Within Australia

When a person is charged with certain offences in an Australian State other than that in which they live, the prosecuting body may seek to extradite that person back to the State in which the offence is alleged to have occurred. This is a process whereby a charge is laid in the State in which the alleged offence occurred, and an extradition warrant is issued seeking to detain the person in that other State, take them into custody and transport them involuntarily back to the court in which the charged originated. This process can be resisted, but there is some complexity to it.

Firstly, it is important to determine if the extradition warrant is valid. That involves careful review of the warrant against the law giving rise to it in the State in which it was issued.  There is much more to it than simply ensuring that the defendant is actually the person named in the warrant. It should be examined just as carefully as any other warrant to ensure its form and content conforms to the law permitting it.

Secondly, given that the primary reason the issuing court authorised the warrant will be ensuring the person named in the warrant turns up for court and doesn’t simply flee, demonstrating that the risk of fleeing from justice is low enough to justify an admission to bail.

Both of these issues are illustrated in a recent case called The Police v (name redacted – R) in which I successfully opposed extradition for quite a serious set of sexual offences alleged to have been committed by the client overseas, and in New South Wales. The issue of validity found its origin in the fact the warrant was not signed by the issuing officer, it merely had his name printed on it. This was a clear breach of the New South Wales law that sets forth the criteria for a valid warrant.

The second issue of flight arose because of the serious nature of the alleged offending, and the fact that, in asking for bail, he was intending to reside outside the borders of New South Wales – which would make is much harder for that justice system to reach him for any reason. Both matters were resolved by the Magistrate in our client’s favour and the warrant was dismissed and her was admitted to bail.

Reviews

Lawfully resisting an extradition warrant doesn’t just end with a careful review of the warrant itself and proposing a voluntary attendance at court instead of appearing there in the custody of the warrant, the decision to extradite can of itself be reviewed in a Supreme Court, and the validity of the warrant can be challenged in the Supreme Court of the State that issued it. 

These are a few interesting matters to consider when confronted with an extradition application. In the event that you find yourself involved in one, I am only too willing to assist you in navigating through it.