Extradition
3. Interstate Extradition
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 27 Jul 2015
- A person may be apprehended in another state pursuant to a valid warrant by a police officer, the Sheriff or a member of the Australian Federal Police.
- The warrant does not need to be produced at the time of apprehension.
- The warrant or a copy of the warrant must be produced when the person is re-apprehended.
- Provided a valid warrant exists that person will be brought before the court in the state in which they are apprehended.
- For a warrant to be valid it only needs to show that a prosecution has begun in the other state or that the person is currently serving a sentence or is the subject of a court order restricting movement.
- There is no requirement on the prosecution to show that a crime has been committed just that the prosecution has commenced the process.
- There is also no requirement of proof that the person is guilty of the crime alleged.
- The person is to be taken before a magistrate of the state in which the person was apprehended as soon as possible after being apprehended.
- At the court hearing the magistrate should be provided with a copy of the warrant relied on by the prosecution. If a copy of the warrant is not produced the magistrate may order that the person be released or adjourn the proceeding for a reasonable time until the warrant is produced.
- The magistrate will then determine whether the person is defined as “a person under restraint” pursuant to section 84 of the Service and Execution of Process Act 1992 (Cth).
- A person will be considered under restraint if that person is:
- on bail;
- on conditional release from prison;
- subject to supervision under a probation order;
- serving a period of home detention;
- undertaking a community service or community based order; or
- has had their movements restricted pursuant to a court order.
- if the magistrate determines the person to be ‘a person under restraint’ then the validity of the warrant itself will be determined.
- The only way in which a person may have the warrant dismissed is if the magistrate determines that the warrant is invalid.
- A warrant may be deemed invalid if:
- there are faults within the actual warrant (such as the wrong name); or
- there are undisputed facts that the person should be found not guilty. This is rare as the court is not in a position to determine the guilt or innocence of that person at extradition hearings.
- In either case application should be made for discharge of the warrant.
- Provided the person is deemed “under restraint” and the warrant is deemed valid most extradition proceedings will result in the person being returned to the other state for the hearing of the charge.
- Bail may be sought at an extradition proceeding. The magistrate will determine whether bail should or should not be granted.
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