Okendeji v Government of the Commonwealth of Australia & Anor

In extradition proceedings, a person resisting extradition on Article 6 grounds must establish a clear risk of a flagrant denial of a fair trial in the requesting state. The court must have sufficient evidence of the requesting state's law and its likely interpretation and application. It cannot assume that a statutory legal burden will be read down, or that the trial court will correct the problem, without evidence of the relevant law and procedure. The requesting state bears the burden of justifying any interference with the presumption of innocence and showing that it is no greater than necessary. Where the evidence is inadequate, the proper course may be to remit the matter for an adjourned hearing and expert evidence rather than decide the Article 6 issue conclusively.

Australia sought the extradition of a Nigerian national in respect of alleged cocaine importation and failure to surrender while on bail. Australia was a designated Category 2 territory under the Extradition Act 2003, and the District Judge was required to decide compatibility with Convention rights under section 87.

The District Judge sent the case to the Secretary of State but rejected the claimant’s argument that Australian legislation imposed an unlawful reverse legal burden of proof. The claimant appealed under section 103. The central issue was whether the alleged burdens under section 233B of the Customs Act 1901 and section 51(1) of the Bail Act 1978 (NSW), without further evidence of Australian law, created a risk of a flagrant denial of Article 6 rights.

1. Appeal and rehearing. The court directed a rehearing before the District Judge under section 104 of the Extradition Act 2003. The District Judge had not been entitled simply to reject the claimant’s submission for want of proof. Australia had notice of the issue and should have produced expert evidence of the proper construction and application of the relevant Australian provisions.
2. Article 6 threshold. It was accepted that extradition may be resisted only where there is a risk of a flagrant denial of a fair trial in the requesting state. The presumption of innocence is an element of a fair criminal trial. A statutory interference with it requires justification and must be no greater than necessary.
3. Foreign law. The court could not assume that the Australian courts would interpret words such as “prove” as imposing only an evidential burden, as the House of Lords had done domestically in R v Lambert [2002] 2 AC 545. Nor could it assume that the New South Wales court had the ability or inclination to remedy any incompatibility. The proper meaning and operation of sections 233B(1)(c), 233B(1A) and 51(1) required expert evidence.
4. Proportionality and designation. The District Judge had no evidential basis for finding that any interference was proportionate. The burden lay on Australia to show that the legislative means were no greater than necessary. Designation under section 84 did not justify an assumption that the claimant would receive a fair trial.
5. Entrapment. The entrapment argument was rejected. The evidence sufficiently rebutted it. Lord Justice Maurice Kay agreed with the rehearing order and added that expert evidence should also address the meaning of “without reasonable excuse”.

1. High Court (Administrative Court) — The claimant appealed under section 103 of the Extradition Act 2003 against the extradition decision. The court directed the District Judge to rehear the Article 6 issues after obtaining expert evidence.