Extradition Act 2003

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1. Short title and commencement
2. Interpretation
3. Extradition offence
4. Extradition objection
5. Forms of warrants

6. Purpose of Part 2
7. Issue of provisional arrest warrant
8. Arrest and remand on provisional arrest warrant
9. Release from remand
10. Authority to proceed
11. Arrest and remand on authority to proceed
12. Consent to surrender
13. Extradition proceedings
14. Conduct of extradition proceedings
15. Determination whether person should be surrendered
16. Supporting documents
17. Review of magistrates decision
18. Surrender determination
19. Surrender warrant
20. Temporary surrender warrant
21. Execution of surrender warrant

22. Purpose of Part 3
23. Application of Part 2
24. Application of different evidentiary requirements
25. The prima facie evidence scheme
26. The record of the case scheme

PART 4 EXTRADITION FROM THE FIJI ISLANDS TO OTHER PACIFIC ISLANDS FORUM COUNTRIES BACKING OF WARRANTS PROCEDURE

27. Purpose of Part 4
28. Provisional arrest warrant
29. Arrest and remand on provisional arrest warrant
30. Endorsement of warrant
31. Arrest and remand on endorsed warrant
32. Release from remand
33. Extradition proceedings
34. Conduct of extradition proceedings
35. Consent to surrender
36. Determination whether person should be surrendered
37. Review of magistrate's decision
38. Surrender warrant
39. Temporary surrender warrant
40. Execution of surrender warrant

43. Purpose of Part 6
44. Application of Part 2
45. When comity country is an extradition country
46. Limitation on extradition proceedings
47. Other modifications of Part 2

48. Purpose of Part 7
49. Search and seizure on arrest without a warrant
50. Search and seizure warrants
51. Return etc. of seized property
52. Arrest of persons escaping from custody
53. Arrest of persons released on bail
54. Transit

55. Purpose of Part 8
56. Surrendered persons to be brought into the Fiji Islands
57. Treatment of persons surrendered to the Fiji Islands specialty
58. Persons temporarily surrendered to the Fiji Islands
59. 59. Evidence for purposes of surrender of persons to the Fiji Islands

60. Taking of evidence at request of another country
61. Prosecution, instead of extradition of the Fiji Islands citizens
62. Provision of evidence for prosecution by other countries
63. Surrender for purposes of trial only
64. Granting of bail
65. Restrict on interlocutory applications, etc
66. Regulations
67. Repeals and saving

SCHEDULE 1 Commonwealth Countries
SCHEDULE 2 Pacific Islands Forum Countries
SCHEDULE 3 Treaty Countries
SCHEDULE 4 Forms of Warrants

TO REGULATE THE EXTRADITION OF PERSONS FROM THE FIJI ISLANDS, TO FACILITATE THE MAKING OF REQUESTS FOR EXTRADITION BY THE FIJI ISLANDS TO OTHER COUNTRIES, TO ENABLE THE FIJI ISLANDS TO CARRY OUT ITS OBLIGATIONS UNDER EXTRADITION TREATIES AND FOR RELATED MATTERS

1. This Act is cited as the Extradition Act 2003 and comes into force on a date appointed by the Minister by notice in the Gazette.

"comity country" means a country other than a Commonwealth country, a Pacific Islands Forum country or a treaty country;

(b) a territory for the international relations of which a country is responsible; and

"endorsed warrant" means a warrant that has been issued in a Pacific Islands Forum country and endorsed under section 30;

"extradition request" means a written request by a country for the surrender of a person to the country;

(a) to which the country and the Fiji Islands are parties (whether or not any other country is also a party; and

(b) that relates wholly or partly to the surrender of persons accused or convicted of offences;

"foreign escort officer" means a representative of the country to whom a person is to be surrendered who is authorised by that country to escort the person from the Fiji Islands to that country;

"original warrant" means a warrant issued in a Pacific Islands Forum country for the arrest of a person;

"political offence", in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include -

(i) that is constituted by conduct of a kind referred to in a multilateral treaty to which the Fiji Islands is a party; and

(ii) threatening or attempting to commit, or participating as an accomplice in, murder, kidnapping or other attack on the person or liberty, of the head of State, head of Government or Minister of the Government of the country or a member of his or her immediate family; or

(d) any other offence that the Fiji Islands and the other country have agreed will not be treated as a political offence for the purposes of extradition;

"prison" means a prison established under the Prisons Act and includes a gaol, police cell or other place where a person is ordered under this Act to be detained;

(a) where the expression is used in Part 2 a warrant, in accordance with Form 1 in Schedule 4, issued under section 7; or

(b) where the expression is used in Part 4 a warrant, in accordance with Form 2 in Schedule 4, issued under section 28;

"requesting country" means a country that is seeking the surrender of a person from the Fiji Islands;

"Pacific Islands Forum country" means a country that is a member country of the Pacific Islands Forum country listed in Schedule 2;

"specialty undertaking" means an undertaking by a requesting country about the treatment of a person whose surrender is sought by the requesting country;

(a) where the expression is used in Part 2 a warrant, in accordance with Form 3 in Schedule 4, issued under section 12 or 19; or

(b) where the expression is used in Part 4 a warrant, in accordance with Form 4 in Schedule 4, issued under section 35 or 38;

(a) where the expression is used in Part 2 a warrant, in accordance with Form 5 in Schedule 4, issued under section 20; or

(b) where the expression is used in Part 4 a warrant, in accordance with Form 6 in Schedule 4, issued under section 39;

"treaty" includes a convention, protocol, or agreement between 2 or more countries;

"treaty country" means a country listed in Schedule 3 with which the Fiji Islands has an extradition treaty;

"writing" includes facsimile, electronic mail and any other means of communication, which can be reproduced in printed form.

(a) it is an offence against a law of the requesting country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; and

(b) the conduct that constitutes the offence, if committed in the Fiji Islands, would constitute an offence in the Fiji Islands for which the maximum penalty is life imprisonment or other term of imprisonment or deprivation of liberty, for a period of not less than 12 months.

(2) In determining whether conduct constitutes an offence, regard may be had to only some of the acts or omissions that make up the conduct.

(3) In determining the maximum penalty for an offence for which no statutory penalty is imposed, regard must be had to the level of penalty that can be imposed by any court in the requesting country for the offence.

(a) it is an offence against a law of the requesting country relating to taxation, customs duties or other revenue matters or relating to foreign exchange control; and

4. There is an extradition objection to a request for the surrender of a person for an extradition offence if -

(b) there are substantial grounds for believing that surrender of the person is sought for the purpose of prosecuting or punishing the person because of his or her race, religion, nationality, political opinions, sex or status, or for a political offence in the requesting country;

(c) on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of his or her race, religion, nationality, political opinions, sex or status;

(d) the offence is an offence under the Republic of Fiji Military Forces Act but also not an offence under the Penal Code or other written laws;

(e) final judgment has been given against the person in the Fiji Islands, or in the third country, for the offence;

(f) under the law of the requesting country or the Fiji Islands, the person has become immune from prosecution or punishment because of lapse of time, amnesty or any other reason;

(g) the person has already been acquitted or pardoned in the requesting country or the Fiji Islands, or punished under the law of that country or the Fiji Islands, for the offence or another offence constituted by the same conduct as the extradition offence; or

(h) the judgment has been given in the persons absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have.

5. The arrest warrant, provisional arrest warrant and surrender warrant are set out in Schedule 4.

6.-(1) The purpose of this Part is to provide for the extradition from the Fiji Islands to other countries of persons accused or convicted of extradition offences in other countries. -

(2) This Part applies to extradition from the Fiji Islands to another country as follows -

(c) to any other country other than a Pacific Islands Forum country in accordance with Part 6.

(a) a country, either directly or through ICPO-Interpol, notifies the Fiji Islands that -

(i) a person whose surrender is desired is, or is believed to be, in or on his or her way to the Fiji Islands; and

(ii) the requesting country intends to make a formal request for the extradition of the person; and

(b) an application on behalf of the requesting country is made to a magistrate for a provisional arrest warrant,

(d) the magistrate is satisfied that the offence is an extradition offence; and

(e) the magistrate is satisfied that an extradition country makes the request.

(a) a copy of the warrant for the arrest of the person issued in the requesting country;

(d) the text of the law creating the offence or, if the offence is not created by statute, a statement of the offence; and

(e) the text of the law of the requesting country that prescribes the penalty or, if the penalty is not prescribed by statute, a statement of the penalty that can be imposed.

8.-(1) A person arrested under a provisional arrest warrant must be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond remand the person on bail, until the Minister issues an authority to proceed.

(a) has the same powers in relation to bonds and reporting conditions as he or she has under Bail Act or any other written law.

(b) may order that the persons passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person must not be remanded in custody or on bail for a period longer than 42 days.

(5) As soon as possible after remanding the person, the magistrate must in writing-

(b) give a copy of the documents on which the issue of the provisional arrest warrant is based to the Director of Public Prosecutions and the person.

(6) If the Director of Public Prosecutions considers that the request for extradition of the person for the offence may not be granted, the Director of Public Prosecutions must apply to a magistrate for an order that-

(ii) where the extradition treaty between the Fiji Islands and the requesting country provides for another period that other period, after the date when the person was arrested; and

(2) The magistrate may remand the person, in custody or on bail, for a further period of not more than 42 days if the magistrate is satisfied that an authority to proceed will be issued within that period.

(iii) there is nothing in section 19 or any other law that would preclude surrender of the person;

(iv) there is no other reason why the authority to proceed should not be issued;

(d) provide a copy of the authority to proceed and the extradition request to the person.

(2) If an authority to proceed is received by a magistrate in relation to a person who has not been arrested under a provisional arrest warrant, the magistrate must issue a warrant for the arrest of the person.

11.-(1) A person who is arrested under a warrant issued under section 10(2) must be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond remand the person on bail,

for the period that is necessary for proceedings under section 13 to be conducted.

(a) has the same powers in relation to bond and reporting conditions as he or she has under the Bail Act or any other written Law.

(b) may order that the persons passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) If a magistrate remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand, unless the first magistrate is no longer available.

12.-(1) At any time the person may advise a magistrate that he or she consents to being surrendered to the requesting country for the extradition offence for which that country seeks his or her surrender.

(b) the requesting country has asked that the person also be surrendered for another offence that is not an extradition offence,

the magistrate must ask the person whether the person also consents to being surrendered for that other offence.

(a) the person informs the magistrate that he or she consents to being surrendered; and

the magistrate must inform the person that the effect of consenting will be that

(c) the person will be committed to prison without any extradition proceedings to determine whether the person should be surrendered for an extradition offence; and

(d) after a Judge issues a surrender warrant, the person will be surrendered to the requesting country.

(b) advise a Judge in writing that the person has been committed to prison for the offence for which the person has consented to be surrendered.

(a) the Minister has issued an authority to proceed for an extradition offence in relation to a person;

(c) an application is made to a magistrate by or on behalf of the person or the requesting country for extradition proceedings to be conducted in relation to the person; and

(d) the magistrate considers that the person and the requesting country have had reasonable time since the person received a copy of the extradition request in which to prepare for the proceedings,

the magistrate must conduct proceedings to determine whether the person should be surrendered for the extradition offence for which the surrender of the person is sought.

14.-(1) Extradition proceedings must be conducted in the same manner as criminal proceedings. In particular, the rules that apply in criminal proceedings to the following matters apply to extradition proceedings-

(f) contempt of court, privilege and other matters relating to the administration of courts;

(2) In the proceedings, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought.

15.-(1) A magistrate must not order that a person be held in custody until a surrender determination is made or refused unless the magistrate is satisfied-

(f) that surrender should not be refused because the person sought has established an extradition objection.

(2) If the magistrate orders that the person be held in custody, the magistrate must-

(a) issue a warrant, ordering that the person be committed to prison to await the Judges decision on surrender;

(b) inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 17;

(c) record in writing his or her decision and the extradition offence for which the person should be surrendered; and

(d) provide a copy of the record to the person, the Director of Public Prosecutions and the Minister.

(b) the requesting country has asked that the person also be surrendered for another offence that is not an extradition offence,

the magistrate must ask the person whether the person also consents to being surrendered for that other offence.

(4) If the magistrate determines that the person should not be surrendered to the requesting country, the magistrate must

(b) advise the Minister in writing of the order and of the magistrates reasons for determining that the person should not be surrendered.

16.-(1) In section 15(1)(d), supporting documents, in relation to an extradition offence, means-

(a) a description as accurate as possible of the person sought, together with any other information that may help to establish the identity and nationality of the person;

(b) the text of the law creating the offence or, if the offence is not created by statute, a statement of the offence;

(c) the text of the law of the requesting country that prescribes the penalty or, if the penalty is not prescribed by statute, a statement of the penalty that can be imposed;

(d) a statement of the acts and omissions that constitute the offence, and details of the time and place the offence was committed;

(e) if the person is accused of the offence a warrant issued by the requesting country for the arrest of the person for the offence, or a duly authenticated copy of the warrant; and

(f) if the person has been convicted of the offence documents, or duly authenticated copies of documents, that provide evidence of

the magistrate must adjourn the proceedings for a reasonable period to allow the deficiency to be remedied.

(4) A document that is sought by or on behalf of the requesting country to be admitted in the proceedings is duly authenticated if-

(a) it purports to be signed or certified by a judge, magistrate or officer in or of the requesting 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-

(i) in any case of the requesting country or of a Minister, Department or officer of the Government of that country; or

(ii) if the extradition country is a colony, territory or protectorate of the person administering the Government of that country or a person administering a Department of the Government of that country.

(5) Nothing in this section prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Fiji Islands.

17.-(1) If a magistrate orders that a person be held in custody until a surrender determination is made or refused, the person may apply to the High Court for a review of the order.

(2) If a magistrate orders that a person be released, or that the person be surrendered for some offences only, the requesting country may apply to the High Court for a review of the order.

(3) The application must be made within 15 days after the day on which the magistrate makes the order.

(4) The High Court must have regard only to the material that was before the magistrate.

(5) The High Court may, by order, confirm or quash the order of the magistrate and order that the person be held for surrender or released.

(6) If the High Court orders that the person be held until a surrender determination is made or refused, the Court must include in its judgment a statement specifying the offence and must-

(a) if the person is not in custody by warrant commit the person to prison until a Judge has made a decision under section 18; or

(b) if the person is in custody order that the person remain in custody until a Judge has made a decision under section 18.

(7) If the High Court orders that the person be released, the person must be released accordingly.

(a) a magistrate has reported to a Judge that a person should be held for surrender; and

(b) the period during which an appeal may be lodged has ended and no appeal was lodged or, on appeal, the court ordered that the person be held for surrender or 21 days has expired after the date of the order for determination for surrender by the magistrate,

(i) the requesting country is not a country with which the Fiji Islands has a bilateral treaty containing a specialty undertaking; or

(ii) the law of the requesting country does not contain a provision prohibiting prosecution for an offence other than the one for which the person is surrendered; or

(c) the offence for which surrender has been ordered is punishable by death in the requesting country but not in the Fiji Islands and the requesting country has not given sufficient undertaking that the penalty either will not be imposed or, if imposed, will not be carried out;

(d) a prosecution for the offence for which surrender has been ordered is pending against the person in the Fiji Islands;

(e) the offence for which surrender has been ordered was committed outside the territory of the requesting country and the law of the Fiji Islands does not provide for jurisdiction over an offence of that kind committed in similar circumstances outside its territory;

(f) the offence for which surrender has been ordered is regarded by the Fiji Islands as having been committed wholly or partly within the Fiji Islands;

(g) the person has been sentenced or would be liable to be tried or sentenced in the requesting country by an extraordinary or ad hoc court or tribunal;

(h) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment; or

(i) the national interest of the Fiji Islands, including its interests in effective international cooperation to combat crime; and

(3) For the purposes of subsection (2)(a), the requesting country is taken to have given a specialty undertaking if it undertakes that the person will not, without having the opportunity of leaving the requesting country-

(a) be detained or tried for an offence committed before surrender, other than-

(ii) an offence of which the person could be convicted on proof of the facts constituting the offence for which surrender is sought, for which the penalty is no greater than the penalty for the offence for which surrender is sought; or

(b) be detained in the requesting country for surrender to a third country for an offence committed before surrender to the requesting country,

unless the Minister, on the advice of the Director of Public Prosecutions, consents to the trial or the surrender to the third country.

(4) A Judge must not refuse to surrender a person because the person may be subjected to torture or cruel, inhuman or degrading treatment or punishment if the requesting country and the Fiji Islands have ratified-

(a) the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, being the convention of that title that was adopted by the General Assembly of the United Nations on 10 December 1984; or

(5) If the Judge decides that the person is to be surrendered to the requesting country, the Judge must issue a surrender warrant or a temporary surrender warrant for the person.

(6) If the Judge decides that the person is not to be surrendered to the requesting country, the Judge must order that the person be released.

(c) require any person who has custody of the person to hand the person over to a police officer;

(i) transport the person from the place where the police officer takes custody of the person to another place within the Fiji Islands for the purpose of handing the person over to the custody of a foreign escort officer;

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(e) authorise the foreign escort officer to transport the person out of the Fiji Islands.

(2) If the person is serving a custodial sentence, or has been admitted to bail in the Fiji Islands for an offence committed in the Fiji Islands, the surrender warrant must not be executed until-

20.-(1) A Judge may issue a temporary surrender warrant instead of a surrender warrant if-

(b) surrender is sought for an offence of which the person is accused but of which the person has not been convicted;

(c) the Judge is satisfied that the requesting country has given an adequate undertaking that-

(d) the Judge is satisfied that adequate provision has been made for the travel of the person to the requesting country and for his or her return to the Fiji Islands.

(c) require any person who has custody of the person to hand the person over to a police officer;

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(e) authorise the foreign escort officer to transport the person out of the Fiji Islands.

(a) has been returned to the Fiji Islands after trial and sentence in the requesting country; and

the Judge may issue a surrender warrant for the surrender of the person to the requesting country, unless the Judge is satisfied that it would be unjust or oppressive to surrender the person because of changed circumstances in the requesting country.

(4) Any time the person spends in custody in the requesting country as a result of the temporary surrender warrant is taken to be time spent in custody in the Fiji Islands for the purpose of completing the sentence for which the person was in custody in the Fiji Islands.

(a) time spent in custody in the requesting country is taken into account as mentioned in subsection (4); and

the Minister must inform the requesting country that the undertakings given by that country about the speedy trial and return of the person no longer apply.

21.-(1) If a person is not surrendered under a surrender warrant within 2 months after-

(b) if the person is serving a custodial sentence, or has been admitted to bail in the Fiji Islands the person has been released from custody or the bond has been discharged,

the person may apply to a Judge to be released from custody and the person must serve a copy of the application on the Director of Public Prosecutions and the Minister.

(a) the Director of Public Prosecutions and the Minister have been served with the application; and

(a) it would have been a danger to the persons life, or prejudicial to the persons health, to surrender the person;

(b) there was no suitable means of transporting the person to the requesting country, and all reasonable steps were taken to obtain suitable transport;

(c) there was delay by a country in responding to a request by the requesting country for permission to transport the person, and all reasonable steps were taken to obtain the permission; or

(d) because of the remoteness of the requesting country, it would be unreasonable to expect the person to have been surrendered within the period mentioned in subsection (1).

22. The purpose of this Part is to provide for the extradition from the Fiji Islands to Commonwealth countries of persons accused or convicted of extradition offences in those countries.

23. Part 2 applies to the extradition of a person from the Fiji Islands to a Commonwealth country.

24.-(1) The evidentiary requirements set out in section 25 apply to all extradition proceedings conducted at the request of a Commonwealth country listed in Part 1 of Schedule 1.

(2) The evidentiary requirements set out in section 26 apply to all extradition proceedings conducted at the request of a Commonwealth country listed in Part 2 of Schedule 1.

25. In addition to any evidentiary requirements in Part 2, a magistrate must not determine that a person should be surrendered to a requesting country unless the evidence before the magistrate is such that, if the offence for which surrender is sought was committed in the Fiji Islands, there would be sufficient evidence to place the person on trial.

26.-(1) In this section, record of the case, for an offence for which surrender is sought, means-

(a) a document containing a recital of the evidence acquired to support the request; and

(b) an authenticated copy, reproduction or photograph of all exhibits and documentary evidence.

(2) In addition to any evidentiary requirements in Part 2, a magistrate must not determine that a person should be surrendered to a requesting country unless a record of the case is produced for the offence for which surrender is sought.

(a) an affidavit of an officer of the authority that investigated the matter, stating that-

(i) the record of the case was prepared by him or her, or under his or her direction; and

(ii) the evidence in the record of the case has been preserved for use in the persons trial; and

(b) a certificate of the Minister of the requesting country stating that, in his or her opinion, the record of the case discloses the existence of evidence that is sufficient under the law of the requesting country to justify a prosecution in the requesting country.

PART 4 EXTRADITION FROM THE FIJI ISLANDS TO
OTHER PACIFIC ISLANDS FORUM COUNTRIES
- BACKING OF WARRANTS PROCEDURE

27. The purpose of this Part is to provide for the extradition from the Fiji Islands to Pacific Islands Forum Countries of persons accused or convicted of extradition offences in those countries, by means of the procedure known as backing of warrants.

(a) an application is made to a magistrate on behalf of a Pacific Islands Forum country for the issue of a warrant for the arrest of a person;

(i) an original warrant for the arrest of the person has been issued in the Pacific Islands Forum country but the warrant is not available in the Fiji Islands; and

(ii) the person named in the original warrant may be in or on his or her way to the Fiji Islands; and

(c) the magistrate is satisfied that it is reasonable in the circumstances to issue a warrant,

29.-(1) A person arrested under a provisional arrest warrant must be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond remand the person on bail,

until the Pacific Islands Forum country produces the original warrant on which the provisional arrest warrant was based.

(a) has the same powers in relation to bond and reporting conditions as the magistrate has under the Bail Act or any other written Law; and

(b) may order that the persons passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person must not be remanded in custody or on bail for a period longer than 28 days.

(a) an application is made to a magistrate on behalf of a Pacific Islands Forum country for the endorsement of a warrant for the arrest of a person issued in the Pacific Islands Forum country (an original warrant); and

(b) the magistrate is informed by affidavit that the person named in the original warrant is, or is suspected of being, in or on his or her way to the Fiji Islands,

the magistrate must endorse the original warrant to authorise the arrest of the person under the warrant in the Fiji Islands.

31.-(1) A person who is arrested under an endorsed warrant must be brought before a magistrate as soon as practicable.

(b) if the magistrate is satisfied that the person is unlikely to abscond remand the person on bail,

for the period that is necessary for proceedings under section 33 or 35 or both, to be conducted.

(a) has the same powers in relation to bond and reporting conditions as he or she has under the Bail Act or any other written Laws; and

(b) may order that the persons passport and other travel documents be surrendered to the magistrate until the extradition proceedings in relation to the person are concluded.

(4) A person must not be remanded in custody or on bail for a period longer than 28 days.

(5) If a magistrate remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand, unless the first magistrate is no longer available.

(a) a person is on remand in custody or on bail 28 days after the day on which the person was arrested on a provisional warrant; and

unless the magistrate is satisfied that the endorsed warrant will be obtained within a particular period that is reasonable in all the circumstances.

(a) a person is on remand in custody or on bail 28 days after the day on which the person was arrested on an endorsed warrant; and

(b) no request has been made under section 33 for extradition proceedings to be conducted,

as the case requires, unless the magistrate is satisfied that a request under section 35 for extradition proceedings to be conducted will be made within a particular period that is reasonable in all the circumstances.

(ii) a provisional arrest warrant and the original warrant has been endorsed; and

(b) a request is made to a magistrate by or on behalf of the person or the Pacific Islands Forum country for extradition proceedings to be conducted in relation to the person,

the magistrate must conduct proceedings as soon as practicable to determine whether the person should be surrendered to the Pacific Islands Forum country.

34.-(1) A magistrate must not conduct extradition proceedings unless the magistrate is satisfied that both the person sought and the Pacific Islands Forum country have had reasonable time to prepare for the conduct of the proceedings.

(2) Extradition proceedings must be conducted in the same manner as criminal proceedings. In particular, the rules that apply in criminal proceedings in relation to the following matters apply to the extradition proceedings-

(f) contempt of court, privilege and other matters relating to the administration of courts;

(3) In the proceedings, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought.

35.-(1) At the proceedings the magistrate must ask the person if he or she consents to being surrendered.

(a) the person informs the magistrate that he or she consents to being surrendered; and

(3) If the person again consents to being surrendered, the magistrate must refer the matter to a Judge who must-

(a) by a surrender warrant, order that the person be surrendered to the Pacific Islands Forum country; and

(b) by warrant, order that the person be committed to prison until the person is surrendered to the Pacific Islands Forum country.

36.-(1) At the proceedings the person may not bring evidence that the person did not commit the offence except evidence about the matters mentioned in subsection (2).

(2) The magistrate must determine that the person should be surrendered for an offence unless the magistrate is satisfied that

(b) if the offence is one of which the person is accused but not convicted the accusation was not made in good faith and in the interests of justice;

(d) it would be unjust, oppressive or too severe a punishment to surrender the person; or

(e) the prison conditions in the requesting country are not substantially equivalent to the minimum standards for imprisonment in the Fiji Islands.

(3) If the magistrate determines that the person should be surrendered, the magistrate must refer the matter to a Judge who must, after 21 days has expired from the date of the order for determination for surrender by the magistrate

(a) by a surrender warrant, order that the person be surrendered to the Pacific Islands Forum country;

(b) by warrant, order that the person be committed to prison until the person is surrendered to the Pacific Islands Forum country;

(c) inform the person that he or she may, within 15 days of the day on which the order is made, seek a review of the order under section 37;

(d) record in writing his or her decision and the extradition offence for which the person is to be surrendered; and

(b) surrender is sought for an offence for which the person is accused but not convicted,

the Judge must not issue a surrender warrant for the person but must issue a warrant under section 39.

(5) If the Judge determines that the person should not be surrendered to the Pacific Islands Forum country, the Judge must order that the person be released.

37.-(1) If a magistrate makes an order for the surrender of a person, the person may apply to the High Court for a review of the order.

(2) If a magistrate makes an order for the release of a person, the Pacific Islands Forum country may apply to the High Court for a review of the order.

(3) The application must be made within 15 days after the day on which the magistrate makes the order.

(4) The Court must have regard only to the material that was before the magistrate.

(5) The Court may, by order, confirm or quash the order of the magistrate and order that the person be surrendered or released.

(6) If the Court orders that the person be surrendered, the Court must include in its judgment a statement specifying the offence and must

(a) if the person is not in custody by warrant commit the person to prison until the person is surrendered; or

(b) if the person is in custody order that the person remain in custody until the person is surrendered.

(b) if the person has been remanded on bail order that the bond be discharged.

(b) require any person who has custody of the person to hand the person over to a police officer;

(ii) hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(d) authorise the foreign escort officer to transport the person out of the Fiji Islands.

(2) If the person is serving a custodial sentence, or has been admitted to bail, in the Fiji Islands for an offence committed in the Fiji Islands, the surrender warrant must not be executed until

39.-(1) A Judge may issue a temporary surrender warrant instead of a surrender warrant if-

(b) surrender is sought for an offence of which the person is accused but of which the person has not been convicted;

(c) the Judge is satisfied that the Pacific Islands Forum country has given an adequate undertaking that

(i) the person will be given a speedy trial in the Pacific Islands Forum country; and

(d) the Judge is satisfied that adequate provision has been made for the travel of the person to the Pacific Islands Forum country and for his or her return to the Fiji Islands.

(c) require any person who has custody of the person to hand the person over to a police officer;

(i) to transport the person from the place where the police officer takes custody of the person to another place within the Fiji Islands for the purpose of handing the person over to the custody of a foreign escort officer; and

(ii) to hold the person in custody for so long as is necessary to enable the person to be handed over to the foreign escort officer; and

(e) authorise the foreign escort officer to transport the person out of the Fiji Islands.

(a) has been returned to the Fiji Islands after trial and sentence in the Pacific Islands Forum country; and

a Judge must issue a surrender warrant for the surrender of the person to the Pacific Islands Forum country.

(4) Any time the person spends in custody in the Pacific Islands Forum country is taken to be time spent in custody in the Fiji Islands for the purpose of completing the sentence for which the person was in custody in the Fiji Islands.

(a) time spent in custody in the Pacific Islands Forum country is taken into account as mentioned in subsection (3); and

the Minister must inform the requesting country that the undertakings given by that country about the speedy trial and return of the person no longer apply.

40.-(1) If a person is not surrendered under a surrender warrant within 2 months after-

(b) if the person is serving a custodial sentence, or has been admitted to bail in the Fiji Islands the person has been released from custody or the bond has been discharged,

the person may apply to a Judge to be released from custody and the person must serve a copy of the application on the Director of Public Prosecutions and Minister.

(a) the Director of Public Prosecutions and the Minister have been served with the application; and

(a) it would have been a danger to the persons life or prejudicial to the persons health, to surrender the person;

(b) there was no suitable means of transporting the person to the requesting country, and all reasonable steps were taken to obtain suitable transport; or

(c) there was delay by the Fiji Islands in responding to a request for permission to transport the person, and all reasonable steps were taken to obtain the permission.

41. The purpose of this Part is to provide for the extradition of persons from the Fiji Islands to countries with which the Fiji Islands has an extradition treaty.

42. Part 2 applies to the extradition of a person to a treaty country subject to-

(a) any limitations, conditions, exceptions or qualifications that are contained in the extradition treaty between the Fiji Islands and the treaty country; and

43. The purpose of this Part is to provide for extradition from the Fiji Islands to countries other than Commonwealth countries, Pacific Islands Forum Countries or treaty countries.

44. Subject to this Part, Part 2 applies to the extradition of a person from the Fiji Islands to a comity country.

(b) if an extradition request is received from a comity country that is not prescribed under paragraph (a) certify that the country is an extradition country for the purpose of that extradition request.

(2) When the Minister certifies that the country is an extradition country, he or she may also specify the provisions of this Act that are to apply to the extradition request.

(3) In determining whether a comity country is to be an extradition country, the Minister must consider-

(b) if the country is to be certified the seriousness of the offence for which extradition of the person is sought; and

46. Proceedings may not be commenced on a request from a comity country for the surrender of a person unless the country has been prescribed or certified as an extradition country under section 47.

47. When the Minister prescribes a comity country as an extradition country, the Minister may also modify Part 2 in its application to the country under this Part.

48. The purpose of this Part is to provide for the search of persons and seizure of property, the arrest of certain persons, and the transit of extradited persons through third countries.

(2) If a police officer who arrests a person under this Act has reasonable grounds for suspecting that property in the vicinity of the person-

(a) may be material as evidence in proving an offence for which the warrant was issued; or

(b) has been acquired by the person as the result of the offence for which the warrant was issued,

(b) has reasonable grounds for suspecting that there is on the person, in the clothing that the person is wearing or in or on any property in the vicinity of the person that is under the apparent control of the person, any thing (including a sum of money) that-

(i) may be material as evidence in proving any offence in relation to which the warrant was issued or for which surrender of the person is sought; or

the police officer may search the person, the persons clothing or the property and may seize any thing found as a result of the search.

(4) Subsection (3) does not authorise a police officer to remove, or to require the person to remove, any of the clothing that the person is wearing.

(6) A police officer must retain in safe keeping any property or thing seized pending a direction from the magistrate or a Judge, as the case may be, about how the thing is to be dealt with.

(7) Nothing in this section prevents or restricts the search of a person or of clothing worn by, or of property under the immediate control of, a person after the person is admitted to a prison after having been arrested for an offence.

(8) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by any other written law.

50.-(1) If a magistrate is informed by affidavit that there are reasonable grounds for suspecting that there may be in a place-

(a) a thing that may be material as evidence in proving an offence for which a provisional arrest warrant was issued or surrender of a person is sought; or

(b) a thing that has been acquired by a person as a result of such an offence,

and the affidavit sets out those grounds, the magistrate may issue a warrant authorising a police officer, with such assistance, and by such force, as is necessary and reasonable-

(e) to enter the place, search the place for a thing of that kind and seize any thing of that kind found in the place.

(a) there has been given to the magistrate by affidavit further information that the magistrate requires about the grounds on which the warrant is being sought; and

(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(a) the purpose for which it is issued, including a reference to the nature of any offence referred to in subsection (1)(a);

(b) whether it authorises entry at any time of the day or night or during specified hours of the day or night;

(d) that it ceases to have effect on a specified day, not being later than 30 days after the date it is issued.

(a) a police officer finds a thing that he or she believes on reasonable grounds to be connected with the offence, the thing is not of a kind stated in the warrant; and

(b) the police officer believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction,

(5) The police officer must retain in safe keeping a thing seized pending any direction from a magistrate or a Judge, as the case may be, about how it is to be dealt with.

(a) place includes a public place, area of water, premises, vessel, aircraft or vehicle in any part of the Fiji Islands;

51.-(1) The Judge may direct that any property seized under section 49 or 50 that-

(a) may provide evidence of an offence for which surrender has been ordered; or

be returned to the country that sought the surrender if a surrender warrant or temporary surrender warrant is issued after extradition proceedings have concluded.

(2) If no surrender warrant has been issued after extradition proceedings have concluded, a magistrate or a Judge, as the case may be, must direct that the property be returned to the person from whom it was seized, unless the magistrate or the Judge is satisfied that the interests of justice in the requesting country require the property to be returned to the requesting country.

52.(1) A police officer may arrest a person without a warrant if the police officer has reasonable grounds for believing that the person has escaped from custody that was authorised under this Act.

(3) Escaping from custody as mentioned in subsection (1) does not constitute an offence.

53.-(1) A police officer may arrest a person who has been remanded on bail under this Act if the police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a condition subject to which bail was granted.

54.-(1) The Minister, after consulting the Minister responsible for Immigration, must give permission to a country (the second country) to transport through the territory of the Fiji Islands a person who has been surrendered to the second country by a third country if-

(a) the second country asked for transit permission before the person entered the Fiji Islands; and

(i) a Commonwealth country, Pacific Islands Forum country or a treaty country; or

(a) a police officer in the Fiji Islands may assist the foreign escort officer escorting the person; and

(b) the person may be held in custody in the Fiji Islands until the persons journey can continue.

(3) If it is necessary to hold the person in custody for more than 24 hours, the person must be brought before a magistrate who may issue a warrant to commit the person to custody.

55. The purpose of this Part is to provide for the extradition of persons to the Fiji Islands.

56.-(1) A person surrendered to the Fiji Islands for an offence against a written law of the Fiji Islands of which the person is accused or of which the person has been convicted must be brought into the Fiji Islands and delivered to the appropriate authorities to be dealt with according to law.

(2) A person surrendered under subsection (1) may be remanded in custody or on bail by a magistrate until the person can be brought to trial.

(a) be detained or tried in the Fiji Islands for an offence that is alleged to have been committed, or was committed, before the person was surrendered, other than-

(ii) another offence (for which the penalty is the same or less) of which the person could be convicted on proof of the conduct constituting the extradition offence; or

(iii) another offence for which the surrendering country consents to the person being detained or tried; or

(b) be detained in the Fiji Islands for surrender to a third country for trial or punishment for an offence that is alleged to have been committed, or was committed, before the person was surrendered to the Fiji Islands,

(c) the country that surrendered the person to the Fiji Islands consents to the person being detained, and tried or surrendered; or

(d) the person has left, or has had the opportunity of leaving the Fiji Islands.

(a) has not completed a custodial sentence in the surrendering country immediately before being surrendered; or

(b) is a person whom the Fiji Islands has undertaken to hold in custody and return to the surrendering country,

(c) must, while travelling to and from, and while in the Fiji Islands, be kept in the custody ordered in writing by the Minister;

(d) may only be tried for an offence for which the person was surrendered; and

(e) after the person has been tried must be returned to the surrendering country.

(a) a person is held in custody only because of an order of the Minister under subsection (1); and

(b) the surrendering country notifies the Fiji Islands that the surrendering country no longer requires the person to be returned,

59.-(1) If the Minister intends to seek a persons extradition to the Fiji Islands, the Minister may, after consulting the Attorney General, authorise in writing the taking of evidence for use in any proceedings for the extradition of the person to the Fiji Islands.

(2) A magistrate may take the evidence of each witness on oath or affirmation and must-

(a) cause the evidence to be reduced to writing and certify as to the taking of the evidence; and

(3) The person in relation to whom the evidence is being taken is not entitled to be represented while the evidence is being taken.

60.-(1) If another country requests the Fiji Islands to take evidence for the purpose of criminal proceedings in that country, the Minister may, after consulting the Attorney General, authorise in writing a magistrate to do so.

(2) The magistrate may take the evidence of each witness on oath or affirmation and must-

(a) cause the evidence to be reduced to writing and certify as to the taking of the evidence; and

(a) a country requests the surrender of a person because of conduct the person engaged in outside the Fiji Islands;

(b) the Judge refuses to order the surrender of the person because of a circumstance listed in subsection (2); and

(c) the person would have committed an offence under a written law of the Fiji Islands if the person had engaged in the conduct, or equivalent conduct, in the Fiji Islands at that time,

(b) on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of his or her race, religion, nationality, political opinions, sex or status;

(c) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment;

(d) the judgment has been given in the persons absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have;

(e) the offence for which surrender has been ordered is punishable by death in the requesting country but not in the Fiji Islands and the requesting country has not given a sufficient undertaking that the penalty either will not be imposed or, if imposed, will not be carried out; or

(f) the person has been sentenced or would be liable to be tried or sentenced in the requesting country by an extraordinary or ad hoc court or tribunal.

(3) For the purpose of the prosecution, the person must be taken to have engaged in the conduct in the Fiji Islands.

(a) considers that there is sufficient evidence in the Fiji Islands to justify prosecuting the person for the offence; and

(5) A person may be prosecuted whether the person engaged in the conduct before or after the commencement of this Act.

although the Director of Public Prosecutions has not given consent under subsection (4).

(a) another country has refused to order that a person be surrendered to the Fiji Islands; but

(b) the country is prepared to prosecute the person for the offence for which the Fiji Islands sought surrender of the person,

the Minister must give the other country all available evidence to enable the other country to prosecute the person.

(ii) the person has been subjected in the requesting country to torture or cruel, inhuman or degrading treatment or punishment; or

(b) a magistrate determines under section 36(2) that a person should not be surrendered because the prison conditions in the requesting country are not substantially equivalent to the minimum standards for imprisonment in the Fiji Islands,

and the requesting country requests that the person be surrendered for the purposes of trial only, a Judge may order the surrender the person to the requesting country, for the purpose of being tried in the requesting country for the offence for which extradition is sought if-

(a) the law of the requesting country permits the transfer of convicted persons to the Fiji Islands;

(b) the Fiji Islands is satisfied that if the person is convicted the person will be returned to the Fiji Islands to serve the sentence imposed; and

(c) the Fiji Islands is satisfied that there is no likelihood that the person will be subjected to torture or cruel, inhuman or degrading treatment or punishment.

64. Notwithstanding the Bail Act, bail under this Act must only be granted under special circumstances.

65. Without prejudice to the provisions of this Act for the right to make other applications, no other application of an interim or interlocutory nature or for any other relief must be made by the person to be extradited except to the High Court within 21 days from the date of the order of a magistrate determining that person is liable to be surrendered.

66. The Minister may make regulations to give effect to the provisions of this Act and in particular-

(a) an Order in Council made under the Extradition Acts 1870 to 1935 that is expressed to extend to the Fiji Islands continues in force in the Fiji Islands; and

(b) the Fiji Islands is taken to have an extradition treaty with a country mentioned in an Order in Council or a successor to that country.

immediately before the commencement of this Act remains in force and is taken to be an extradition treaty for the purpose of this Act.

Anguilla Antigua and Barbuda Bahamas Bangladesh Barbados Belize Bermuda Botswana British Antarctic Territory British Indian Ocean Territory British Virgin Islands Brunei Cameroon Canada Cayman Islands Cyprus Cyprus (Sovereign Base Areas of Akrotiri and Dhekelia) Darussalam Dominica Falkland Islands Ghana Gibraltar Grenada Guyana India Jamaica Kenya Lesotho

Malawi Malaysia Maldives Malta Mauritius Montserrat Mozambique Namibia Nigeria Pakistan Pitcairn Islands St Helena and Dependencies St Kitts and Nevis St Lucia St Vincent and the Grenadines Seychelles Sierra Leone Singapore South Africa South Georgia and South Sandwich Islands Sri Lanka Swaziland Tanzania The Gambia Trinidad and Tobago Turks and Caicos Islands Uganda United Kingdom of Great Britain and Northern Ireland Zambia Zimbabwe

Australia	New Zealand	Samoa
Cook Islands	Nauru	Tonga
Federated States of Micronesia	Niue	Tuvalu
Fiji Islands	Palau	Vanuatu
Kiribati	Papua New Guinea
Marshall Islands	Solomon Islands

An application has been made to me on behalf of [requesting country] for the issue of a provisional warrant for the arrest of [name of person].

I am satisfied, on the basis of the documents produced to me on behalf of [requesting country], that:

(b) [requesting country] intends to make a formal request for the extradition of [name of person]; and

(c) the offence for which the extradition of [name of person] is sought is an extradition offence; and

NOW THEREFORE I, [name and designation of magistrate], under section 9 of the Act authorise and request you to arrest [name of person] and bring him/her before a magistrate in as soon as practicable to be dealt with according to law.

I, [name Judge], have decided under section 18 of the Act that [name of person] is to be surrendered to [requesting country] for the offence of [specify each offence for which the person is to be surrendered].

(a) require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

(b) authorise you to bring [name of handover place in the Fiji Islands] for the purpose of handing [name of person] over to the custody of a person authorised by [requesting country] to escort [name of person] to [requesting country]; and

(c) authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

authorise the foreign escort officer to transport [name of person] out of the Fiji Islands.

I, [name of Judge], have decided under section 20 of the Act that [name of person] is to be surrendered to [requesting country] for the offence of [specify each offence for which the person is to be surrendered].

(b) has not been convicted of the offence(s) for which his/her surrender is sought.

(a) [requesting country] has given an adequate undertaking that [name of person] will be given a speedy trial in [requesting country] and will be returned to the Fiji Islands after the trial; and

(b) adequate provision has been made for [name of person] to travel to [requesting country] and to return to the Fiji Islands.

(a) require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

(b) authorise you to bring [name of person] to [name of handover place in the Fiji Islands] for the purpose of handling [name of person] over to the custody of a person authorised by [requesting country] to escort [name of person] to [requesting country]; and

(c) authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

authorise the foreign escort officer to transport [name of person] out of the Fiji Islands.

I, [name of the Judge], have decided under section 38 of Act that [name of person] is to be surrendered to [Pacific Islands Forum country] for the offence of [specify each offence for which the person is to be surrendered].

(a) order that [name of person] be surrendered to [Pacific Islands country]; and

(b) order that [name of person] be committed to prison until he/she is surrendered to [Pacific Islands country]; and

(c) require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

(d) authorise you to bring [name of person] to [name of handover place in the Fiji Islands] for the purpose of handing [name of person] over to the custody of a person authorised by [Pacific Islands Forum country] to escort [name of person] to [Pacific Islands Forum country]; and

(e) authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

(f) authorise the foreign escort officer to transport [name of person] out of the Fiji Islands.

I, [name of Judge], have decided under section 20 of the Act that [name of person] is to be temporarily surrendered to [Pacific Islands Forum country] for the offence of [specify each offence for which the person is to be surrendered].

(b) has not been convicted of the offence(s) for which his/her surrender is sought.

(a) [Pacific Islands Forum country] has given an adequate undertaking that [name of person] will be given a speedy trial in [Pacific Islands Forum country] and will be returned to the Fiji Islands after the trial; and

(b) adequate provision has been made for [name of person]: to travel to [Pacific Islands Forum country] and to return to the Fiji Islands.

(a) require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

(b) authorise you to bring [name of person] to [name of handover place in the Fiji Islands] for the purpose of handing [name of person] over to the custody of a person authorised by [requesting country] to escort [name of person] to [requesting country]; and

(c) authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and

authorise foreign escort officer to transport [name of person] out of the Fiji Islands.

I, [name of Judge], have decided under section 39 that [name of person] is to be temporarily surrendered to [Pacific Islands Forum country] for the offence of [specify each offence for which the person is to be surrendered].

(b) has not been convicted of the offence(s) for which his/her surrender is sought.

(c) [Pacific Islands Forum country] has given an adequate undertaking that [name of person] will be given a speedy trial in [Pacific Islands Forum country] and will be returned to the Fiji Islands after the trial; and

(d) adequate provision has been made for [name of person] to travel to [Pacific Islands Forum country] and to return to the Fiji Islands.

(e) require any person who has custody of [name of person] to hand the person over to the police officer who has this warrant; and

(f) authorise you to bring [name of person] to [name of handover place in the Fiji Islands] for the purpose of handling [name of person] over to the custody of a person authorised by [Pacific Islands Forum country] to escort [name of person] to [Pacific Islands Forum country]; and

(g) authorise you to hold [name of person] in custody for so long as is necessary to hand him/her over to the foreign escort officer; and authorise the foreign escort officer to transport [name of person] out of the Fiji Islands.

Fiji Sessional Legislation

Extradition Act 2003