Dutton v O'Shane - [2002] NSWSC 1086

No judgment structure available for this case.

CITATION: Dutton v O'Shane [2002] NSWSC 1086

FILE NUMBER(S): SC 13353/2000

HEARING DATE(S): 04/09/01-07/09/01, 26/10/01, 29/10/01, 29/11/01, 19/03/02, 26/03/02, 27/03/02

JUDGMENT DATE: 20 November 2002

PARTIES :

Edward Isaac Dutton (Plaintiff)
Patricia June O'Shane (First Defendant)
The Republic of South Africa (Second Defendant)

JUDGMENT OF: James J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 20029353/99

LOWER COURT
JUDICIAL OFFICER : P O'Shane

COUNSEL : T Game SC/S McNaughton - Plaintiff
P Neil SC/P McDonald - 2nd Defendant

SOLICITORS: Fox & Staniland - Plaintiff
G Drennan - Cth DPP - 2nd Defendant

CATCHWORDS: Extradition - Extradition proceedings before magistrate - review - supporting documents - warrant - dual criminality - extradition objections

LEGISLATION CITED: Extradition Act s 7(a), (b) and (c) s 19, s 21
Banking (Foreign Exchange) Regulations 5, 40, 42

CASES CITED: Republic of South Africa v Dutton (1997) 77 FCR 128
United Mexican States v Cabal (2001) HCA 60, (75 ALJR 1663)
McDade v The United Kingdom (1999) FCA 1868
Pravato v The Governor of the Metropolitan Remand Centre (1986) 8 FCR 358
Cabal & Anor v United Mexican States & Anor (No.3) (2000) 186 ALR 188
Cabal v United Mexican States (2001) 108 FCR 311
Pasini v United Mexican States (2002) HCA 3
Cabal v United Mexican States (No.2) (2000) 172 ALR 43
Warren v Coombes (1978-1979) 142 CLR 531
Timar v Republic of Hungary (1999) FCA 1518
De Bruyn v Republie of South Africa (1999) 96 FCR 290
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Riley vThe Comonwealth (19850 159 CLR 1
Linhart v Elms (1988) 81 ALR 557
Heilbronn v Kendall (775 F.Supp. 1020 (WD Mich 1991))
Brauch v Raiche 618 F.2d 843
Re Collins (No.3) A Crim R 210
R v Webber (1988) 38 A Crim R 210
Dempster v National Companies and Securities Commission (1992-1993) 10 ACSR 297
Rahardja v Republic of Indonesia (2000) FCA 1297
Shabalala v The Attorney-General of the Transvaal (1995) 2 SACR 761
Minister for Immigration and Multi-Cultural Affairs v Singh (2002) HCA 7

DECISION: Determination - plaintiff eligible for surrender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 20 November 2002

13353/00 EDWARD ISAAC DUTTON v THE REPUBLIC OF SOUTH AFRICA & ANOR

JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is an application by the plaintiff Edward Isaac Dutton (“Mr Dutton”) for a review, pursuant to s 21 of the Extradition Act 1988 (Commonwealth) (“the Act”), of orders made on 18 December 2000 by the first defendant Patricia June O’Shane, a magistrate, on the application of the second defendant, the Republic of South Africa. The first defendant submitted to whatever order this Court might see fit to make and the contest on the review has been between Mr Dutton and the Republic of South Africa.

2 The offences for which Mr Dutton’s extradition to South Africa is sought were allegedly committed by him in South Africa, as long ago as between 1986 and 1989. Most of the alleged offences involved the making by Mr Dutton of fraudulent misrepresentations, when companies controlled by him purchased foreign currency under the foreign exchange laws then in force in South Africa.

3 The investigation of the alleged offences commenced in about August 1987 and was initially conducted by officers of the Exchange Control Department of the Reserve Bank of South Africa and particularly Mr Charles Van Staden, the Deputy General Manager of the Exchange Control Department.

4 Subsequently the investigation into the alleged offences was taken over by the South African Police, the investigation by the Police being headed by Mr George Kitching, who from time to time held various ranks in the South African Police. Two members of the accounting firm of Ernst & Young, Mr Sabbagh and Mr Venter, assisted the South African Police in their investigation.

5 On 28 December 1989 Mr Dutton was arrested. In January 1990 the warrant pursuant to which he had been arrested was set aside as being invalid but he was then re-arrested. Subsequently, Mr Dutton was released on bail.

6 An indictment was served on Mr Dutton, charging him with fourteen counts of fraud and fourteen counts of forgery. Later he was served with an indictment in which he was charged only with the fourteen counts of fraud.

7 On 27 January 1992 a trial of Mr Dutton on the fourteen counts of fraud commenced in the Supreme Court (or High Court) of South Africa (Witwatersrand Local Division) before his Honour Judge Streicher. Mr James William Seale de Villiers was the leader of the prosecution team at the trial. For most of the trial Mr Dutton was unrepresented and conducted his own defence.

8 The presentation of the prosecution case at the trial took almost two years. Eventually, at the end of 1993, the prosecution closed its case. Mr Dutton then began giving evidence in his own case. On 7 February 1994, while he was under cross-examination, Mr Dutton, who had continued to be at liberty on bail, failed to appear at court and a warrant was issued for his arrest. The warrant contained recitals, the first of which was that Mr Dutton had been charged with the crime of fraud. There was no further specification in the warrant, as originally issued, of the offences with which Mr Dutton had been charged.

9 In 1995 the South African authorities discovered that Mr Dutton had gone to Australia and was living in Australia under a false name. For the purpose of the making of a request that Mr Dutton be extradited from Australia, Mr de Villiers requested Judge Streicher to amend the warrant which had been issued by adding the words and figures “(14 counts)” after the word “fraud” in the first recital in the warrant and Judge Streicher complied.

10 On 3 October 1995 the Republic of South Africa made a request for the extradition of Mr Dutton from Australia and on 4 October 1995 a warrant for the arrest of Mr Dutton was issued pursuant to s 12 of the Act. On 24 November 1995 Mr Dutton was arrested and taken into custody.

11 On 18 November 1996 proceedings under s 19 of the Act to determine whether Mr Dutton was eligible for surrender commenced before a magistrate. In these proceedings the magistrate held that the Evidence Act 1995 (New South Wales) applied to the proceedings and that much of the evidence sought to be relied on by the Republic of South Africa to satisfy the “sufficient evidence test” under s 11(5) of the Act was inadmissible. The magistrate then held that, on such evidence as was admissible before her, the sufficient evidence test was not satisfied and that, consequently, Mr Dutton was not eligible for surrender and the magistrate thereupon ordered that Mr Dutton be released from custody.

12 The Republic of South Africa applied to the Federal Court for a review of the orders made by the magistrate. Hill J, before whom the application for review came, decided that four questions of a procedural nature should be separately determined, in advance of a full hearing of the review. In a judgment given on 1 August 1997, which has been reported (Republic of South Africa v Dutton (1997) 77 FCR 128) Hill J determined these questions. An application was made for leave to appeal to the Full Court of the Federal Court from Hill J’s decision. However, after the magistrate gave her decision, regulations were made which removed the need for the Republic of South Africa to satisfy the sufficient evidence test in an application for extradition made by it and the Republic of South Africa decided to make a fresh request for the extradition of Mr Dutton.

13 On 2 January 1998 the Republic of South Africa made another request for the extradition of Mr Dutton. On 6 February 1998 a magistrate issued a warrant for the arrest of Mr Dutton and on 17 February 1998 Mr Dutton was arrested. On 5 March 1998 he was granted bail and he was released on bail on 14 March.

14 In March 1998 the application by the Republic of South Africa for a review of the orders made by the magistrate in respect of the first extradition request was dismissed, on the application of the Republic of South Africa.

15 On 29 July 1999 the extradition proceedings pursuant to the request made on 2 January 1998 first came before the first defendant and they subsequently came before her on a number of occasions. The actual hearing of the application for extradition, as distinct from mentions or argument about the admissibility of evidence and matters of procedure, commenced on 6 November 2000 and continued until 1 December 2000, when the first defendant reserved her decision. On 18 December 2000 the first defendant gave her reserved decision, holding that Mr Dutton was eligible for surrender and making consequential orders. Mr Dutton, who had been at liberty on bail since 14 March 1998, was taken into custody.

16 On 20 December 2000 Mr Dutton filed a summons in this Court, claiming a review of the orders made by the first defendant on 18 December 2000.

17 Mr Dutton made a prompt application that he be granted bail pending the hearing of his application for review. His application for bail was heard and determined by Howie J of this Court. On 21 February 2001 Howie J refused the application for bail, on the grounds that he was not persuaded that there were “special circumstances”, as required by s 21(6)(f)(iv) of the Act, justifying a grant of bail.

18 The hearing of Mr Dutton’s application for a review of the orders made by the first defendant came before me for hearing on 4 September 2001. Mr Dutton was represented by senior counsel, as was the Republic of South Africa.

19 Towards the end of that week in September 2001 it became apparent that the period of four days which had been allocated for the hearing of the review was quite inadequate for that purpose and it was inevitable that the hearing of the review would have to be adjourned. Furthermore, on 6 September 2001 the Republic of South Africa served further written submissions, which Mr Dutton’s legal advisers would require further time to consider. The further hearing of the review was adjourned to 3 December 2001.

20 On 7 September 2001 counsel for Mr Dutton made a further application that Mr Dutton be granted bail. The hearing of the bail application itself became protracted, continuing on 7 September 2001, 21 September 2001, 5 October 2001 and 2 November 2001.

21 On 24 October 2001 the High Court of Australia handed down its decision in United Mexican States v Cabal (2001) HCA 60, (75 A.L.J.R 1663) in which the High Court held that the circumstances which will amount to special circumstances within s 21(6)(f)(iv) of the Act, so as to justify a grant of bail, are very limited. After the High Court handed down its decision counsel for Mr Dutton on 2 November 2001 withdrew Mr Dutton’s application for bail and consequently Mr Dutton remained in custody.

22 On 29 November 2001, on the application of Mr Dutton, who appeared in person, and over the opposition of the Republic of South Africa, I made an order vacating the hearing date for the review which had been fixed for 3 December. The principal basis of Mr Dutton’s application to vacate the hearing date was that Mr Dutton wished to have further time in which to sell a house so as to obtain funds to pay for legal representation.

23 The further hearing of the application for a review took place on 26 March and 27 March 2002. On 27 March 2002 I directed that further written submissions should be lodged and written submissions were subsequently received by me.

24 I am very conscious of the delay which has occurred in the preparation and handing down of this judgment, particularly when Mr Dutton has been in custody. The principal reason for the delay is that for almost all of the period since 27 March I have been required to conduct heavy criminal trials, without any time out of Court in which properly to consider the voluminous evidence and the many submissions in this case.

25 It is convenient, before proceeding further, to set out the provisions of ss 19 and 21 of the Act.

“ Determination of eligibility for surrender

19. (1) Where:

(a) a person is on remand under section 15;

(b) the Attorney-General has given a notice under subsection 16 (1) in relation to the person;

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

(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

(2) For the purpose of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been produced to the magistrate;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents – those documents have been produced to the magistrate;

(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(3) In paragraph (2) (a), “supporting documents”, in relation to an extradition offence, means:

(a) if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

(b) if the offence is an offence of which the person has been convicted – such duly authenticated documents as provide evidence of:

(4) Where, in the proceedings:

(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b) the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.

(5) In the proceedings, the person to whom the proceedings relate 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 constituting an extradition offence for which the surrender of the person is sought.

(6) Subject to subsection (50, any document that is duly authenticated is admissible in the proceedings.

(7) A document that is sought by or on behalf of a an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5);

(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek or review of the order under subsection 21(1); and

(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

(a) order that the person be released; and

. . .

Review of magistrate’s orders

21 . (1) Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a) in the case of an order under subsection 19(9) – the person; or

(b) in the case of an order under subsection 19(10) – the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2) The Court may, by order:

(a) confirm the order of the magistrate; or

(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the federal Court from the order of the Federal Court or the supreme Court.

(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.

(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

(6) Where the person or the extradition country:

(a) applies under subsection (1) for a review of an order;

(b) appeals under subsection (3) against an order made on that review; or

(c) appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released – the court to which the application or appeal is made may order the arrest of the person;

until the review has been conducted or the appeal has been heard;

26 Later in this judgment I will be referring to other sections of the Act.

27 The evidence before the magistrate was voluminous and occupies many volumes of the Review Books prepared for this review. I will refer, fairly briefly, to some of the evidence.

28 Exhibit 1 in the proceedings before the magistrate was the request by the Republic of South Africa dated 2 January 1998 for the extradition of Mr Dutton. Exhibit 1 is approximately 150 pages long.

29 The request includes a certificate by Mogamat Nizaam Hendricks, the Director of the Department of Justice of the Republic of South Africa. In this certificate Mr Hendricks certified that the documents annexed to the certificate and marked “X1”, “X2” and “X3” were tendered in support of a request for extradition and had been signed by David Johannes Phillippus Scholtz, the Registrar of the High Court of South Africa Witwatersrand Local Division.

30 In the document marked as annexure “X1” to Mr Hendricks’ certificate Mr Scholtz certified that he was the Registrar of the High Court of the Witwatersrand Local Division, that an affidavit by Andries Petrus de Vries attached to Mr Scholtz’s certificate had been sworn before Mr Scholtz, that an arrest warrant attached to the affidavit of Mr de Vries was a true copy of the original warrant issued by Judge Streicher which had been signed by Judge Streicher, that an affidavit by Mr de Villiers attached to Mr Scholtz’s certificate had been sworn before Mr Scholtz, that a copy of an indictment attached to Mr de Vries’ affidavit was a true copy of the indictment in the South African trial of Mr Dutton and that Mr Scholtz had affixed the stamp and seal of the Witwatersrand Local Division of the High Court on the affidavits of Mr de Vries and Mr de Villiers.

31 The document marked as annexure “X2” to Mr Hendricks’ certificate (which was also an attachment to Mr Scholtz’s certificate) was an affidavit by Mr de Vries. In his affidavit Mr de Vries said that he had held various positions within the South African Department of Justice and that the prosecution of Mr Dutton for the alleged offences came within his exclusive jurisdiction.

32 In paragraph 5 of his affidavit Mr de Vries gave expert evidence about the elements of the crime of fraud under South African law. Annexure “A” to Mr de Vries’ affidavit was a long extract from a South African criminal law text relating to the offence of fraud.

33 In paragraph 6 of his affidavit Mr de Vries discussed the penalty which might be imposed on a person convicted of fraud. He expressed the opinion that it was highly unlikely that a sentence of less than twelve months imprisonment would be imposed for offences as serious as those set out in the indictment presented against Mr Dutton.

34 Annexure “B” to Mr de Vries’ affidavit was a copy of the indictment which had been presented against Mr Dutton. The copy of the indictment in one of the Review Books occupies nearly sixty pages and I will not attempt to do more than give a brief outline of the nature of the charges in the various counts in the indictment.

35 In a preamble in the indictment it was alleged that the accused controlled the South African companies E Dutton Holdings Pty Limited (“EDH”) Interboard S A, Interboard Limited and Board World Pty Limited (“Board World”) and that he controlled an overseas trust which controlled the overseas companies Interboard Holdings BV, Interboard NANV, Partic Industrial Company Limited (“Partic”) and Ligneus Processing and Engineering Company Limited (“Ligneus”).

36 In counts 1 to 7 inclusive of the indictment, which were not pleaded individually, it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa or its agent that Board World had purchased plant from Partic and owed foreign currency to Partic for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to provide foreign currency, whereas in fact Board World had not purchased any plant from Partic and did not owe any foreign currency to Partic.

37 In count 8 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa or its agent, that Board World had entered into a contract with Ligneus for the purchase of an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to provide foreign currency, whereas in fact there was no genuine contract and Board World did not owe any foreign currency to Ligneus.

38 The pleading of count 9 was more involved but, basically, it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to a South African bank, the First National Bank of Southern Africa, that Board World had entered into a contract with Partic for the purchase of an item of plant and owed foreign currency to Partic and had thereby induced the First National Bank of Southern Africa to provide foreign currency, whereas in fact Board World had not entered into any contract with Partic and did not owe any foreign currency to Partic but had purchased the item of plant in question from a different company at a different, lower, price.

39 In count 10 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to another South African bank, the International Bank of Johannesburg, that EDH had entered into a contract with Ligneus to purchase an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the International Bank of Johannesburg to provide foreign currency, whereas in fact there was no genuine contract between EDH and Ligneus and EDH did not owe any foreign currency to Ligneus.

40 In count 11 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the First National Bank of Southern Africa and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs, whereas in fact EDH was not under any such obligation. In count 11 it was alleged that the First National Bank of Southern Africa was induced by the false representation to believe that EDH was under an obligation to Partic but it was not alleged that any foreign currency was actually provided.

41 In count 12 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the International Bank of Johannesburg and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs and had thereby induced the International Bank of Johannesburg to provide foreign currency, whereas in fact EDH was not under any such obligation.

42 The offence alleged in count 13 in the indictment was rather different from the offences alleged in the preceding counts in the indictment. In count 13 it was alleged that Mr Dutton falsely represented to the Standard Bank of South Africa that the costs up to two specified dates of plant at a factory owned by one of Mr Dutton’s companies were certain figures, that the value placed on the plant was fair and the plant was new and unused and that EDH had entered into a contract with Partic for the purchase of an item of plant, and that Mr Dutton had thereby induced the Standard Bank of South Africa to purchase the plant at a certain figure and lease it to Interboard SA, whereas in fact the figures for the costs of the plant up to the specified dates were falsely and grossly inflated, the value placed on the plant was not fair and the plant was not new and unused and the purported contract with Partic was forged or fabricated.

43 The offence alleged in count 14 in the indictment was also rather different from the offences alleged in the preceding counts in the indictment. In count 14 it was alleged that Mr Dutton falsely represented to the First National Bank of Southern Africa that a share certificate for shares in Interboard was a certificate for a new issue of shares, that documentation verifying that the issue was a new issue was not yet available due to a delay in the typing pool at the Johannesburg Stock Exchange and that the reason for the new issue was that Interboard wished to settle a debt it owed to EDH and that Mr Dutton had thereby induced the First National Bank of Southern Africa to release financial rand from an account of Interboard NANV at one of its branches.

44 In the concluding part of the indictment there is a “summary of substantial facts”, which was in the following terms:

“ Summary of Substantial Facts

Counts 1 - 7

During the early part of 1986 the accused explained to Peter Southey, the general manager of the Alrode Branch of Nedbank Limited, that he intended to import plant similar to that situated at the Wadeville factory of Interboard SA.

The accused subsequently presented Nedbank with documentation purporting that Board World had purchased plant and/or parts thereto.

On the strength of the representations made to Nedbank Limited, foreign currency … was sold to Board World and remitted to Partic. An amount of $16,534,247-00 (approximately R37,312,555) was remitted in this way.

No plant and/or parts therefore was imported in respect of the said remittances for or on Board World’s behalf.

Count 8

On or about 21 July 1988 the accused presented Nedbank with a forged letter dated 6 June 1988 purportedly from Ligneus to Board World as well as a forged ‘quotation and if successful, agreement’ enclosed to the said letter purporting to relate to a Hot Laminating plant.

The accused also presented a letter to Nedbank dated 4 July 1988 and signed by himself on behalf of Board World and addressed to Ligneus purportedly accepting the ‘quotation’ for the supply of ‘One Complete Single Daylight Short Cycle Hot Laminating Plant’.

Nedbank then sold $4,448,114-00 (R10,833,454-71) to Board World and remitted the said amount to Ligneus in respect of the aforementioned plant on the strength of the ‘agreement’ presented to Nedbank Limited.

At no stage did Board World purchase a Single Daylight Short Cycle Hot Laminating Plant from Ligneus and/or imported same into the Republic of South Africa.

Count 9

During or about the period May 1987 to December 1988 the accused approached First National Bank of Southern Africa Limited.

He presented them with one or more of the documents referred to in the preamble to count 9.

inter alia

No MDF-plant was ever purchased from Partic and/or imported into the Republic of South Africa by EDH.

On instruction of the accused Ligneus purchased Lotos VII and VIII and the sanding line for an amount of D.M. 2,500,000-00 (approximately R3,300,000-00) from a company NV Spano, a particle board manufacturing company in Belgium.

Lotos VII and VIII and the sanding line were shipped to South Africa during the second half of 1988, beginning 1989. Only Lotus VII and the sanding line was erected at George and Lotus VIII remained in its packing crates at the same premises where Lotos VII was erected.

Lotos VII and the sanding line were commissioned and came into production during 1989.

Count 10

On or about the dates mentioned in column 1 of Annexure “C” the accused presented a forged and/or fabricated contract for the purchase of a ‘Process Line for the Manufacture of High Quality Chipboard with Fine Surface’ and sanding line to the International Bank of Johannesburg Limited. According to the contract EDH had entered into an agreement with Ligneus on 1 November 1988 for the purchase of the said plant for an amount of $25,895,000 (approximately R60,6000,867).

Inter alia

Count 11 and 12

via

Approval was sought from the Reserve Bank by First National Bank of Southern Africa Limited to remit the said amount on behalf of EDH. The Reserve Bank, however, was unwilling to grant permission for the remittance of the said amount without the necessary documentary proof in support of the application.

The accused personally and/or through John Dutton also applied to the International Bank of Johannesburg Limited on or about 2 December 1988 for the remittance of the said amount. The said amount was hereafter remitted to Partic on 6 December 1988.

Count 13

Towards the end of 1988 the accused personally and/or through John Dutton sought to obtain an amount of money from Standard Bank.

After negotiations it was decided to enter into a lease agreement which entailed the purchasing of the particle board plant situated at George by Standard Bank from Interboard S.A. and leasing it back to the said company.

inter alia

Standard Bank also required confirmation to the effect that the value of the equipment being purchased was fair and that the plant was new and unused.

The accused either personally and/or through John Dutton duly complied with these requests and a ‘Progress Certificate no 1’ dated 30 November 1988, comprising the various parts of the plant and the expenses purportedly incurred in respect of each part, was forwarded to the George factory of Interboard SA where it was signed by one Basil Edgar Mullon, an employee of Interboard SA, and returned to the offices of Interboard Limited. This certificate reflected the purchase price and/or costs incurred in respect of the particle board plant situated at George to be R32,825,065-00.

A ‘final progress certificate no 2’ dated 31 January 1988 (this appears to be typing error and should have read 1989), also comprising the various parts of the said plant and the expenses purportedly incurred in respect of each part, was also forwarded to the George factory where it was signed by the said Mullon and returned to the offices of Interboard Limited. This certificate reflected the purchase price and/or costs incurred in respect of the particle board plant situated at George to be R35,465,750-00.

These progress certificates were forwarded to Standard Bank.

In a letter dated 14 December 1988 and addressed to Standard Bank, the accused and John Dutton, signing on behalf of one Derrick Brindle, informed the said bank that the value of the equipment being financed was fair and that the plant was new and unused.

The accused, and/or the accused acting through John Dutton, also misrepresented to Standard Bank that EDH had entered into an agreement with Partic on 27 May 1987 for the purchase of the Lotos-plant, referred to in the preamble to count 9, for an amount and/or to the value of $27,310,000-00; and/or that EDH had been obliged to remit to Partic the amounts stipulated in column 2 of Annexure “B”.

The said lease agreement was concluded on 14 December 1988 and an amount of R38,298,026-00 made available to EDH.

Count 14

On or about 26 January 1989 one Ann Brown (neè Watt), acting on instruction of the accused, requested Central Registrars Limited to split share certificate No. 8464 and to issue two new certificates and not to endorse them with ‘non-resident’ stamps. Share certificate no 8464 was for 1,164,000 shares and was previously issued by Interboard Limited reflecting the registered holder as Interboard Holdings BV. Share certificate no. 8464 was endorsed with a ‘non-resident’ stamp.

Share certificate no 8464 was split into two certificates, to wit:

These share certificates were not endorsed ‘non-resident’ as requested and were handed to the accused.

Armed with share certificate no 8471 the accused proceeded to First National Bank of Southern Africa Limited where he made the misrepresentations…

As a result of the misrepresentations the amounts of financial rand mentioned in column 2 of Annexure “D” was released to the accused”.

45 In annexures to the indictment there are particulars of dates and amounts and a list of the witnesses proposed to be called at the trial by the prosecution.

46 In paragraph 8 of his affidavit Mr de Vries said that a document annexed to his affidavit and marked “C” was “a… copy of the original warrant issued by Judge Streicher”.

47 In paragraph 10 of his affidavit Mr de Vries on behalf of the Republic of South Africa formally requested that Mr Dutton, having been indicted in the Witwatersrand Local Division of the High Court on 14 counts of fraud as set out in the indictment, be returned to the Republic of South Africa.

48 In his affidavit Mr de Villiers said that he was a Deputy Attorney-General employed by the Department of Justice and that he was attached to the Office for Serious Economic Offences. In his affidavit Mr de Villiers said that “having prepared the indictment from the available evidence and having led the prosecution team, I am familiar with the evidential material available against Dutton”.

49 At pages 6-14 of his affidavit Mr de Villiers dealt with the subject of South African exchange control and I will quote what he said:-

“ South African Exchange Control

(a) At all material times South Africa regulated its foreign exchange dealings. Up until 13 March 1995 an integral part of its regulatory regime was a system of dual exchange rates. One exchange rate was known as the commercial rand rate while the second rate was known as the financial rand rate. Which exchange rate applied depended on the purpose or origin of the transaction. Generally South African residents were only able to deal in commercial rand while financial rand were available to non-residents of South Africa. A resident is defined as a natural or legal person and, therefore, includes corporations incorporated in South Africa or the relevant country in the Common Monetary Area (“CMA”)...

(b) The financial rand exchange rate was always at a lower rate than the commercial rand rate, i.e US $1.00would purchase more financial rand than commercial rand. Because of the differential between the two rates, if a person bought foreign currency using commercial rand and then was able to convert the foreign currency back into rand at the financial rand rate, he would make a profit.

(c) Where a non-resident had purchased assets in South Africa, when those assets were sold the proceeds could only be converted into foreign currency using the financial rand exchange rate. It was an offence to convert rand acquired from the sale of such assets into foreign currency at the commercial rand rate. (As non-residents were allowed to purchase assets in South Africa at the financial rand rate, they also had to sell the said assets at the same rate).

(d) The exchange control regulations also restricted the ability of South African residents to acquire and export foreign currency. The approval of the South African Reserve Bank or an Authorised Dealer in foreign exchange (which were Banks appointed by the Minister of Finance) had to be obtained before a South African resident could acquire foreign currency and export it from South Africa. Reserve Bank approval could be obtained where a South African resident required foreign currency for the purpose of purchasing capital equipment (plant) from a foreign supplier. It was an offence to export funds from South Africa without the approval of the Reserve Bank or an Authorised Dealer in foreign exchange.

(e) The Reserve Bank is a legal person which was originally established by section 9 of the Currency and Banking Act, 1920 (Act 31 of 1920), previously governed by the South African Reserve Bank Act, 1944 (Act 29 of 1944) and since August 1989 governed by the South African Reserve Bank Act (Act 90 of 1989). Pursuant to a delegation by the Minister of Finance the Reserve Bank is responsible for the day to day management of the exchange control regulations. The South African Exchange Control Regulations, Orders and Rules provide amongst other that control over South Africa’s foreign currency holdings, accruals and spending thereof is vested in the Treasury. The regulations define the Treasury as the Minister of Finance.

(f) The Minister has appointed certain Banks to act as Authorised Dealers. This appointment gives these Banks the right to buy and sell foreign currency, but only under conditions prescribed by the Treasury. This appointment enables the banks concerned to dispose of the bulk of their customers’ day to day commercial and financial transactions involving foreign currency under conditions and within limits as prescribed by the South African Reserve Bank. Transactions falling outside these prescribed parameters have to be referred to the South African Reserve Bank for consideration.

(g) Only some branches of the Authorised Dealer Banks referred to above were appointed to deal in Financial Rand. In this narrower sense these banks are hereafter referred to as ‘authorised banks’. The financial rand system was abolished by South Africa on 13 March 1995. The rest of the Regulations, Orders and Rules, as amended from time to time, remained in place.

(h) The financial rand system also extended to some of the South African neighbouring states including Transkei and Swaziland. The CMA consisted of the Republic of South Africa (including Transkei, Bophuthatswana, Venda and the Ciskei – the so-called TBVC states), Lesotho, Namibia and Swaziland. In terms of an agreement between the then Ministers of Finance of the countries concerned, there were no trade and foreign exchange restrictions between the members of the CMA and they formed a single exchange control territory. Although each of the other member countries had its own exchange control authorities, as well as its own Acts or Regulations and Rulings, their application of exchange control had to be, in terms of the Common Monetary Area Agreement, at least as strict as that of South Africa. Accordingly, investments and transfers of funds or goods from South Africa to the other CMA countries did not require the approval of the Exchange Control Department of the Reserve Bank of South Africa. However, investments into the other CMA countries by non-residents through the financial rand system all had to be approved by the Exchange Control Department of the South African Reserve Bank, with the concurrence of the Exchange Control authority of the relevant country concerned.

(i) The banks used by Dutton to remit foreign currency abroad or used to cause financial rand to be released were authorised banks.

(j)(i) The fact that the foreign currency that was purchased in South Africa was exported abroad, round-tripped and then later used to procure financial rand does not mean that the foreign currency exported abroad was received back in South Africa to form part of the country’s foreign currency reserves.

(ii) The Exchange Control Regulations, inter alia , provide that the Treasury from time to time prescribe the manner in which payment may or may not be made in connection with transactions involving payments between residents and non-residents of South Africa.

(iii) The rand proceeds of South African assets owned by persons resident outside the Republic and/or rand funds so designated by the Treasury were credited to a rand account which was designated a financial rand account.

(iv) Such rand balances held in a financial rand account were subject to the conditions and restrictions outlined in the Exchange Control Regulations read with the Exchange Control Rulings and the Securities Control Notices, and were defined as ‘financial rand’.

(v) Financial rand was not a separate monetary unit but represented rand which were held in a financial rand account, which rand balances were subject to certain specific conditions and restrictions.

(vi) One of the restrictions applicable to rand balances held in financial rand account was that it could not be exchanged into a foreign currency at a loss to South Africa’s foreign currency reserves. (It was blocked).

(vii) Another restriction applicable to rand balances held in a financial rand account was that it could not have been transferred to an account which was without such restrictions unless prior Exchange Control approval was obtained. (In practice the last mentioned accounts were at times referred to as free rand accounts, normal rand accounts or commercial rand accounts).

(viii) When a non-resident purchased a financial rand balance he did so from another non-resident (who already owned a financial rand balance) by the payment abroad of foreign currency to such other non-resident. As a result of the restrictions and conditions applicable to rand balances held in a financial rand account, non-residents were only prepared to purchase such rand balances at a discount. This discount created the difference when a financial rand balance was quoted against a foreign currency in contrast to a quotation between a rand balance without such restrictions or conditions and a foreign currency. (In practice people referred to the ‘financial rand/foreign currency’ rate as opposed to the ‘commercial rand/foreign currency’ rate).

(ix) When a non-resident sold a financial rand balance to another non-resident, he received payment abroad in foreign currency from such other non-resident. The financial rand balance was then merely transferred in South Africa to a financial rand account in the name of the non-resident buyer. No transfer of foreign currency into or out of the Republic then took place and the country’s foreign currency reserves were therefore not affected. During July 1988 Authorised Dealers in foreign currency were permitted to deal in financial rand for own account and as principals, thereby facilitating the buying and selling of financial rand balances by non-residents. Before that Authorised Dealers in foreign currency acted as agents between two non-residents. In order to buy financial rands the non-resident had to either go to a broker abroad or an Authorised Dealer in South Africa to assist in finding a non-resident holder of financial rand before a purchase could be made.

(x) No South African resident was permitted, in terms of the Exchange Control Regulations to inter alia purchase a financial rand balance without prior Exchange Control approval.

(xi) The rand deposited into a Financial Rand account formed part of the particular Bank’s holding of rand payable to depositors. The control, restrictions and conditions were placed over the rand balance held in a financial rand account.

(xii) The exportation of foreign reserves by residents of South Africa at the commercial rand rate of exchange on bogus transactions, then round-tripped, and released at the financial rand rate of exchange resulted in a direct loss of South Africa’s foreign reserves, as foreign currency so round-tripped was not returned to South Africa as foreign currency into its reserves but absorbed as financial rand into the financial rand pool. The South African people then also suffered prejudice when the above happened in that South Africa then had less foreign currency reserves to pay for imports or service foreign debts on behalf of its people. The South African public was prejudiced in that the loss of foreign currency not only made their country poorer but adversely affected the inflation rate”.

50 At pages 14-18 of his affidavit Mr de Villiers gave an “outline of (the) alleged fraud” and I will quote what he said:-

“ Outline of Alleged Fraud

(a) It is alleged that Dutton defrauded the Republic of South Africa and others by making false representations in relation to dealings between the South African companies he controlled and the foreign companies under his control. The representations were made to South African banking officials to enable him to circumvent South Africa’s exchange controls and thereby to profit through the commission of the alleged offences. Essentially Dutton would represent to an authorised bank that one of the South African companies under his control had contracted with one of the foreign companies whereby the South African company had contracted to purchase capital equipment (plant) from the foreign company. This allowed Dutton to convert rand into foreign currency at the commercial rate of exchange and export the foreign currency from South Africa.

(b) Dutton would then have the foreign currency laundered through a number of the overseas companies in his control before having it returned to one of the South African companies. The funds were then returned to South Africa in such a way that would allow the South African company receiving the funds to have it released into rand at the financial rand rate. Where the financial rand were released into a private company (i.e. Interboard SA) Reserve Bank approval had to be obtained. (This is relevant to counts 1-5 as Interboard Limited had not been incorporated as yet at the time of these offences). To obtain Reserve Bank approval it was then also necessary for Dutton to specify on behalf of the overseas company what the financial rand would be used for. Dutton sometimes misrepresented to the bank that the introduction of the financial rand was funding by the foreign corporation for the acquisition of plant (capital equipment) by the local corporation.

(c) Where the financial rand were to be released into a public company Reserve Bank approval was not required. The Reserve Bank however monitored the introduction of financial rand through the authorised banks who had to ensure that the introduction of the funds by the foreign company was based on arms length dealings and against an investment (i.e. shares or other specified assets) into the local listed company by the overseas company.

(d) In introducing financial rand on behalf of Interboard NANV or Interboard BV caused the officials of the authorised banks to believe that the release of financial rand was as a result of arms length dealings between the overseas investor company and the local companies under his control and for investment purposes. It was however not always introduced on an arms length basis. The funds returned and introduced as financial rand originated in the first place from Dutton’s alleged activities in remitting foreign currency abroad based on misrepresentations, laundered through overseas banking accounts to prevent the discovery of its true origin and were then sometimes released based on sham transactions or further misrepresentations to authorised dealers as is demonstrated infra .

(e) Dutton failed to disclose to the Reserve Bank or the authorised banks that the financial rand sought to be released had been purchased with foreign currency acquired illegally in South Africa which had subsequently been laundered through the bank accounts of several overseas entities under his control. If the true relationship between the corporations involved and the original source of the funds had been disclosed bank approval could not have been obtained to release the financial rand.

(f) By acquiring foreign currency at the commercial rand rate, then having the funds returned to South Africa and converted back into rand at the financial rand rate, Dutton and the local companies were able to make substantial profits at the expense of the South African Government’s foreign currency reserves and the South African people.

(g) Dutton’s actions in a number of instances also prejudiced the minority shareholders of Interboard Limited as the funds were sometimes returned to South Africa to be used to purchase newly issued shares in Interboard Limited. This diluted the minority shareholder’s percentage holding in Interboard Limited. As their shareholding percentage was diluted vis-à-vis that of the majority shareholder (i.e. Interboard BV), the minority shareholders’ voting power was adversely affected and the stake of their asset holding in Interboard Limited decreased in the event of the liquidation of Interboard Limited”.

51 In the rest of his affidavit Mr de Villiers set out “statements of acts and omissions”, that is a statement, in considerable detail, of the facts relating to each of the counts in the indictment.

52 Many affidavits were filed in the proceedings before the first defendant. I will specifically refer only to some of them.

53 The principal affidavit by Mr Dutton was an affidavit of 19 October 1999. The body of the affidavit and the annexures to it occupy pages 172-424 of the Review Books prepared for the review. Statements by Mr Dutton about specific subject matters were annexed to the affidavit as follows:-

A. The history of E Dutton Holdings “(EDH)” up to March 1989.

B. History of Interboard and the market it operated in and its competitors.

D. Local elections against the National Party and the administration of Linbro Park.

E. The action by the National Party Government through the agency of the Exchange Control Department of the South African Reserve Bank in 1987 and 1988.

F. Exchange Control (in South Africa).

G. The period from the attachment by the South African Reserve Bank on 3 March 1989 “and covering the unlawful arrest and detention on 27 November 1989 (sic) to the completion of the destruction of my political platform and business interests in February 1991”.

54 Annexure C to Mr Dutton’s affidavit consisted of the terms of the “Corporate Mission” (that is a statement of the objectives of Mr Dutton’s companies, which was displayed at the companies’ premises and set out in the companies’ reports).

Further annexures to Mr Dutton’s affidavit of 19 October 1999 included:-

I. A letter of request from the Registrar of the Supreme Court of South Africa that the evidence of certain witnesses in the trial of Mr Dutton be taken before a Commissioner in London, an order by a Master of a British Court dated 27 March 1992 that evidence be taken on commission and a subsequent order dated 3 April 1992, setting aside the order of 27 March.

J. A letter dated 13 October 1995 from an Australian Government lawyer to the office of the Attorney-General of the Witwatersrand Local Division concerning the first extradition request.

K. A letter from Mr Dutton of 17August 1996 to Archbishop Tutu in his capacity as chairman of the South African Truth and Reconciliation Commission and a letter by Mr Dutton of 3 October 1996 to the South African High Commissioner in Australia, together with subsequent related correspondence.

55 Affidavits by other persons filed on behalf of Mr Dutton included affidavits by:-

(i) Johannes Matthys Strydom. In his affidavit Mr Strydom said that he had been a journalist for many years and that he had researched and written articles about the Afrikaner Broederbond, which he said was a secret and powerful organisation to which many political figures and other persons in South Africa belonged.

(ii) Bartholomew (Barry) Dutton, a brother of Mr Dutton.

(iii) Lionel Coyle-Dowling, the sales manager of another company in South Africa which manufactured particle board.

(iv) Mohamed Junaid Husain, a South African lawyer, who had acted as a lawyer for Mr Dutton from the early 1980’s to the early 1990’s.

56 Other evidence tendered on behalf of Mr Dutton and admitted by the magistrate included extracts from a book “Judging the Judges Judging Ourselves Truth Reconciliation and the Apartheid Legal Order” by David Dyzenhaus; extracts from a book Broederbond: The Super Afrikaners by Ivor Wilkins and Hans (Johannes) Strydom, including a list of members of the Broederbond; and some transcripts of proceedings in the South African Truth and Reconciliation Commission.

57 Affidavits were filed on behalf of the Republic of South Africa in response to the affidavits by Mr Dutton and his witnesses. These affidavits included affidavits by Mr de Villiers, Mr Van Staden, Mr Kitching and Mr Venter. In their affidavits these deponents denied many of the allegations Mr Dutton had made in his affidavit and some of the allegations made in their affidavits by his witnesses.

58 In the proceedings before the first defendant counsel for Mr Dutton sought to rely on a number of further affidavits by Mr Dutton sworn on 18 September 2000, 22 September 2000, 23 October 2000 and 30 October 2000. One feature of these affidavits was that a number of affidavits by persons other than Mr Dutton were annexed to an affidavit by Mr Dutton.

59 Counsel for the Republic of South Africa made a number of objections to these affidavits, on grounds including that they were not properly affidavits in reply and had not been filed within the time allowed in directions given by the first defendant and their admission would cause serious prejudice to the Republic of South Africa. Many parts of these affidavits by Mr Dutton, including annexed affidavits by persons other than Mr Dutton, were rejected by the first defendant.

60 A large number of documents tendered by one or other of the parties were admitted into evidence by the first defendant. However, a considerable number of documents tendered on behalf of Mr Dutton were not admitted by the first defendant.

61 There was extensive argument before the magistrate about the admissibility of affidavits or parts of affidavits or of documents, which one party or the other sought to have admitted into evidence. A whole volume of the Review Books (volume 12) consists of written objections to evidence which were taken before the first defendant and written submissions made to the first defendant supporting or opposing the evidence being admitted. Another volume of the Review Books (volume 13) consists principally of transcripts of oral argument before the first defendant relating to the admissibility of evidence.

62 In some cases where the first defendant refused to admit a document which had been proffered or tendered, she had the document marked for identification. In other cases a document which had been proffered or tendered but which was not admitted was not marked for identification. Volume 18 of the Review Books contains copies of documents which were tendered before the first defendant and not admitted by her and which were marked for identification and copies of other documents which were tendered before the first defendant and not admitted by her but which were not marked for identification. The latter list includes affidavits by deponents named Luitingh, Gunther, Spira, Mordt, Taylor, Marais-Petronella, Sibanda, Ndlova, Sprag, Evans, Perry and Hodge.

63 In November 1999 the matter was fixed for hearing before the first defendant in May 2000. However, all that happened in May 2000 was several days of argument about the admissibility of evidence and some procedural matters and about an application by Mr Dutton for an adjournment of the hearing on the grounds of the alleged late service of evidence by the Republic of South Africa.

64 As stated earlier in this judgment, the actual hearing of the application for extradition took place before the first defendant in November 2000. Oral evidence (mainly consisting of evidence in cross-examination and re-examination) was given by Mr Dutton, Mr Husain, Mr Strydom and Mr Barry Dutton and by Mr van Staden, Mr de Villiers, Mr Venter and Mr Kitching. The transcript of the oral evidence occupies several hundred pages of the Review Books.

65 Although I have not yet considered the question of the nature of the review of the first defendant’s orders I am required to undertake, I propose to refer at this stage of my judgment to some aspects of the first defendant’s judgment of 18 December 2000.

66 At page 5 of her judgment the first defendant noted a submission on behalf of Mr Dutton relating to the warrant issued by Judge Streicher that “the charges should appear on or be annexed to the warrant, so that there can be no doubt that it relates to the precise charges in relation to which extradition is sought” and “there is nothing in the supporting documentation to link that warrant with the fourteen counts set out elsewhere in the supporting documents”. These submissions were rejected by the magistrate, seemingly on the grounds that the statement required by s 19(3)(c)(ii) of the Act may be contained in more than one document. The magistrate referred to what Kenny J said in paragraph 30 of his judgment in McDade v The United Kingdom (1999) FCA 1868.

67 The first defendant noted a further submission in relation to the warrant issued by Judge Streicher that the warrant was a warrant for the arrest of Mr Dutton for his failure to appear on 7 February 1994 and that his failure to appear was not an offence for which his extradition was being sought or could be sought. I gather that the point of the submission was that the warrant was not a warrant for the arrest of Mr Dutton “for the offence(s)” for which his extradition was being sought. The magistrate rejected this submission on the grounds that “it is the amended warrant upon which the applicant now relies and on its face now (the amended warrant) is a warrant for the arrest of the person in relation to the fourteen counts of fraud”. The first defendant was satisfied that the alleged offences of fraud fell within the definition of “extradition offence” in s 5 of the Act.

68 In her judgment the first defendant rejected a submission that the warrant was not “duly authenticated”, holding that the warrant was duly authenticated by having been certified by the certificate of Mr Scholtz and by having been stamped or sealed by the Registrar of the High Court of South Africa on 29 December 1997.

69 In her judgment the first defendant also rejected a submission made on behalf of Mr Dutton that there was not, as required by s 19(3)(c)(ii), a sufficient statement setting out the conduct constituting the offence(s). The first defendant held that there was a sufficient statement setting out the conduct constituting the offences in the affidavits of Mr de Vries and Mr de Villiers, including the indictment annexed to Mr de Vries’ affidavit.

70 In her judgment the first defendant then addressed the issue of dual criminality under s 19(2)(c) of the Act. The first defendant noted in particular a submission made on behalf of Mr Dutton that most of the alleged offences depended on the foreign exchange regulations in South Africa and the dual exchange rates of a commercial rand rate and a financial rand rate; that an essential element of many of the offences alleged was that Mr Dutton, with the object of obtaining an advantage, had falsely represented that he required foreign exchange for a purpose such as paying for plant which had been purchased from an overseas supplier, which would entitle him to receive foreign currency at the more favourable commercial rand rate; but that, because of the absence in Australia of any equivalent foreign exchange regulations “if he made any such false representation as alleged in Australia, it could not have been made in this country with the object of obtaining an advantage”. The first defendant rejected this argument, principally, it would seem, on the grounds that the Republic of South Africa had charged Mr Dutton, not with breaches of the South African foreign exchange regulations, but with offences of fraud.

71 In her judgment the first defendant then considered whether Mr Dutton had satisfied her that there were substantial grounds for believing that there was an extradition objection. She set out the terms of the extradition objections in paragraphs (a), (b) and (c) of s 7 of the Act. She then referred to part of the judgment of Wilcox J in Pravato v The Governor of the Metropolitan Remand Centre (1986) 8 FCR 358 and appears to have regarded what Wilcox J said as authority that an offence is not a “political” offence, unless there is an “organised prolonged campaign involving a number of people”.

72 In this part of her judgment the first defendant referred to evidence from Mr Dutton that he was opposed to apartheid, that he had stood for election, and had been elected, to a local government body in South Africa, the Linbro Park Ratepayers Association Committee, that in the election he had opposed candidates supported by the National Party and in particular by the then South African Defence Minister General Malan and he had thereby incurred the enmity of General Malan who had started a campaign against Mr Dutton.

73 The first defendant noted a submission made on behalf of Mr Dutton that there had been a conspiracy against him and that the parties to the conspiracy including all those involved in the prosecution, the trial judge, persons who had been involved in Mr Dutton’s companies, the Governor and Deputy Governor of the Reserve Bank of South Africa and senior members of Ernst & Young.

74 The first defendant noted a further submission that all of the persons engaged in the prosecution had connections to the Afrikaner organisation, the Broederbond, which had the objective of ensuring that the government of South Africa and other South African organisations were dominated by Afrikaners.

75 The first defendant then said at page 12 of her judgment:-

“All of those allegations are refuted by the applicant which called as witnesses some of the persons named by the respondent as being involved in the conspiracy against him and in particular Mr de Villiers, prosecutor, and Mr Kitching, then of South African police, who denied any personal knowledge of Malan and of being involved in the Broederbond. No cross-examination of those witnesses was directed to their either lying or obfuscating in their evidence on those points”.

76 The first defendant continued:-

“As it was stated in the submissions made on behalf of the respondent ‘A substantial portion of the respondent’s case on extradition objection concerns the proposition that his extradition is being sought in relation to foreign Exchange Control offences’. The reason for this proposition is to be found in the basis of his extradition objection that his prosecution is part of the political conspiracy against him by reason of his anti apartheid stand. His evidence was that the South African government introduced foreign Exchange Controls in order to obviate the impact of the United Nations Sanctions against the apartheid policies of that government and that since he did not support that government’s policies he also did not support the foreign Exchange Controls. His actions in expatriating South African rand was in clear flagrance (sic) of the foreign Exchange Controls and therefore a political act on his part in defiance of the apartheid government.

A good deal of evidence was adverted to in these proceedings to show the terms, nature and effects of South Africa’s foreign Exchange Controls and in particular to demonstrate the repressive nature of those, but be that as it may it is difficult to see how the respondent’s actions in flagrantly breaching those controls could amount to a political campaign on his part sufficient to engage the Republic of South Africa in a political conspiracy to destroy his business, rather it might be expected that he would simply be charged with the relevant offences in relation to those breaches. However, as it was stated by Mr de Villiers in evidence here such breaches are or would be of a lesser nature than the fraud charges.

77 The first defendant then quoted extensively from a judgment of French J in Cabal & Anor v United Mexican States & Anor (No.3) (2000) 186 A.L.R 188), especially at paragraphs 215, 216, 217, 218, 219, 220 and 227. Almost all of what French J said in those parts of his judgment related only to the extradition objection in s 7(b) of the Act.

78 The first defendant held that in the present case the material adduced on behalf of Mr Dutton did not satisfy one of the conditions stated by French J in par 227 of his judgment in Cabal (No 3) as being a condition which would usually have to be satisfied before an extradition objection under s 7(b) of the Act is made out, namely that “there is material of probative value on which the inference is open that the crucial decisions underlying the request for expedition by the requesting government had been taken because of the applicant’s political opinions”.

79 The first defendant added:-

“Further to that, Mr de Villiers and Mr Kitching both were asked of their knowledge of the respondent prior to his being investigated for the offences with which he stands charged in South Africa and each of them stated that he was not known to them prior to that time”.

80 The first defendant then found that the material adduced on behalf of Mr Dutton did not satisfy another of the conditions stated by French J in par 227 of his judgment in Cabal (No 3) as being a condition which would usually have to be satisfied before an extradition objection under s 7(b) is made out, namely that “the content and the history of expression of, or action upon, the asserted political opinion by the applicant is such as to be of demonstrable concern to the requesting government and to form a credible basis of that government’s desire to prosecute or punish the applicant”.

81 The first defendant accordingly found that Mr Dutton was eligible for extradition.

82 Many sets of written submissions were lodged with me, before, during and after the oral hearing of the review proceedings. The total length of the written submissions I received was several hundred pages.

83 Stated very broadly, the issues dealt with in the written submissions were:-

84 1. Whether there were defects in the supporting documents which had been produced to the first defendant, such that the condition of eligibility for surrender in s 19(2)(a) of the Act had not been satisfied.

85 2. Whether the requirement of “dual criminality” in s 19(2)(c) of the Act had been satisfied.

86 3. Whether there was sufficient grounds for believing that there were extradition objections within pars (a), (b) or (c) of s 7 of the Act.

87 Apart from the written submissions, lengthy oral submissions were made before me.

88 Earlier in this judgment I discussed at some length the judgment given by the first defendant in the proceedings under s 19 of the Act. A question which naturally arises is the nature of the review of the first defendant’s decision which I am required to conduct under s 21 of the Act.

89 One of the question separately determined by Hill J in his judgment in Republic of South Africa v Dutton was “whether the Court on a review under s 21 of the Act can determine for itself whether a person whose extradition is sought is eligible for surrender”. The answer given by Hill J to this question was “yes, but in so doing the Court is restricted to a consideration of the material that was before the magistrate”. At p 136 Hill J said:-

“From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material”.

90 In Cabal (No. 3) French J at par 115 said that he agreed with the passage in Hill J’s judgment which I have just quoted.

91 On the appeal in Cabal (Cabal v United Mexican States (2001) FCA 427) 108 FCR 311) the Full Court of the Federal Court noted at par 100 that the parties agreed that “the proceedings in this court are by way of rehearing, albeit a rehearing limited to the material before the magistrate”.

92 I was informed at an early stage of the hearing before me that the parties were in agreement that the review should be a rehearing in accordance with the principles stated by Hill J in Republic of South Africa v Dutton.

93 After the hearing before me had commenced, the High Court on 14 February 2002 published its reasons in Pasini v United Mexican States (2002) HCA 3. Counsel for Mr Dutton submitted that the judgment of the High Court in Pasini “does not really assist in determining what the nature of the review is” and counsel for the Republic of South Africa later said that his “preliminary view” was that counsel for Mr Dutton’s submission was correct. No further submission was made by either counsel about the nature of a review under s 21 of the Act.

94 I consider that I should apply what Hill J said in Republic of South Africa v Dutton and approach the review as being a rehearing in which I have to reach my own conclusions on whether Mr Dutton is eligible for extradition.

95 As Hill J said in Republic of South Africa v Dutton a rehearing under s 21 is limited statutorily to the material before the magistrate (s 21(6)(d) of the Act). Another of the questions separately determined by Hill J in Republic of South Africa v Dutton was “whether material sought to be tendered before (the magistrate) but rejected by her is material included within the words ‘material that was before the magistrate’ in s 21(6)(d) of the Act”.

96 At p 132 of his judgment Hill J said:-

“It was agreed that the provision of s 21(6)(d) should be given a broad meaning so that the words ‘material that was before the magistrate’ should not be restricted merely to the material which the magistrate accepted in evidence but extended to material which either party sought to tender but the tender of which the magistrate rejected. I think that the parties are correct in reaching agreement on the answer to this question”.

(2000) 172 A.L.R 743 French J held at pars 18 and 23 that:- “the material that was before the magistrate” included material proffered or tendered to the magistrate but rejected or not received by her. French J further held that, in relation to material proffered to but not accepted by the magistrate, a court conducting a review will hear submissions as to whether it should be considered as evidence in the proceedings.

98 On the appeal in Cabal the Full Court of the Federal Court expressed some doubt about the correctness of this holding by French J. (see pars 73, 151, 152 and 153).

99 At par 73 the Full Court, which included Hill J, said that the proposition that material that was before the magistrate included material which had been tendered but which had been rejected by the magistrate was “not self evident, if only because it would permit the judge conducting a review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence”. However, the Full Court said that, as the parties were agreed that French J’s construction was a correct construction of s 21(6)(d), the Full Court would accept it for the purposes of the appeal.

100 In the proceedings before me both counsel took the position that evidence which had been tendered or proffered to the first defendant but which had not been received into evidence by the first defendant was, nevertheless, “material which was before the magistrate” and it seems to me that I should adopt this position.

101 Another complicating factor is whether the Evidence Act applies in a review under s 21.

102 A conclusion stated by French J in par 23 of his judgment in Cabal (No.2) was that “in determining which of the materials before the magistrate it is to accept and take into account on the review, the court will apply criteria of relevance, weight and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or it is of little weight or that to receive it would unfairly prejudice a party to the review”.

103 On appeal the Full Court said at par 141 that it was at least implicit that French J had considered that the provisions of the Evidence Act were not applicable to the proceedings before the magistrate and that conclusion seemed to the Full Court to be correct. At par 146 of the judgment of the Full Court the Full Court said that the approach taken by French J to the admissibility of evidence in the review proceedings had not been challenged on appeal.

104 At par 189 of its judgment the Full Court said that proceedings for review under s 21 of the Act are subject to the Evidence Act, notwithstanding that the initial proceedings before a magistrate under s 19 are not so subject. The Full Court went on the hold that French J in saying that material could be rejected by a judge conducting a review on the basis of its lacking weight or being unfairly prejudicial, was really applying discretionary powers under the Evidence Act.

105 In the proceedings before me counsel for the parties were not consistent in what they put to me about whether the Evidence Act applied to the review proceedings.

106 I consider that I am bound by what the Full Court of the Federal Court said in Cabal at par 189 and I should apply the Evidence Act.

107 As I have stated earlier in this judgment, much material proffered or tendered on behalf of Mr Dutton was rejected or at least not admitted by the first defendant. Counsel for Mr Dutton informed me during the hearing that such of this material as Mr Dutton really wished to rely on, was referred to in counsel for Mr Dutton’s written submissions.

108 Rather than assay the arid and formidable task of attempting to decide, as to each piece of evidence sought to be relied on, whether it should be admitted according to the provisions of the Evidence Act, including s 135, or, if there is any difference, according to the criteria stated by French J in Cabal (No.2) (including, for example, whether a piece of evidence was properly evidence in reply or whether I should excuse a failure to file an affidavit within the time allowed by a direction given by the first defendant), I have decided that I should take into account all of the material sought to be relied on in counsel for Mr Dutton’s written submissions, giving it such weight as I consider it deserves.

367 Some documents held by the prosecution were made available to Mr Dutton. Judge Streicher ruled that if the prosecution relied on misrepresentations allegedly made in documents those documents would have to be made available to Mr Dutton and, as the prosecution relied on a large number of such documents, a large number of documents were provided to Mr Dutton.

368 Mr de Villiers could have waived docket privilege for statements by prosecution witnesses but did not do so. He gave some reasons in pars 29 and 30 of his affidavit, which were as follows:-

“The reluctance on the part of the prosecution to provide Dutton with copies of all documents to be tendered against him prior to his trial was because the case against him comprised many forged documents, and the prosecution was concerned that further forged documents may be produced by Dutton in his defence, relying on and using existing forged ones.

The prosecution did not however provide copies of witness statements to Dutton. Again the prosecution had a discretion whether to make these available beforehand, but was reluctant to do so in part because of concerns for the intimidation or influencing of witnesses”.

369 Whether or not these reasons given by Mr de Villiers should be regarded as good reasons for his deciding not to waive docket privilege, I accept that they were in fact reasons for his deciding not to waive docket privilege and I am satisfied that it was not Mr Dutton’s political opinions which led Mr de Villiers to decide not to waive docket privilege.

370 The documents allegedly fabricated by Mr Kitching, with the knowledge of Mr de Villiers, were not identified or produced.

371 As regards the taking of the evidence of some witnesses on a commission held in the United Kingdom, an order made by the South African court for the taking of the evidence of those witnesses on commission was validly made and was not set aside. The order which was set aside was an order made by a master in the United Kingdom, which was inadvertently made under the wrong United Kingdom legislation. The taking of the evidence of the witnesses on commission proceeded, because the witnesses were prepared to give evidence voluntarily without the need for a court order.

372 Mr de Villiers gave evidence, which I accept, that he had been informed that the witness Mr Olsen was residing in England and was not prepared to come to South Africa to give evidence. Mr de Villiers had “no idea that Olsen was allegedly flying in and out of South Africa”.

373 In his affidavit Mr de Villiers gave evidence that he had provided Mr Dutton with copies of the statements the witnesses at the commission had made in the Guernsey proceedings and he said that the witnesses in giving evidence at the commission in the United Kingdom did not give any evidence which was inconsistent with the statements they had made in the Guernsey proceedings.

374 Mr Dutton did not produce any part of the transcript of the trial in South Africa which would support his assertion that Judge Streicher refused to allow him to make a no case submission. Mr Dutton’s claim that during the prosecution case he had demonstrated that there was a conspiracy against him is difficult to reconcile with his acceptance elsewhere in his evidence that he had not raised his political opinions at the trial in South Africa.

375 Mr de Villiers gave evidence, which I accept, that he did not know that Mr Siff was not independent of both parties.

376 As had been anticipated by counsel for Mr Dutton, counsel for the Republic of South Africa submitted that evidence adduced by the Republic of South Africa showed that the persons who had made the crucial decisions underlying the investigation and prosecution had no knowledge of Mr Dutton’s political opinions, if any, and had not been influenced in the performance of their functions by any knowledge of Mr Dutton’s political opinions. Notwithstanding the submissions made by counsel for Mr Dutton attacking the credibility of such witnesses as Mr van Staden, Mr de Villiers, Mr Venter and Mr Kitching, I consider that I should accept these parts of their evidence.

377 Mr van Staden said in his affidavit that his involvement in the investigation had resulted from information supplied to him by Hill, which Mr van Staden found to be supported when he examined the records of Interboard on 31 August 1987. He denied that his involvement in the investigation was the result of any pressure placed on him by any person or body, such as the National Party, the Broederbond or any competitor of Interboard or “any knowledge on my part of Dutton’s political activities, aspirations or the like. In fact, I was completely unaware of Dutton’s political affiliation”.

378 Mr van Staden gave oral evidence that he had first become aware that Mr Dutton alleged that there was a political conspiracy against him to which van Staden was a party “during communications regarding the extradition proceedings”.

379 In his affidavit Mr de Villiers gave evidence that he was primarily responsible for both the decision to prosecute Mr Dutton and the determination of the charges on which Mr Dutton should be tried. Mr de Villiers is an Afrikaner but he has never been a member of the Broederbond or the National Party. He joined the Democratic Party as an inaugural member in 1989. The Democratic Party was opposed to apartheid and the National Party. As a prosecutor Mr de Villiers had specialised in the prosecution of commercial offences and in the prosecution of commercial offences he had not encountered the corruption, pressures and manipulation which he accepted had sometimes occurred in other parts of the criminal justice system during the apartheid era.

380 In par 17 of his affidavit Mr de Villiers said:-

“The investigation during the time I was involved in it, and the entire prosecution of Dutton was conducted by me without any regard to any political considerations. In particular I was not approached by any person or entity concerning the prosecution and I was unaware of Dutton’s political background, affiliations and aspirations”.

381 In his oral evidence Mr de Villiers said:-

“It came as a big surprise to me when Mr Dutton alleged that he was aligned to assisting the ANC, in his papers”.

382 Mr Venter is an Afrikaner. He gave evidence that he had never been a member of the Broederbond. “In the community that I move in no one belongs to it. It’s not something that people of our age generally participate in”.

383 In his affidavit Mr Venter said:-

“In pursuing my responsibilities in the investigation, I did so without any regard to political considerations. The investigation centred on the question whether the documents which had been presented to the banks to remit the funds were false or not. During the investigation de Villiers, Kitching and I worked closely together. I did not know of Dutton’s political views or his political affiliations. I did not discuss political matters at any time with de Villiers or Kitching in relation to Dutton or the investigation”.

384 As regards some of the attempts to attack Mr Venter’s credibility on the basis that he professed in his evidence not to be aware of certain matters which it was suggested he should and would have been aware of, I accept that Mr Venter considered that “I had a very specific brief as to what I had to do” and that in his investigation Mr Venter did not go outside his instructions.

385 Mr Kitching was in charge of the investigation from the time he took over from Mr van Staden to the time of Mr Dutton’s arrest. Mr Kitching is an Afrikaner who gave evidence that he had never been a member of the Broederbond or of any political party. As a member of the South African police he had investigated offences of fraud and not offences of a political character. In his affidavit he said:-

During the investigation and prosecution no one sought to influence me in the conduct of my duties, and I was not influenced in the conduct of my duties by any political considerations. I was completely unaware of any political affiliations or sympathies held by Dutton”.

386 As stated by me earlier in this judgment, I do not accept that Mr Kitching acted unjustly or offensively towards Mr Dutton in the ways alleged by Mr Dutton.

387 It was submitted that I should draw Jones v Dunkel inferences against the Republic of South Africa for not having called as witnesses Malan, von Lieres und Wilkau and Olsen. I do not consider that I should draw any such inference, even if I accept that in extradition proceedings such an inference can sometimes properly be drawn.

388 As regards Malan, I do not accept that Malan is a person who the Republic of South Africa would have been expected to call as a witness. The evidence which was adduced does not tend to show that Malan played any part in the investigation or prosecution. There is nothing in the evidence which was adduced which would tend to show that Malan played any part in the making of the extradition request in January 1998. Indeed, the evidence strongly suggests that Malan would not have played any part at all in the making of the extradition request. By 1998 he did not hold any position in the government of South Africa. He was no longer even a member of parliament. In about 1994 he and a number of alleged co-offenders had been tried for murder, although he was ultimately acquitted. In his evidence before the first defendant Mr Dutton accepted that General Malan had suffered some “substantial reversals” in South Africa and that he was “disgraced”, although Mr Dutton asserted that General Malan could still be a conspirator against him by virtue of having a senior position in the Broederbond.

389 Earlier in this judgment I outlined points made by counsel for Mr Dutton concerning von Lieres und Wilkau. I accept that as the local Attorney-General and as Mr de Villiers’ superior von Lieres und Wilkau played a part in the prosecution of Mr Dutton. However, I also accept Mr de Villiers’ evidence that, although he consulted with von Lieres und Wilkau, it was he, Mr de Villiers, who was primarily responsible for the decision to prosecute Mr Dutton and the determination of the charges.

390 There is nothing in the evidence which was adduced which would tend to show that von Lieres und Wilkau played any part in the making of the extradition request. Before the extradition request was made von Lieres und Wilkau had ceased to be an Attorney-General or to hold any official position. He ceased to hold his position of Attorney-General shortly before the murder trial of Malan in which von Lieres und Wilkau represented Malan. It is not entirely clear on the evidence whether von Lieres und Wilkau resigned his position of Attorney-General or whether he was discharged for medical reasons (he was suffering from a serious medical condition).

391 I do not consider that there is anything in the evidence to suggest that Mr Olsen played any part in the investigation or the arrest of Mr Dutton or that he played any part in the making of the extradition request.

392 I hold that Mr Dutton has not made out an extradition objection within s 7(b) of the Act.

393 Counsel for Mr Dutton submitted that it had been established that there were substantial grounds for believing that there was an extradition objection within each of the two limbs of s 7(c) of the Act, that is if Mr Dutton was surrendered to the Republic of South Africa he might be prejudiced at his resumed trial by reason of his political opinions or he might be restricted in his personal liberty by reason of his political opinions.

394 Counsel for Mr Dutton submitted, and I accept, that because of the use of the word “may” in s 7(c), it is not necessary for a person seeking to make out an extradition objection within s 7(c) to prove that there are substantial grounds for believing that he will be prejudiced at his trial or restricted in his personal liberty, if he is surrendered to the extradition country. In Rahardja v Republic of Indonesia (2000) FCA 1297 the Full Court of the Federal Court said with respect to s 7(c) of the Act:-

“We accept the submissions of counsel for the appellant as to the test that must be applied considering whether there is an extradition objection in this case. As counsel say, the inquiry concerns future and hypothetical events. Necessarily, therefore, the Court is required to engage in a deal of speculation. And it is sufficient if the person raising the objection establishes a substantial or real chance of prejudice; it is not necessary to show a probability of prejudice or any particular degree of risk of prejudice’.

395 Counsel for Mr Dutton in making submissions in relation to the asserted extradition objection or objections under s 7(c) incorporated many of the submissions he had already made in relation to the asserted extradition objection under s 7(b). I have already dealt with these submissions earlier in this judgment and I will not repeat what I have said elsewhere. However, counsel made some submissions which specifically related to the asserted extradition objection or objections under s 7(c).

396 It was submitted that Mr Dutton had already suffered prejudice in the part of the trial which had already taken place and that it could be inferred from the prejudice he had already suffered that, if he was extradited and his trial was resumed, he would or might be prejudiced at the resumed trial. It was pointed out that, if Mr Dutton was extradited and his trial was resumed, the same judge Judge Streicher would be the judge and it was likely that the same prosecutor Mr de Villiers would be the prosecutor, notwithstanding that he was no longer employed in the Office of Serious Economic Offences, by virtue of a special appointment by the Minister of Justice and the National Director of Public Prosecutions “to see this matter through”. In an affidavit by Mr Husain Mr Husain said that, if Mr Dutton was extradited, Mr Kitching would continue as an investigating police officer. However, Mr Kitching has in fact left the South African Police.

397 It was submitted by counsel for Mr Dutton, and not disputed by counsel for the Republic of South Africa, that, if Mr Dutton is extradited and his trial is resumed, the resumed trial will be conducted in accordance with the practices and procedures which were in force at the time of the part-heard hearing and that the new South African constitution which contains provisions more protective of criminal accused will not apply because it does not apply retrospectively to criminal trials which have already commenced. It was also common ground that the decision of the South African Constitutional Court in Shabalala v the Attorney-General of the Transvaal (1995) 2 SACR 761 (CC) in which the South African court held that a blanket docket privilege in criminal cases was unreasonable and unjustifiable did not apply retrospectively to trials which had already commenced and would not apply to Mr Dutton’s trial.

398 The conduct on the part of Judge Streicher, Mr de Villiers and Mr Kitching which, it was submitted, had prejudiced Mr Dutton in the part-heard trial was some of the same alleged conduct as was relied on in relation to the alleged extradition objection under s 7(b), including the alleged conduct allegedly leading to Mr Dutton being unrepresented at the trial, Mr de Villiers declining to waive docket privilege and Judge Streicher’s refusing to allow Mr Dutton to make a no case submission. For reasons which I have already given, in some instances I do not accept that the alleged conduct occurred, in other instances while accepting that the alleged conduct occurred I do not consider that it gives rise to any inference of the sort contended for by counsel for Mr Dutton and in other instances I am satisfied that what happened was in accordance with what were standard practices and procedures in South Africa at the time and that Mr Dutton was not discriminated against, whether by reason of his political opinions or on any other ground.

399 If Mr Dutton had not absconded while on bail in February 1994, his trial would have continued and would have been concluded in accordance with the practices and procedures then in force in South Africa.

400 I conclude that Mr Dutton has not made out an extradition objection that there are substantial grounds for believing that on surrender to South Africa he may be prejudiced at his resumed trial by reason of his political opinions.

401 Nor do I consider that Mr Dutton has made out an extradition objection that there are substantial grounds for believing that on surrender to the Republic of South Africa he may be restricted in his personal liberty by reason of his political opinions. The matters sought to be relied on in support of this asserted extradition objection were the alleged enmity of General Malan, the threats Mr Dutton said he had received from persons such as Mr Smit and Mr van Heerden and the alleged incidents in which his home was broken into and shots were fired in to his home. On the basis of these matters it was submitted that, if Mr Dutton was extradited, he would be at risk of being injured or killed.

402 However, all of the matters sought to be relied on, if they occurred, occurred many years ago. It seems to me highly implausible that, so many years afterwards and Mr Dutton having been in Australia for about eight years, there is any real risk that anyone would seek to kill or injure Mr Dutton, if he is returned to South Africa.

403 If anybody had been minded to kill or injure Mr Dutton, they did not take advantage of the many opportunities which must have presented themselves between the last of the matters sought to be relied on happening and Mr Dutton absconding in 1994.

404 Counsel for Mr Dutton also submitted that it had been established that there were substantial grounds for believing that there was an extradition objection within s 7(a), that the offences for which Mr Dutton’s extradition was being sought were political offences in relation to the Republic of South Africa.

405 Counsel for Mr Dutton referred to the definition of “offence” in s 5 of the Act as including an offence “relating to foreign exchange control” and to the definition of “political offence” in s 5. The definition of “political offence” provides in part that -

“’Political offence’ in relation to a country means an offence against the laws of the country that is of a political character (whether because of the circumstances in which it is committed…).”

406 The definition goes on to provide that certain kinds of offences are excluded from being a “political offence”. It was not suggested that any of these exclusions was directly relevant, although it was suggested that the number of the exclusions indicates the prima facie width of the meaning of “political offence”.

407 Counsel referred to the distinction between “pure” political offences and “relative” political offences and the discussion of these two different kinds of political offences in Aughterson. At p 91 Aughterson says:-

“There is little difficulty in isolating ‘purely’ political offences; that is, conduct which violates laws designed to protect political institutions of the state. Foremost amongst these are treason, sedition and espionage, as well as passive offences such as those involving dissent from prevailing ideology. Purely political offences are to be distinguished from those offences which, though directed at the political institutions of the state, involve the commission of common crimes; such as a murder committed in the course of a political uprising. Generally, the latter are categorised as ‘relative political offences’. A purely political offence affects only the public interest, while a relative political offence also involves the commission of a private wrong, the commission of a common crime.

408 It was contended by counsel for Mr Dutton that the distinction between pure political offences and relative political offences is recognised in the definition of “political offence” in s 5 of the Act, by the inclusion of the words in brackets “whether because of the circumstances in which it is committed or otherwise”. It was also contended by counsel for Mr Dutton that in the case of pure political offences the offender’s motive or purpose is irrelevant.

409 The argument by counsel for Mr Dutton that an extradition objection under s 7(a) had been made out, at least in respect of the offences charged in counts 1-12 and 14 of the indictment, was, essentially, as follows:-

410 1. The offences allegedly committed by Mr Dutton were to be properly characterised as contraventions of the South African Foreign Exchange laws.

411 2. The South African foreign exchange laws were laws designed to protect the political institutions of the apartheid state of South Africa. The foreign exchange laws had been introduced in 1961 to prevent or limit the impact on South Africa of international sanctions imposed on South Africa, because of the international community’s feelings of revulsion for the incident known as the Sharpeville massacre.

412 3. Consequently, the offences allegedly committed by Mr Dutton were pure political offences. Because they were pure political offences, it was not relevant to inquire into Mr Dutton’s purpose or motive in committing the offences.

413 It was conceded by counsel for Mr Dutton that the offence charged in count 13 of the indictment did not involve any contravention of the foreign exchange laws and an extradition objection within s 7(a) was not available in relation to that offence. However, it was submitted that the offence charged in count 14 of the indictment, even if not as obviously as the offences charged in counts 1-12, did nevertheless involve a contravention of the foreign exchange laws and was a pure political offence.

414 Counsel for the Republic of South Africa disputed that the offences allegedly committed by Mr Dutton which were charged in counts 1-12 and 14 of the indictment were properly to be characterised as contraventions of the South African foreign exchange laws and disputed that the offences were political offences, whether pure political offences or relative political offences.

415 I do not consider that the alleged offences charged in counts 1-12 of the indictment are properly to be characterised as simply being contraventions of South Africa’s foreign exchange laws. The alleged offences were offences of fraud involving many millions of South African rand. I accept Mr de Villiers’ evidence that, in his view, the offences were so serious that charges of breaches of the foreign exchange regulations were never seriously considered by him and I consider that his view of the seriousness of the offences and what would be the appropriate charges was well justified.

416 According to Mr van Staden’s evidence, which I accept, foreign exchange laws were not first introduced in South Africa in 1961. Mr van Staden gave evidence that comprehensive foreign exchange regulations were first introduced just after the outbreak of World War II in 1939. These Regulations were amended on a number of occasions. While it is true that the Regulations were amended in 1961 after the Sharpeville massacre, the main amendments made in 1961 were confined to limiting the withdrawal from South Africa of the proceeds of South African assets which had been held by non-residents. Even at the time Mr van Staden was giving evidence before the first defendant there was still some foreign exchange controls in South Africa. Foreign exchange laws or regulations are not, of course, unique to South Africa. Many countries have or at some time or other had foreign exchange controls. Mr van Staden said that at the time of his giving evidence more than 150 member states of the United Nations had foreign exchange controls.

417 Even if the offences allegedly committed by Mr Dutton were properly to be characterised as contraventions of the South African foreign exchange laws, I do not accept that a contravention of the country’s foreign exchange laws is a political offence as being a pure political offence and hence as being a political offence regardless of the offender’s motive or purpose. If this were so, then if during the apartheid era a South African who supported apartheid committed a contravention of the foreign exchange laws for the purpose of gaining a financial advantage for himself, he would have been able successfully to resist being extradited from Australia on the ground that the offence for which his extradition was being sought was a pure political offence.

418 No attempt was made to submit that the alleged offences were relative political offences. If such an attempt had been made then I consider that the judgments of the members of the High Court in Minister for Immigration and Multi-Cultural Affairs v Singh (2002) HCA 7 would have been relevant. It is true that in Singh the High Court was concerned with the interpretation of the expression “serious non-political crime” in article 1F of the Convention relating to the Status of Refugees 28 July 1951. Nevertheless, the discussion by members of the Court of that expression necessarily involved a discussion of the expression “political crime” and that discussion throws light on the meaning of the expression “political offence”. Applying the tests stated by Gleeson CJ at par 21, Gaudron J at par 45, Kirby J at par 142 and Callinan J at par 160, the offences which Mr Dutton is alleged to have committed would not, on the application of any of these tests, have amounted to a “political offence”.

419 In par 115 of his principal affidavit Mr Dutton claimed that he knew that exchange control was a political tool introduced to protect the apartheid policy from attach from outside and within South Africa and that he encouraged the exploitation of the circumvention of the exchange controls by the foreign shareholders in his businesses, knowing that the more the exchange controls were circumvented the weaker the National Party Government would become and the sooner apartheid would be destroyed. However, even if this statement is accepted at face value, the offences which Mr Dutton is alleged to have committed involved he himself having secretly circumvented the foreign exchange laws of South Africa at very considerable personal profit to himself, not that he merely encouraged the exploitation of circumventions of the foreign exchange laws by the foreign shareholders in his businesses.

420 Pursuant to s 21(6)(g) of the Act I determine that the plaintiff Edward Isaac Dutton is eligible for surrender in relation to all fourteen offences charged in the indictment a copy of which is annexed to the affidavit of Andries Petrus de Vries sworn 29 December 1997.

**********

Last Modified: 11/22/2002

Actions

Download as PDF Download as Word Document

Citations

Dutton v O'Shane [2002] NSWSC 1086

Most Recent Citation

Charles Hermanowski v United States of America [2005] NSWSC 145

Cases Citing This Decision

1

Charles Hermanowski v United States of America [2005] NSWSC 145

Cases Cited

17

Statutory Material Cited

2

Bennett v United Kingdom [2000] FCA 916

Republic of South Africa v Dutton [1997] FCA 708

Mercanti v The State of Western Australia [2005] WASCA 254

CITATION:	Dutton v O'Shane [2002] NSWSC 1086
FILE NUMBER(S):	SC 13353/2000
HEARING DATE(S):	04/09/01-07/09/01, 26/10/01, 29/10/01, 29/11/01, 19/03/02, 26/03/02, 27/03/02
JUDGMENT DATE:	20 November 2002
PARTIES :	Edward Isaac Dutton (Plaintiff) Patricia June O'Shane (First Defendant) The Republic of South Africa (Second Defendant)
JUDGMENT OF:	James J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	20029353/99
LOWER COURT JUDICIAL OFFICER :	P O'Shane

COUNSEL :	T Game SC/S McNaughton - Plaintiff P Neil SC/P McDonald - 2nd Defendant
SOLICITORS:	Fox & Staniland - Plaintiff G Drennan - Cth DPP - 2nd Defendant
CATCHWORDS:	Extradition - Extradition proceedings before magistrate - review - supporting documents - warrant - dual criminality - extradition objections
LEGISLATION CITED:	Extradition Act s 7(a), (b) and (c) s 19, s 21 Banking (Foreign Exchange) Regulations 5, 40, 42
CASES CITED:	Republic of South Africa v Dutton (1997) 77 FCR 128 United Mexican States v Cabal (2001) HCA 60, (75 ALJR 1663) McDade v The United Kingdom (1999) FCA 1868 Pravato v The Governor of the Metropolitan Remand Centre (1986) 8 FCR 358 Cabal & Anor v United Mexican States & Anor (No.3) (2000) 186 ALR 188 Cabal v United Mexican States (2001) 108 FCR 311 Pasini v United Mexican States (2002) HCA 3 Cabal v United Mexican States (No.2) (2000) 172 ALR 43 Warren v Coombes (1978-1979) 142 CLR 531 Timar v Republic of Hungary (1999) FCA 1518 De Bruyn v Republie of South Africa (1999) 96 FCR 290 Zoeller v Federal Republic of Germany (1989) 23 FCR 282 Wiest v Director of Public Prosecutions (1988) 23 FCR 472 Riley vThe Comonwealth (19850 159 CLR 1 Linhart v Elms (1988) 81 ALR 557 Heilbronn v Kendall (775 F.Supp. 1020 (WD Mich 1991)) Brauch v Raiche 618 F.2d 843 Re Collins (No.3) A Crim R 210 R v Webber (1988) 38 A Crim R 210 Dempster v National Companies and Securities Commission (1992-1993) 10 ACSR 297 Rahardja v Republic of Indonesia (2000) FCA 1297 Shabalala v The Attorney-General of the Transvaal (1995) 2 SACR 761 Minister for Immigration and Multi-Cultural Affairs v Singh (2002) HCA 7
DECISION:	Determination - plaintiff eligible for surrender