Interstate extradition procedures are governed by the Service and Execution of Process Act 1992 (Cth) pt 5 [see also Police Powers and Forensic Procedures chapter]. Under the Act, a person named in an extradition warrant issued in any State may be arrested in accordance to that warrant in another State [see Service and Execution of Process Act 1992 (Cth) s 82(1)]. Upon apprehension, that person must be brought before a Magistrate of the State in which they were apprehended along with the warrant or a copy of the warrant [see ss 83(1) and 83(2)].
Different court procedures apply depending on whether or not the person subject to the application is defined as a “person under restraint”.
A person who is in prison may not be apprehended on an extradition warrant [see Service and Execution of Process Act 1992 (Cth) s 82(2)]. A person who is in prison is not considered a “person under restraint” in accordance with the Act [see s 3 for definition]. Thus a person in custody on remand or servign a sentence may not be extradited to another State.
The Magistrate, at the first hearing of the application for interstate extradition, must determine whether the person falls under the definition of a “person under restraint” [see Service and Execution of Process Act 1992 (Cth) s 84(1), 84(1A), 84(2) and 84(3)]. Persons considered to be under restraint are those who are:
- on bail;
- on conditional release from prison before the expiration of a term of imprisonment (including being on parole, on conditional licence, work-release and home detention);
- subject to supervision under a probation order (such as a supervised bond);
- serving a period of home detention or a term of imprisonment under a periodic detention order;
- undertaking a community service, community based, attendance, or work and development order; or
- have their movements restricted in accordance with a law or a court order which is inconsistent with compliance with a subpoena [see Service and Execution of Process Act 1992 (Cth) s 3 for extended definition].
Where a person is deemed to be a person under restraint, the procedure prescribed in section 84 of the Act applies. The Magistrate may adjourn the proceedings (for up to 7 days) and remand the person on bail or in custody for the period of the adjournment [see s 84(4); s 84(5) for applications for adjournment; s 84(6) for adjournment procedure]. During the adjournment period, the Department of Correctional Services is notified of the execution of the warrant and upon commencement of proceedings the supervisor of the person under restraint may make submissions to the Magistrate [see ss 84(4)(a)(iii) and 84((4)(b); s 84(10) for definition of supervisor]. Likewise, any relevant state or federal police officer must be notified of the execution of the warrant and be afforded an opportunity to make submissions to the Court.
Where the person is not “under restraint”, section 83 of the Service and Execution of Process Act 1992 (Cth) applies.They are brought before a Magistrate in custody and the warrant or a copy is produced to the Magistrate. If it is not produced the Magistrate may either:
If the warrant is still not produced when proceedings resume, the Magistrate may order the person’s release forthwith or allow a further adjournment if there is reasonable cause to do so [see Service and Execution of Process Act 1992 (Cth) s 83(4)]. The total time of the two adjournments together must not exceed 5 days [see s 83(5)]. If the warrant or a copy of the warrant is not produced following a second adjournment the Magistrate must order that the person be released [see s 83(7)].
|The duty solicitor may apply for a defendant's release on bail for the duration of any adjournment. Such an application for bail is determined under the normal criteria of section 10 of the Bail Act 1985 [see Service and Execution of Process Act 1992 (Cth) s 88]. Bail is invariably opposed on the grounds of the seriousness of the offence and the incentive to abscond. However, where the defendant has personal matters to settle before extradition and can provide guarantor(s), residence, frequent reporting to police and/or cash surety, the Court may be persuaded to grant bail.|
During the process of the extradition hearing the Magistrate is not bound by rules of evidence and subsequent hearings may be conducted by other Magistrates [see Service and Execution of Process Act 1992 (Cth) s 83(14)].
The Magistrate must order the person’s release should the warrant be determined invalid [see Service and Execution of Process Act 1992 s 83(10)].
|ALWAYS CHECK THE WARRANT|
|The duty solicitor should always ask to see the warrant to check all relevant details on it. Check that the name of the accused is accurate; that the warrant is appropriately signed by an authorised officer and so forth.|
A person may remain on bail with a condition he or she return to the other state as soon as reasonably practicable and appear at such time and place in that jurisdiction [see Service and Execution of Process Act 1992 (Cth) ss 83(8)(a), 84(7), 85 and 85A]. Should the Magistrate determine the person must remain in custody, the subsequent court order must include a condition that the person be taken to a specified place in the place of the issue of the warrant [see ss 84(8) and 83(8)(b)]. The Magistrate may suspend an order for a remand into custody pending transport to the other state for a specified period [see ss 83(11) and 83(12)].
An application can be made to the Supreme Court to review an order made in accordance with section 83 of the Act within 7 days of the making of the extradition order [see Service and Execution of Process Act 1992 (Cth) ss 86(1) and 86(2)]. The Supreme Court may vary, confirm or revoke the extradition order [see s 86(8)].