Hermanowski v United States of America [2006] FCAFC 8

Hermanowski v United States of America [2006] FCAFC 8

The standard required by Article XI(3)(c) of the Treaty (as implemented by the Act and Regulations) is satisfied where the requesting state provides a description of facts (via affidavit, statement or declaration) that would, if correct, provide reasonable grounds for believing the offences were committed and the person sought committed them; it does not require all evidence or direct testimony from every key witness, nor do the factual circumstances need to exclude all inferences consistent with innocence. However, a finding of reasonable grounds is not justified where a critical element of the offence (such as the 'proceeds of mail fraud' for money laundering) is not supported by facts...

Parties
Appellant: Charles Hermanowski; First Respondent: United States of America; Second Respondent: Her Honour Jillian Orchiston, Magistrate
Jurisdiction
Australia
Judgment Date
17 February 2006
Procedural Posture
Extradition Appeal / Appeal From Supreme Court of New South Wales to Federal Court of Australia, Full Court
Outcome
Appeal allowed in part; otherwise dismissed. Orders for eligibility for surrender set aside in respect of certain counts; otherwise confirmed. No order as to costs of the appeal.
Legal Topics
Treaty Interpretation, Standard of Proof for Extradition, Reasonable Grounds for Believing, Foreign Law Proof, Hearsay in Extradition Proceedings
Extradition Criminal Law Evidence Treaty Interpretation Standard of Proof for Extradition Reasonable Grounds for Believing Foreign Law Proof Hearsay in Extradition Proceedings

Case Brief

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Parties

Charles Hermanowski

Appellant

United States of America

First Respondent

Her Honour Jillian Orchiston, Magistrate

Second Respondent

Procedural Posture

Extradition Appeal / Appeal From Supreme Court of New South Wales to Federal Court of Australia, Full Court

Legal Issues

  1. 1 Whether the description of facts supplied by the United States satisfied Article XI(3)(c) of the Treaty on Extradition between Australia and the United States of America as incorporated into Australian law via the Extradition Act 1988 (Cth)
  2. 2 Whether there were reasonable grounds for believing that the appellant committed certain offences as required for eligibility for surrender under the Act and the Treaty
  3. 3 The sufficiency and character of evidence (including hearsay) required for extradition eligibility

Ratio Decidendi

The standard required by Article XI(3)(c) of the Treaty (as implemented by the Act and Regulations) is satisfied where the requesting state provides a description of facts (via affidavit, statement or declaration) that would, if correct, provide reasonable grounds for believing the offences were committed and the person sought committed them; it does not require all evidence or direct testimony from every key witness, nor do the factual circumstances need to exclude all inferences consistent with innocence. However, a finding of reasonable grounds is not justified where a critical element of the offence (such as the 'proceeds of mail fraud' for money laundering) is not supported by facts...

Court Disposition

Appeal allowed in part; otherwise dismissed. Orders for eligibility for surrender set aside in respect of certain counts; otherwise confirmed. No order as to costs of the appeal.

Orders

  • The appeal be allowed in part.
  • The order of the Supreme Court made on 13 April 2005 confirming the Magistrate's order of 7 May 2004 is set aside insofar as it determined the appellant eligible for surrender for Counts 40–51 and 64, and Counts 52–63 and 65 of the Second Superseding Indictment.