Since a suspect has been arrested overseas in relation to the murder of two women in Easy Street, Collingwood, in 1977 (the ‘Easy Street Murders’), there has been a public interest in international extradition and how that operates in Australia. At Galbally Parker Lawyers, we are one of the only firms that appears in international extradition cases and, accordingly, we understand the nature of the jurisdiction and the unusual aspects of such cases, as compared with the normal conduct of criminal cases.
This article will focus on extraditions sought from Australia to destinations overseas and what is required for such extraditions to be affected. It may also surprise (and even shock) readers to learn the rigid framework in which international extraditions operate in Australia and the difficulties experienced in securing and maintaining bail for proposed extraditees (notwithstanding that they have not been found guilty of any crime).
Treaty Requirements for Extradition
In order to be eligible for extradition, there must be a request from a country with whom we have a treaty type relationship. Extraditions are primarily concerned with maintaining international law and relationships with other nation states. However, extraditions are not automatic and must be permitted according to a treaty or memorandum of understanding. Where neither exist, Australia will not be required (and would be very unlikely to) surrender a citizen or resident to another nation state.
Where there is a treaty relationship, another country can request international extradition of an ‘extraditable person’ from Australia to the requesting country. In order to make the request, the requesting country will send an extradition packet to the Office of the Attorney-General of Australia which will contain a covering letter and materials in support of the request, including charge sheets / indictment, evidence relating to the commission of the alleged offence and any warrants for arrest. The Attorney-General’s office will consider the request and assess whether the person sought for extradition is in fact an ‘extraditable person’, by virtue of being a person in relation to whom warrants are in force for their arrest for offences against the law of the requesting country. In the alternative, they may be a person who has been convicted of an offence in another country and who has all or part of their sentence outstanding.
Determining Extraditable Persons and Offences
The Attorney-General will also have to consider whether the offence for which the person is sought is, in fact, an ‘extradition offence’. An offence will only be an ‘extradition offence’ if it is punishable by a period of imprisonment of not less than 12 months. However, there are extradition objections that apply to offences that are political in nature, are discriminatory (ie, an offence related to the persons race, sex, sexual orientation, religion, nationality or political opinions), where the offence does not constitute an offence in Australia and in circumstances where the person sought has already been acquitted or pardoned for the extradition offence.
Role of the Attorney-General and Arrest Procedures
Once it is confirmed that the person sought for extradition is an extraditable person and the offence an extraditable offence, the Attorney General will refer the matter to a Magistrate in order to issue a warrant for the person’s arrest. The warrant will then be sent to the AFP to execute and, once the person is arrested, they are remanded into custody. This means that they are remanded to a prison, just like any other person charged with a serious offence but denied bail. The difference is that bail, in extradition cases, is determined entirely by the extradition legislation and associated case law. The Bail Act in Victoria does not apply. In addition, when a Magistrate is making decisions in relation to extradition matters, they are not doing so as a representative of the Magistrates’ Court. Rather, they are individually assigned power under the Act to make decisions in an individual capacity rather than in their capacity of an office bearer of the Magistrates’ Court.
Bail Challenges in Extradition Cases
Bail in extradition cases is exceptionally difficult to achieve, predominantly because the main priority at law is to secure the person for extradition. When the Australian Federal Police have arrested a person pursuant to an extradition warrant, the main objective is to ensure that they can comply with their international obligations. The presumption of innocence of the strength of the case against the person plays no part in the Attorney-General’s role nor in the Court’s determination in relation to bail.
Extradition Proceedings in the Magistrates’ Court
Once a person is arrested in relation to an international extradition arrest warrant, the Magistrates’ Court will have conduct of the extradition proceedings and will hear any objections that the person sought may have in relation to their extradition. Extradition objections are narrow and, by and large, the process is administrative in nature. In almost every case, the Court will find the person eligible for surrender. Thereafter, the file is returned to the Attorney-General’s Office, which will invite the person sought for extradition to make submissions in relation to why they should not be surrendered. This is the final stage of the extradition process. It affords the Attorney-General the ultimate and final discretion as to whether to surrender the person sought to the requesting country. The decision as to whether to surrender a person can be perfunctory because the person sought has consented to surrender. Or it can take months, if not years, because the person sought for extradition has made comprehensive submissions as to why the Attorney-General should use their discretion not to surrender the person to the requesting state. It may be that the person sought has complex medical needs, is elderly, has dependent children, is concerned about nefarious outcomes which may flow from extradition or may have other compelling personal or legal circumstances which may need to be considered by the Attorney-General before the ultimate decision is made.
Final Decision and Surrender Process
If the Attorney-General decides to surrender the person, they will be served with a surrender notice and the surrender will be required to take place within two months of the warrant of surrender / extradition being signed by the Attorney-General. Prior to being physically surrendered, the Attorney-General’s office will conduct a medical examination of the person sought and will confirm the arrangements with the requesting country. Those arrangements will not be provided to the person sought, save that they are likely to be told that they will be extradited within the next 1-2 weeks.
The final stage of the extradition occurs when the law enforcement officials from the requesting country arrive in Australia. The Australian Federal Police will then travel to the prison where the person being sought for extradition is held, will remove them from custody pursuant to the warrant and will then transport them to the nearest international airport (if not also via an AFP office) with their travel documents, in order that they can be surrendered to international law enforcement, boarded on to a plane and sent to the requesting country for prosecution.
Seek Legal Advice from an Experienced Extradition Lawyer
International extradition is a niche area and most criminal defence lawyers have no experience dealing with and defending international extraditions. However, in an increasingly global world, international extraditions are becoming more common. If someone you love is being sought for extradition, it is imperative that you receive prompt and competent legal advice from a lawyer experienced in international extraditions. Our team at Galbally Parker Lawyers have that experience.
