Zentai v. Honourable Brendan O'Connor (No 3) (2010) FCA 691 (2 July 2010).

• Author: Tully, Stephen
• Position: Fair trial for an alleged war crime

Introduction

Can an Australian be extradited for a fair trial for an alleged war crime on the basis of statements from deceased witnesses, confessions from alleged accomplices credibly extracted under torture, and the absence of contemporary forensic evidence? That was the "compelling aspect" recently considered by the Federal Court of Australia in Zentai v Honourable Brendan O'Connor (No 3) ('Zentai'). (1) The judgment answered the question by reference to several national and international legal matters and in so doing provided guidance on preparing Ministerial advice.

1. Factual and Procedural History

   In 2005, the Budapest Metropolitan Court issued an arrest warrant alleging that Charles Zentai (Zentai), a Hungarian soldier during 1944, killed a Jewish male with two accomplices. Hungary requested extradition pursuant to the Treaty on extradition between Australia and the Republic of Hungary (the Treaty). (2) The Commonwealth Attorney-General issued a notice under s 16 of The Extradition Act 1988 (Cth) (the Act) stating that a request was received. (3) A provisional arrest warrant was issued. (4) Zentai unsuccessfully challenged the validity of the functions conferred on magistrates under the Act. (5) His application to the High Court of Australia was granted and the appeal dismissed. (6) In 2008, a magistrate acting as persona designate in administrative proceedings determined under s 19 that Zentai was eligible for extradition. (7) That decision was unsuccessfully challenged. (8) In 2009, the Commonwealth Minister for Home Affairs (the Minister) determined under s 22-without giving reasons--that Zentai, having been found by a magistrate to be an 'eligible person', would be surrendered for extradition. Zentai obtained orders staying the s 19 committal decision and the arrest warrant decision. (9) He obtained production of a document entitled 'Consideration of the Pre-conditions to Surrender and Grounds for Refusal of Surrender under the Extradition Act 1988' (Attachment C). (10)

   Zentai sought judicial review of the ss 16, 19 and 22 decisions. These are not subject to merits review but can be challenged for jurisdictional error. (11) A court needs to consider whether the required state of satisfaction could have been formed by a reasonable person with a correct understanding of the law. (12)

2. Grounds of Review and their Resolution

   Zentai contended that the s 16 notice was void because he was not 'accused' of an offence under Hungarian law. Hungary had sought Zentai's extradition only for the purposes of preliminary investigations. Consequently, the magistrate and the Minister erred in finding that he was an 'eligible person'. The Commonwealth argued that extradition would enable criminal procedures. The Minister could not but be satisfied that Zentai could be surrendered because the magistrate had already made an order to that effect.

   The Court noted that the legislative scheme envisages administrative powers being exercised sequentially, with no decision-maker authorised to review the exercise of earlier powers. (13) The Minister had been incorrectly advised that Zentai was an 'accused'. (14) When the s 16 notice was issued (2005), it was unknown that Zentai was only wanted for questioning. This information only emerged through Attachment C in 2009. While the magistrate could not go behind the s 16 notice, the Minister had not been estopped in 2009 from making a fresh eligibility assessment when new information exposed the earlier determinations as having a false premise. The Minister's s 22 determination was thus unauthorised because Zentai was not in fact an 'eligible person'. (15)

   The Court also agreed with Zentai's argument that a war crime was not a 'qualifying extradition offence'; that is, an offence under Hungarian law at the time of its alleged commission. (16) The Minister had been incorrectly advised on a 'central issue' that the alleged 'conduct' would have constituted murder because in the 'plainest of language' the Treaty dealt with offences. nor was being 'suspected' of committing murder a de facto or de jure surrogate for the offence for which extradition was sought. (17)

   Zentai contended that the Minister failed to consider...