orders relating to the return of the person in custody to the State where the person is to be prosecuted.
These kinds of proceedings can be intensely stressful and complicated. There may be issues relating to the validity of the warrant, the process of extradition and how that person is either remanded or bailed and thereafter expected to relocate to another state. These proceedings also occur swiftly and without notice. Accordingly, it is important that you engage an experienced criminal lawyer who can immediately assist, advise and appear for you. You may also require assistance to locate an interstate lawyer who can transition your matter interstate and represent you when your matter proceeds in its home jurisdiction.