R v Karsten [2007] ACTSC 20 (26 February 2007)

Last Updated: 7 May 2008

R v CHRISTOPH HERMAN KARSTEN

[2007] ACTSC 20 (26 February 2007)

EXTRADITION - consent to surrender - whether jurisdiction to review consent - lack of jurisdiction.

(Ex Tempore Judgment)

Extradition Act (1988) (Cth), s 18, s 19

Constitution, s 75

Papazoglou v The Republic of the Philippines [1997] 254 FCA (17 April 1997)

United Mexican States v Cabal (2001) 209 CLR 165

Harris v Attorney-General (1994) 52 FCR 386

Director of Public Prosecutions (Cth) v Kainhofar (1995) 185 CLR 528

No. SC of 315 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 26 February 2007

IN THE SUPREME COURT OF THE )

) No. SC of 315 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: CHRISTOPH HERMAN KARSTEN

Defendant

ORDER

Judge: Connolly J

Date: 26 February 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. This application seeks to review a decision of a magistrate accepting the applicant's consent to an extradition. The question before me is whether or not this Court has the jurisdiction to entertain an application to allow Mr Karsten to withdraw his consent to an extradition.

2. The matter is before this Court pursuant to Mr Karsten's notice of appeal against a decision of Magistrate Madden on 20 December 2006, in which the learned Magistrate committed Mr Karsten to the Belconnen Remand Centre to await surrender to the Federal Republic of Germany in relation to certain criminal proceedings.

3. The matter was before me from the commonly-accepted factual basis that there had been proceedings brought to the notice of the Australian authorities from the Federal Republic of Germany requesting Mr Karsten's extradition in relation to a charge of attempted incitement to commit murder.

4. The matter was put before a magistrate of this Territory in proper form and, on 6 December 2006, a magistrate issued a provisional warrant for the arrest of Mr Karsten. It then came back before the Magistrates Court on 11 December 2006 and he was remanded in custody pending the application to take the matter to the next step.

5. The Extradition Act (1988) of the Commonwealth provides two routes by which the question of whether surrender will occur may proceed. By s 18, a person who has been remanded, may consent to their surrender. The matter is then laid before the Commonwealth Attorney-General for determination as to whether surrender will, in fact, occur. Or, pursuant to s 19, there may be a contested hearing in relation to whether there is eligibility to surrender.

6. The common factual ground here is that Mr Karsten indicated his consent to being extradited and, as I understand it, there is no dispute that the learned Magistrate went through the necessary steps under s 18(2) which requires a magistrate, unless they have reason to believe the consent was not voluntary, to advise the person of the effect and consequences of their determination to surrender. There is no specific provision in the Act relating to a variation of that determination.

7. The Commonwealth, through the Commonwealth Director of Public Prosecutions, makes the submission, and made the submission at the outset, that there is no general jurisdiction in this Court to entertain firstly an appeal from a s 18 decision, and specifically no jurisdiction to permit a variation in the form of consent that was on the papers at least given at that hearing.

8. There is, under the Extradition Act (1988), specific jurisdiction vested in State and Territory Supreme Courts and the Federal Court to review determinations of a magistrate when there has been a contested hearing to determine eligibility for surrender pursuant to s 19. There is no statutory jurisdiction on a State or Territory court to intervene in an exercise of power under s 18 of the Act.

9. Mr Romano makes the submission that is prima facie an attractive one, that there is a general supervisory jurisdiction in this court over the actions of magistrates. However, there is binding authority on me by way of a decision of the Full Bench of the Federal Court in Papazoglou v The Republic of the Philippines [1997] 254 FCA (17 April 1997) to the contrary.

10. This decision reminds me, and establishes authoritatively, that when exercising jurisdiction under s 18 or s 19 of the Extradition Act (1988), a magistrate is not acting as a magistrate of a State or Territory but as a persona designata of the Commonwealth exercising a delegated Commonwealth administrative power.

11. It flows from that, that any review vested in a State or Territory Supreme Court, the exercise of a State or Territory magistrate's jurisdiction must be a statutory form of review, and the Act limits that statutory review to the contested determination as to eligibility for surrender pursuant to s 19, and vests no jurisdiction on a State or Territory Supreme Court to review the question of whether consent was properly obtained.

12. The Federal Court, at some length in the decision of the Court, being Wilcox, Tamberlin and Sackville JJ, formed the view that there was no inherent Supreme Court jurisdiction in order to go beyond that statutory form of review.

13. It seems to me, with respect, that that conclusion is not only binding on me but is clearly correct. I am also mindful of recent approaches in the High Court in relation to extradition matters where the High Court has reminded us that extradition is an administrative process pursuant to treaty. The treaty is in effect a two-way street, and that Australia expects when it places an extradition request to other treaty partners, the matter is to proceed expeditiously. In United Mexican States v Cabal (2001) 209 CLR 165, the High Court (Gleeson CJ, McHugh and Gummow JJ) observed that the Extradition Act gives effect to Australia's treaty obligations, and:

Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. I would be concerned if the consequence of the lack of jurisdiction in this Court to review the magistrate's decision was that there was, in effect, an unreviewable exercise of executive discretion going to the liberty of the subject. I am satisfied that that is not the case.

14. A consent to surrender pursuant to s 18, which is what has occurred here, has the effect that a person will, in general, be remanded in custody and that the Attorney will be advised by the magistrate acting as persona designata, that the consent to surrender has occurred.

15. There is then, under the Act, s 22 and following, a very complex structure setting out the steps that the Attorney must take before a person would, in fact, be surrendered to the requested country. This process was set out by the Full Federal Court in Harris v Attorney-General (1994) 52 FCR 386 at 389 in a passage endorsed by Gummow J in Director of Public Prosecutions (Cth) v Kainhofar (1995) 185 CLR 528 at 547. It does seem to me, and Ms Summerell made the submission, that the final determination by the Attorney is, itself, clearly subject to review by the Federal Court.

16. It would, of course, in any event be reviewable even if there was no express statutory provision, as the Attorney's decision is the type of determination, by an officer of the Commonwealth, that is subject to the constitutionally guaranteed High Court right of review pursuant to s 75(v) of the Constitution.

17. There are specific matters that must be looked at going to forms of legal process available in the receiving state, and I am mindful of the fact that Mr Karsten has expressed, in the material that he filed himself in this Court, concerns about the nature of the process that he will meet in the Federal Republic of Germany. All of those are matters that the Attorney must review.

18. There is a general discretion in the Attorney in relation to the extradition process, and it seems to me that the question of the voluntariness of consent would be a question that the Attorney would need to satisfy himself of. Clearly, if a situation was one where a person had no English skills at all, or had been tricked in some way into agreeing to consent, that would be a matter that would necessarily attract attention and the Attorney and would need to make a determination to that effect.

19. I am satisfied that the statute as it stands and as it has been interpreted, correctly in my view, by the Full Bench of the Federal Court, means that the application that Mr Romano makes must fail, that there is no discretion in this Court to entertain an application to change the consent, and that the application must therefore be dismissed.

20. In doing so I am, however, mindful of the fact that that does not mean that Mr Karsten will be placed on a plane and sent to the Federal Republic of Germany. The Commonwealth Attorney must exercise the powers that the Act vest in him and his determination, if it be at the end of the day adverse to Mr Karsten, is itself subject to appropriate review by the Federal Court. The application today is therefore dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 27 March 2007

Counsel for the plaintiff: Ms P Summerell

Solicitor for the plaintiff: Director of Public Prosecutions (Cth)

Counsel for the defendant: Mr D Romano

Solicitor for the defendant: Romano Satsia Kordis

Date of hearing: 26 February 2007

Date of judgment: 26 February 2007