How Does Interstate Extradition Work?

A Victorian man has been extradited to appear at court in Sydney over the alleged murder of 42-year-old John Simpson, whose body was found in a bush grave in regional NSW.

Simpson was reported missing in April and was last seen on Great North Road in Laguna, which is 40km southwest of Cessnock.

It was reported that he may have been on the side of the road after his car had broken down.

Following inquires by specialist police and officers attached to Hunter Valley Police District, officers searched a nearby property where they located the 42-year-old man’s body on 16 May.

On 18 July, strike force detectives conducted a further search of the property and discovered three firearms, which were seized to undergo further forensic examination.

The detectives then applied for, and were subsequently granted, an arrest warrant for a 34-year-old man in Victoria.

This man was arrested in Carlton, Melbourne due to assistance from the Victoria Police Fugitive Squad. Homicide squad detectives applied for and were granted his extradition to NSW in Melbourne’s Magistrate Court.

He was escorted by detectives on a flight to Sydney.

Once he arrived, he was taken to Mascot Police Station and was charged with murder and possessing an unauthorised firearm.

Initial inquiries suggest that Simpson died due to a fatal gunshot wound. Police will ultimately allege that the 34-year-old shot him before burying him on the Laguna property.


How Does Interstate Extradition Work?

In Australia, the extradition of a person to another state or territory within the country is governed by the Service and Execution of Process Act 1992 (Cth).

The Act provides that a person named in a warrant issued in one state may be apprehended in another state.

Generally, where a copy of the warrant is produced to a Magistrate, the court must either order:

  • that the person be remanded on bail on the condition that they appear in the State where the warrant was issued at such a time and place that is specified, or
  • that the person be taken into custody to the state which issued the warrant.

This essentially means that the person will be able to stay in the state where they were, subject to bail conditions to attend court in the requesting state (at a minimum), or they will be taken to the requesting state to be held in custody on remand.

The bail law of the state or territory granting bail applies, with the decision of the court ultimately subject to review by the Supreme Court.

Notably, the person must be released if the court is satisfied that the warrant is invalid, which may occur due to it being defective. This means that the warrant should have all relevant details on it and be signed and executed by an authorised officer, among other preconditions.

Currently, this is the only circumstance in which ‘relief’ may be obtained from extradition.

However, there are different court procedures depending upon whether the person sought to be extradited is classified as a ‘person under restraint’.

This is due to how the local state or territory jurisdiction has the priority to prosecute offences committed in that state or territory, prior to any considerations of extradition to another state or territory.

A person who is in gaol may not be apprehended on an extradition warrant, as per section 82(2).

This will include a person in custody on remand or serving a sentence.

In this circumstance, the state seeking extradition is required to wait for the person to be sentenced and/or serve their sentence before they can bring charges and seek extradition.

As per section 3, a person will be considered ‘under restraint’ in situations such as where they are:

  • on bail,
  • on conditional release from gaol (i.e., parole),
  • subject to supervision under a probation order,
  • serving a period of home detention,
  • serving a term of imprisonment under a periodic detention order,
  • undertaking a community service order.

Where a person is found to be ‘under restraint’, the Magistrate may adjourn the proceedings (for up to 7 days) and remand the person on bail or in custody, during the adjournment.

During this period, the relevant state or territory Department of Correctional Services will be notified of the extradition warrant and the supervisor of the person under restraint may make submissions to the Magistrate. It will then be up to the Magistrate to determine the extradition warrant.

About Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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