Sohn v Republic of Korea [2001] FCA 166

FEDERAL COURT OF AUSTRALIA

Sohn v Republic of Korea [2001] FCA 166

HWAN GI SOHN v THE REPUBLIC OF KOREA N 819 of 2000 HILL J 23 FEBRUARY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 819 OF 2000

BETWEEN: HWAN GI SOHN

APPLICANT

AND: THE REPUBLIC OF KOREA

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 23 FEBRUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

the application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 819 OF 2000

BETWEEN: HWAN GI SOHN

APPLICANT

AND: THE REPUBLIC OF KOREA

RESPONDENT

JUDGE: HILL J

DATE: 23 FEBRUARY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Ms Hwan Gi Sohn, applies to the Court for review of a decision of a magistrate, Mr Allan Moore sitting in Central Local Court, New South Wales, determining that the applicant was a person eligible for surrender to the Republic of Korea, the effective respondent of the proceedings, represented before the magistrate by the Commonwealth Director of Public Prosecutions in relation to four extradition offences, being in essence four matters involving the defrauding of a Ms Bok Sun Cho. 2 Pursuant to s 21 of the Extradition Act 1988 (Cth) ("the Act") the applicant was entitled to apply to this Court to review the magistrate's order. The nature of such a review is generally accepted to be a re-hearing although limited to the material that was before the magistrate. That the Court on the review may have regard only to the material before the magistrate and nothing else appears from s 21(6)(d) of the Act. It follows from that paragraph that, for example, it would not be competent for an applicant on a review to seek to call, for example, further evidence. Likewise, if for some reason the material before the magistrate was insufficient the Director of Public Prosecutions, acting for the extradition country, could likewise call no evidence to remedy some defect. 3 Only one ground of review is pressed. The original statement of grounds was in rather general terms, but counsel for Ms Sohn sought and was granted leave to particularise orally the substance of the ground. As so particularised, the ground was intended to convey that the magistrate erred by relying upon a translation being tendered which had not been proved as required by law. 4 Before considering the submission, it is necessary to say something about the requirements of the Act and the way those requirements were sought to be met in the present case. 5 Section 19(2) of the Act sets out various matters that have to be complied with at a hearing. The first of them is that what is called in the Act "supporting documents" in relation to the offence have to be produced to the magistrate. The expression "supporting documents" is defined in s 19(3) of the Act and relevant to the present case is subsection (b) of s 19(3) which, in combination with s 19(2), requires there to be produced: " ... such duly authenticated documents as provide evidence of: (i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out ..." 6 I should interpolate here that the material before the magistrate, if properly admitted, showed that the applicant had been convicted on all four counts and sentenced to a jail sentence. She apparently managed to escape from custody and come to Australia. It is clear that the sentence imposed upon her has not been carried out. 7 Also required to be furnished are the statements referred to in s 19(3)(c), both of which are required to be "duly authenticated". In any particular case, there may be other documents or material that might require tendering. This would be particularly so if an issue emerged before the magistrate that there was an extradition objection. That is not, however, the present case. 8 There was tendered before the magistrate a notice under s 16(1) of the Act and a bundle of documents. That bundle of documents, which was sewn together, contained a certification on the front page purporting to be from the Minister of Justice of the Republic of Korea that the various documents annexed to it were documents which themselves were called certified documents and which related to the applicant's extradition. On the face of that bundle of documents appears a seal which reads in English, "Ministry of Justice of the Republic of Korea". Counsel for Ms Sohn submitted that a certification on the front page was insufficient to authenticate the bundle of documents where a translation is included in the bundle. It is submitted that that translation itself has to be either authenticated as required by s 19(7) of the Act or alternatively proved by calling a competent translator. Subsection 19(7) provides: "A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: ... of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country ..." 9 It is clear by force of s 19(8) in combination with s 19(6) that if a document is duly authenticated as described in s 19(7) it will be admissible but that, if it is not, it is still open to prove the relevant document in some other way in accordance with ordinary legal principles. 10 It is axiomatic that documents emanating from a country outside Australia which comply with, or which fall within the description of supporting documents in, s 19(3) would be likely to be in a foreign language. Where documents are in a foreign language, there is an obvious difficulty if they are not translated for the Court itself should not, any more than the magistrate could, rely upon his or its own knowledge of another language to accept a tender of a document written in that other language. As pointed out in Zoeller v Federal Republic of Germany (1989) 23 FCR 282, natural justice is not to be denied to a person who appears before a magistrate or, for that matter, this Court. A magistrate could not act on his or her own translation leaving the parties in ignorance of the fact that this is what he or she has done. A document, albeit duly authenticated under s 19(7) and admissible in evidence, "can only be acted upon if it is understood" (Zoeller at 290). 11 I think that in this case it is unnecessary to come to a conclusion on whether the documents are duly authenticated in accordance with s 19(7). The only thing that really is lacking is something that identifies what appears to be a relevant supporting document or other document. On the whole I am inclined to the view that the bundle of documents suffices for present purposes, albeit that there is no specific identification which tells the magistrate that what appears in English is in fact a particular translation of a particular document in the Korean language. 12 The opposite view, of course, is that it can be inferred that the English language version is indeed a translation of the Korean material. But, even if it be the case that the translation does not identify the particular document in the Korean language, which is either the supporting document or otherwise, the applicant's submission has no merit for the reason pointed out by the Full Court of this Court in Zoeller. 13 In Zoeller, there was tendered and accepted in evidence, subject to an immaterial objection for present purposes, a document purporting to be a translation of a warrant. As the Court comprising Lockhart, Gummow and Hill JJ pointed out, had the matter of the admissibility of the translation, uncertified as it was, been raised before the magistrate, the Director of Public Prosecutions could probably have sought and obtained an adjournment to enable him or her to call a competent translator to prove the translation of the warrant. The Court said at page 292: "The proceedings before Einfeld J were for a 'review' of the order of the magistrate, and the appeal before us is against his Honour's order dismissing that application for 'review'; both at first instance and on appeal the Court shall have regard only to the material that was before the magistrate (s 21(6)(d)). The rules as to the circumstances in which fresh grounds may be taken upon an appeal within the court hierarchy can have no immediate application to the point the appellant seeks to make: cf Wiest v Director of Public Prosecutions (1988) 86 ALR 464 at 502." 14 It is unnecessary for the purpose of this case to determine comprehensively what is contemplated by the "review" by reference to which s 21 of the Act defines the jurisdiction of this Court. It is sufficient to say that it would be going beyond "review" for the Court to entertain a complaint in respect of the receipt by the magistrate into evidence of the translation here in question, given that before the magistrate the applicant had not objected that the document was a translation. How can the applicant now be heard to request that this Court review what happened in this regard before the magistrate when the applicant herself made no objection below when, if there was anything in the objection, it might have been cured while the proceedings were still before the magistrate. 15 The documents in the bundle were accepted into evidence by the magistrate without any objection on the part of the applicant who indeed was legally represented. There was no submission made to the magistrate suggesting that he should not accept as a relevant translation the material. The fallacy in the submission made on behalf of the applicant is that there are only two ways in which a translation of documents required to be produced to the magistrate can be admitted in evidence. The two ways suggested are either by virtue of an authentication pursuant to s 19(7) or proof by an oral witness of a translation in a case where no translation accompanies the extradition application. In truth, there is another way a translation can be admitted in evidence; the Director of Public Prosecutions could tender by consent a translation if the parties agreed that the translation was a correct one. In that situation, there is no need either to authenticate that translation in accordance with s 19(7) or produce expert evidence under oath by a competent translator of the relevant translation. 16 When a respondent to an extradition proceeding agrees that material tendered is indeed a translation of supporting or other documents required to be produced to the magistrate, that is the end of the matter. It does not affect the outcome whether the translation has been certified or authenticated under s 19(7) or proved in the ordinary common law way. It follows that the appeal against the magistrate's decision must be dismissed. The applicant has not made out a case that the magistrate erred in taking account of the documents, the translation of which was admitted by consent. 17 There is additional support for this proposition in the judgment of French J in Peniche Cabal v United Mexican States (No 3) [2000] FCA 1204. Although an appeal on this decision has been heard by a Full Court of this Court, the matter dealing with foreign language and proof of translation was ultimately not sought to be argued on the appeal. This being the only matter raised on the applicant's behalf, I confirm the order of the magistrate. 18 The Republic of Korea does not seek costs against the applicant and accordingly I would make no order as to costs. I have to thank counsel for their assistance and particularly Ms Backman for having come into it rather late but at least trying to find some ground to agitate on her client's behalf. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.