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Extradition Act [Cap 23]

LAWS OF FIJI

CHAPTER 23

EXTRADITION

Act No. 9 of 1972

AN ACT TO PROVIDE FOR THE EXTRADITION OF FUGITIVE OFFENDERS

[27th May, 1977.]

Short title

1. This Act may be cited as the Extradition Act.

PART I-PRELIMINARY

Interpretation

2. In this Act, unless the context otherwise requires-

"designated Commonwealth country" means a Commonwealth country designated under section 3 and includes the dependencies of any such country;

"extradition offence" has the meaning assigned to such expression by section 5;

"extradition treaty" means a treaty or agreement made by Fiji with a foreign State relating to extradition of fugitive offenders and includes a treaty or agreement relating to the extradition of fugitive offenders made before the 10th October, 1970, which extends to, and is binding on, Fiji;

"foreign State" means any State outside Fiji other than a Commonwealth country and includes every constituent part of such State and any dependency thereof;

"fugitive offender" means a person who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign State or a Commonwealth country and is, or is suspected to be, in Fiji or in a foreign State or a Commonwealth country;

"magistrate" means a resident magistrate;

"treaty State" means a foreign State with which an extradition treaty is in force.

PART II-EXTRADITION OF FUGITIVE OFFENDERS

Designated Commonwealth countries

3.-(1) The Minister may, by order published in the Gazette, designate a Commonwealth country as a designated Commonwealth country for the purposes of this Act.

(2) The Minister may by order, published in the Gazette, direct that this Act shall have effect for the return of persons to, or in relation to persons returned from, any designated Commonwealth country subject to such exceptions, adaptations or modifications as may be specified in the order.

Person liable to extradition

4. Subject to the provisions of this Act, a person found in Fiji who is accused or convicted of an extradition offence in any treaty State or designated Commonwealth country or who is alleged to be unlawfully at large after conviction of such an offence in any such State or country, may be arrested and returned to that State or country as provided by this Act.

Extradition offences

5.-(1) For the purposes of this Act, an offence of which a person is accused or has been convicted in a treaty State or in a designated Commonwealth country is an extradition offence if-

(a) in the case of an offence against the law of a treaty State, it is an offence which is provided for by the extradition treaty;

(b) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any description set out in the Schedule and is punishable under that law with imprisonment for a term of twelve months or any greater punishment; and

(c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of Fiji if it took place within Fiji or, in the case of an extra-territorial offence, in corresponding circumstances outside Fiji.

(2) In determining for the purposes of this section whether an offence against the law of a designated Commonwealth country falls within the description set out in the Schedule, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law shall be disregarded.

(3) The descriptions set out in the Schedule include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring, the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences.

(4) References in this Act to the law of any State or country include references to the law of any part of that country.

General restrictions on extradition

6.-(1) A person shall not be extradited under this Act to a treaty State or to a designated Commonwealth country, or committed to or kept in custody for the purposes of such extradition if it appears to the Minister, or to the court of committal or the Supreme Court on an application for habeas corpus or for review of the order of committal-

(a) that the offence of which that person is accused or was convicted is an offence of a political character;

(b) that the request for extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

(c) that he might, if extradited, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

(2) A person accused of an offence shall not be extradited under this Act to any State or country, or committed to or kept in custody for the purpose of his extradition, if it appears as aforesaid, that if charged with the offence in Fiji he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3) A person shall not be extradited under this Act to any State or country, or committed or kept in custody for the purposes of such extradition, unless provision is made by the law of that State or country or by an arrangement made with the State or country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Fiji, be dealt with in that State or country, for or in respect of any offence committed before his extradition under this Act other than-

(a) the offence in respect of which the extradition under this Act is requested;

(b) any lesser offence proved by the facts proved before the court of committal; or

(c) any other offence being an extradition offence in respect of which the Minister may consent to his being so dealt with.

(4) Any such arrangement as is mentioned in subsection (3) may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Minister confirming the existence of an arrangement with a foreign State or Commonwealth country and stating its terms shall be conclusive evidence of the matters contained in the certificate.

PART III-PROCEEDINGS FOR EXTRADITION

Authority to proceed

7.-(1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Minister (in this Act referred to as an authority to proceed) issued in pursuance of a request made to him by or on behalf of the treaty State or the designated Commonwealth country in which the person to be extradited is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this section on behalf of any treaty State or designated Commonwealth country-

(a) in the case of a person accused of an offence, a warrant for his arrest issued in that State or country;

(b) in the case of a person unlawfully at large after conviction of an offence, a certificate of the conviction and sentence in that State or country, and a statement of the amount if any of that sentence which has been served,

together, in each case, with particulars of the person whose extradition is requested and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to satisfy the issue of a warrant for his arrest under section 8.

(3) On receipt of such a request the Minister may issue an authority to proceed unless it appears to him that an order for extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.

Arrest for the purposes of committal

8.-(1) A warrant for the arrest of a person accused of an extradition offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued-

(a) on the receipt of an authority to proceed by a magistrate within the jurisdiction of whom such person is or is believed to be;

(b) without such an authority by a magistrate upon information that the said person is or is believed to be on his way to Fiji,

and any warrant issued by virtue of paragraph (b) is in this Act referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence as would, in the opinion of the magistrate, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate.

(3) Where a provisional warrant is issued under this section, the authority by whom it is issued shall forthwith give notice to the Minister, and transmit to him the information and evidence, or certified copy of the information and evidence, upon which it was issued; and the Minister may in any case, and shall if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and, if that person has been arrested thereunder, discharge him from custody.

(4) A warrant of arrest issued under this section may be executed by any person to whom it is directed or by any police officer.

(5) Where a warrant is issued under this section for the arrest of a person accused of an offence of larceny or receiving stolen property or any other offence in respect of property, any magistrate shall have the like power to issue a warrant to search for the property as if the offence has been committed within the jurisdiction of such magistrate.

Proceedings for committal

9.-(1) A person arrested in pursuance of a warrant under section 8 shall (unless previously discharged under subsection (3) of that section) be brought as soon as practicable before a court presided over by a magistrate (in this Act referred to as the court of committal).

(2) For the purpose of proceedings under this section, a court of committal shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrate conducting a preliminary inquiry.

(3) Where the person arrested is in custody by virtue of a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a reasonable period (of which the court shall give notice to the Minister) after which he will be discharged from custody unless such an authority has been received.

(4) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extradition offence and is further satisfied-

(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;

(b) where that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,

the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his extradition thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody.

Actions concerning personal liberty

10.-(1) Where a person is committed to custody under section 9, the court shall inform him in ordinary language of his right of action in the Supreme Court for redress of a contravention of his right to personal liberty or for review of the order of committal, and shall forthwith give notice of the committal to the Minister.

(2) A person committed to custody under section 9 shall not be extradited under this Act-

(a) in any case, until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made;

(b) if an action has been instituted in the Supreme Court for redress of a contravention of his right to personal liberty or for review of the order of committal so long as proceedings on that action are pending.

(3) In any such action, the Supreme Court may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that-

(a) by reason of the trivial nature of the offence of which he is accused or was convicted; or

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to extradite him.

(4) On any such application the Supreme Court may receive additional evidence relevant to the exercise of their jurisdiction under section 6 or under subsection (3).

(5) For the purposes of this section proceedings in an action for redress of a contravention of a person's right to personal liberty or for review of an order shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.

Order for extradition

11.-(1) Where a person is committed to await his extradition and is not discharged by order of the Supreme Court, the Minister may by warrant order him to be extradited to the State or country by which the request for his extradition was made unless the extradition of that person is prohibited, or prohibited for the time being, by section 6 of this section or the Minister decides under this section to make no such order in his case.

(2) An order shall not be made under this section in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence, in Fiji-

(a) in the case of a person serving such a sentence, until the sentence has been served;

(b) in the case of a person charged with an offence, until the charge is disposed of or withdrawn and, if it results in a sentence of imprisonment (not being a suspended sentence), until the sentence has been served.

(3) The Minister shall not make an order under this section in the case of any person if it appears to the Minister, on the ground mentioned in subsection (3) of section 10, that it would be unjust or oppressive to return that person.

(4) The Minister may decide to make no order under this section in the case of a person accused or convicted of a relevant offence not punishable with death in Fiji if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made.

(5) The Minister may decide to make no order under this section for the return of a person committed in consequence of a request made on behalf of any State or country if another request for his return under this Act has been made on behalf of another State or country and it appears to the Minister, having regard to all the circumstances of the case and in particular-

(a) the relative seriousness of the offences in question;

(b) the date on which each such request was made; and

(c) the nationality or citizenship of the person concerned and his ordinary residence,

that preference should be given to the other request.

(6) Notice of the issue of a warrant under this section shall forthwith be given to the person to be extradited thereunder.

Discharge in case of delay in extraditing

12.-(1) If any person committed to await his extradition is in custody in Fiji under this Act after the expiration of the following period, that is to say-

(a) in any case, the period of two months beginning with the first day on which, having regard to subsection (2) of section 10, he could have been extradited;

(b) where a warrant for his extradition has been issued under section 11, the period of one month beginning with the day on which that warrant was issued,

he may apply to the Supreme Court for his discharge.

(2) If upon any such application the court is satisfied that reasonable notice of the proposed application has been given to the Minister, the court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody, and, if a warrant for his extradition has been issued under the said section 11, quash that warrant.

Evidence

13.-(1) In any proceedings under this Act, including proceedings on an application for the review of the order in respect of a person in custody under this Act-

(a) a document, duly authenticated, which purports to set out evidence given on oath in a treaty State or a designated Commonwealth country shall be admissible as evidence of the matters stated therein;

(b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received, in any proceedings in any such State or country shall be admissible in evidence;

(c) a document duly authenticated, which certifies that a person was convicted on a date specified in the document of an offence against the law of, or of a part of, any such State or country shall be admissible as evidence of the fact and date of the conviction.

(2) A document shall be deemed to be duly authenticated for the purposes of this section-

(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge, or magistrate or officer in or of the State or country in question to be the original document containing or recording that evidence or a true copy of such a document;

(b) in the case of a document which purports to have been received in evidence as aforesaid or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been, so received;

(c) in the case of a document which certifies that a person was convicted as aforesaid, if the document purports to be certified as aforesaid,

and in any such case the document is authenticated either by the oath of a witness or by the official seal of a Minister of the treaty State or the designated Commonwealth country as the case may be.

(3) In this section "oath" includes affirmation or declaration; and nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section.

Custody

14.-(1) Any person remanded or committed to custody under section 9 shall be committed to the like institution as a person charged with an offence before the court of committal.

(2) If any person who is in custody by virtue of a warrant under this Act escapes out of custody, he may be taken in any part of Fiji in like manner as a person escaping from custody under a warrant for his arrest in Fiji in respect of an offence committed therein,

(3) Where a person, being in custody in any part of Fiji whether under this Act or otherwise, is required to be removed in custody under this Act to another part of Fiji and is so removed, he shall be deemed to continue in legal custody until he reaches the place to which he is required to be removed.

(4) A warrant under section 11 for the extradition of any person to any State or country shall be sufficient authority for all persons to whom it is directed and all police officers to receive that person, keep him in custody and convey him into the jurisdiction of that country.

Form of warrants and orders

15. Any warrant or order to be issued or made by the Minister under any of the foregoing provisions of this Act shall be given under the hand of the Minister and shall be in the prescribed form.

PART IV-TREATMENT OF PERSONS EXTRADITED FROM TREATY
STATES AND COMMONWEALTH COUNTRIES

Restriction upon proceedings for other offences

16.-(1) This section applies to any person accused or convicted of an offence under the laws of Fiji who is returned to Fiji from any foreign State or designated Commonwealth country, under any law of that country corresponding with this Act.

(2) A person to whom this section applies shall not, during the period described in subsection (3) be dealt with in Fiji for or in respect of any offence committed before he was extradited to Fiji other than-

(a) the offence in respect of which he was extradited;

(b) any lesser offence proved by the facts proved for the purposes of securing his extradition; or

(c) any other offence in respect of which the Government of the State or of the country from which he was extradited may consent to his being dealt with.

(3) The period referred to in subsection (2) in relation to a person to whom this section applies shall be the period beginning with the day of his arrival in Fiji on his extradition as mentioned in subsection (1) and ending forty-five days after the first subsequent day on which he has the opportunity to leave Fiji,

Restoration of persons not tried, or acquitted

17.-(1) This section applies to any person accused of an offence under the law of Fiji who is extradited to Fiji as mentioned in subsection (1) of section 16.

(2) If in the case of a person to whom this section applies either-

(a) proceedings against him for the offence for which he was extradited are not begun within the period of six months beginning with the day of his arrival in Fiji on being extradited; or

(b) on his trial for that offence, he is acquitted or discharged,

the Minister may, if he thinks fit, on the request of that person, arrange for him to be sent back free of charge and with as little delay as possible to the country from which he was extradited.

PART V-MISCELLANEOUS

Liability for arrest, etc., of fugitive offenders in respect of extradition offences

18. Every fugitive offender of a treaty State or designated Commonwealth country shall, subject to the provisions of this Act, be liable to be arrested and dealt with whether the offence in respect of which he is to be dealt with was committed before or after the commencement of this Act.

Property found on fugitive offenders

19. Everything found in the possession of an offender at the time of his arrest which may be material as evidence in proving the extradition offence may be delivered up with the offender when he is dealt with subject to the rights, if any, of third persons in respect thereto.

Bilateral agreements

20. The provisions of this Act shall apply mutatis mutandis in a case where a bilateral agreement or bilateral arrangements exist between a foreign State or a Commonwealth country and Fiji.

Regulations

21. The Minister may make regulations prescribing anything which is required to be prescribed and generally for the better carrying into effect the provisions of this Act.

DESCRIPTION OF EXTRADITION OFFENCES IN
DESIGNATED COMMONWEALTH COUNTRIES
(Section 5)

1. Murder of any degree.
2. Manslaughter or culpable homicide.
3. An offence against the law relating to abortion.
4. Maliciously or wilfully wounding or inflicting grievous bodily harm.
5. Assault occasioning actual bodily harm.
6. Rape.
7. Unlawful sexual intercourse with a female.
8. Indecent assault.
9. Procuring, or trafficking in, women or young persons for immoral purposes.
10. Bigamy,
11. Kidnapping, abduction or false imprisonment, or dealing in slaves.
12. Stealing, abandoning, exposing or unlawfully detaining a child.
13. Bribery.
14. Perjury or subornation of perjury or conspiring to defeat the course of justice.
15. Arson or fire-raising.
16. An offence concerning counterfeit currency.
17. An offence against the law relating to forgery.
18. Stealing, embezzlement, fraudulent conversion, fraudulent false accounting, obtaining property or credit by false pretences, receiving stolen property or any other offence in respect of property involving fraud.
19. Burglary, housebreaking or any similar offence.
20. Robbery.
21. Blackmail or extortion by means of threats or by use of authority.
22. An offence against bankruptcy law or company law.
23. Malicious or wilful damage to property.
24. Acts done with the intention of endangering vehicles, vessels or aircraft.
25. Hijacking of aircraft or aircraft sabotage.
26. An offence against the law relating to dangerous drugs or narcotics.
27. Piracy.
28. Revolt against the authority of the master of a ship or the commander of an aircraft.
29. Contravention of import or export prohibitions relating to precious stones, gold and other precious metals.

Controlled by Office of the Prime Minister

CHAPTER 23
EXTRADITION

SECTION 3-DESIGNATION OF COMMONWEALTH COUNTRIES

Orders 23 May 1977*,
7 March 1980t
* See Legal Notice No. 54 of 1977.
t See Legal Notice No. 56 of 1980.

The following Commonwealth countries have been designated for the purposes of the Act:-

SECTION 21 – EXTRADITION (FORMS) REGULATIONS

ARRANGEMENT OF REGULATIONS

REGULATION

1. Short title
2. Forms to be used.

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Regulations* 25th May 1980
* See Legal Notice No. 105 of 1980.

(Made by the Prime Minister and
Minister for Foreign Affairs)

Short title

1. These Regulations may be cited as the Extradition (Forms) Regulations.

Forms to be used

2. The forms contained in the Schedule shall be used for the purposes for which they are applicable.

SCHEDULE
(Regulation 2)

FORMS
Form 1

ORDER OF AUTHORITY TO PROCEED
(EXTRADITION ACT, SECTION 7(1)

To The Chief Magistrate:

A request having been made to the Minister by or on behalf of (here name the requesting country) for the return to that country of A.B. who is accused [or alleged to be unlawfully at large after conviction] of the offence(s) of

The Minister hereby orders that a Resident Magistrate proceed with the case in accordance with the provisions of the Extradition Act.

Dated the day of , 19 .

Minister for Foreign Affairs

Form 2

WARRANT FOR RETURN TO REQUESTING COUNTRY
(EXTRADITION ACT, SECTION 11)

To the Controller of Prisons at and to-

(here set out the name(s) and particulars, e.g. occupation and address, of the persons who will escort the prisoner back to requesting country)

of

Whereas a request has been made to the Minister by or on behalf of (here name the requesting country) for the return to that country of A. B. (hereinafter called the prisoner) who is accused [or alleged to be unlawfully at large after conviction] of the offence(s) of

And whereas the prisoner was delivered into the custody of the said Controller of Prisons by warrant of a Court of Committal dated the day of 19 , in pursuance of section 7 of the Extradition Act, to await his extradition;

And whereas the prisoner has not been discharged from custody by order of the Supreme Court;

Now therefore I Minister for Foreign Affairs in pursuance of section 11 of the Extradition Act, order-

(a) you the said Controller of Prisons to deliver the prisoner into the custody of the said (names of escorts), and

(b) you the said (names of escorts) to receive the said prisoner into your custody and to convey him to a place in or within the jurisdiction of (requesting country) and there surrender him to some person appointed to receive him.

Given under my hand at Suva, Fiji this day of , 19 .

Minister of Foreign Affairs

Controlled by Ministry of Foreign Affairs

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