Haddad, J.A.K v Larcombe, H. and Ors
[1989] FCA 427
•09 AUGUST 1989
Re: JAMAL ABDUL KADAR HADDAD
And: HELEN LARCOMBE; FEDERAL REPUBLIC OF GERMANY and COMMONWEALTH
DIRECTOR OF PUBLIC PROSECUTIONS
No. NG 239 of 1989
FED No. 427
Extradition
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Extradition - Application to extradite person to serve sentence of imprisonment in West Germany - Sentence of 1 year and six months imposed in April 1983 - Two year probation period ordered in December 1983 - Order made by German court in May 1986 revoking parole period and ordering that applicant serve balance of sentence - Applicant then in Australia - Whether applicant had undergone punishment provided by the law of West Germany - Documents tendered to magistrate not authenticated by certificate in English language or translated into English - Whether documents admissible.
Extradition Act 1988 ss.6, 7, 15, 19, 21.
HEARING
SYDNEY
#DATE 9:8:1989
Counsel for the Applicant: Mr G R James QC with Mr P Kintominas
Solicitors for the Applicant: Benjamin & Khoury
Solicitor for the First Respondent: Crown Solicitor of New South Wales
Counsel for the Second and Third Respondents: Ms E Fullerton
Solicitor for the Second and Third Respondents: Director of Public
Prosecutions
ORDER
The application for review be allowed.
The decision of the first respondent made on 11 May 1989 to commit the applicant to the Long Bay Complex of Prisons, Malabar to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s.22(5) of the Extradition Act 1988 be quashed.
A magistrate of a Local Court be directed to order the release of the applicant under s.19(9) of the Extradition Act.
The second and third respondents pay to the applicant his costs of this proceeding including the costs incurred by him in relation to his application for bail on 11 May 1989.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
By this application, made pursuant to s.21 of the Extradition Act 1988, Jamal Abdul Kadar Haddad seeks the review of an order made by Helen Larcombe, a stipendiary magistrate sitting in a Local Court, for his extradition to the Federal Republic of Germany. Ms Larcombe is the first respondent to the application. She has appeared to submit to the order of the Court. The case against the applicant's claim is put by counsel appearing for the second and third respondents, the Federal Republic of Germany and the Director of Public Prosecutions respectively.
According to the English language version of a bundle of documents tendered to the Local Court, the applicant was born in Lebanon on 7 July 1962. He entered West Germany in December 1979, living with his brother in Stuttgart-Feuerbach. On 7 January 1983 he and another young man assaulted and robbed the manager of a store, stealing some DM15,000. In the Local Court (Juvenile Court) at Ludwigsburg, on 19 April 1983, both men pleaded guilty to charges of joint robbery in coincidence with joint grievous bodily harm. The applicant was sentenced to a juvenile prison sentence of one year and six months. However, it was ordered that a decision upon the suspension of sentence be made in separate written proceedings by court order.
It appears from the documents that the applicant was immediately released from custody. It was not until 21 December 1983 that a suspension order was made. On that day an order was made, in the same Court, suspending the prison sentence on probation. The probation period was ordered to be for two years, the applicant being placed under the control and supervision of a named probation officer. The order included instructions that the applicant not change his place of residence or employment without the previous consent of his probation officer and that he inform the Local Court at Ludwigsburg of any change of address.
At some stage prior to the expiration of the two-year probation period Mr Haddad left West Germany. According to evidence which he gave in the extradition proceedings before the first respondent, this was done with the knowledge and consent of his probation officer. However that may be, he made his way to Australia where he married his present wife in October 1985. According to Mrs Haddad, the applicant has since lived with her in the Sydney suburb of Liverpool.
On 30 May 1986 the Local Court at Ludwigsburg made an order revoking the suspension of sentence order made by the Juvenile Court on 19 April 1983. It ordered that the sentence "be executed according to the regulations governing the imprisonment of adults". In its reasons for decision the Court cited the applicant's disregard for the instructions that he obtain the consent of his probation officer before changing his place of residence, and that he notify the Court of any change of address. In a notice contained in the documents the Court stated that the period of 103 days spent in pre-trial confinement should be offset against the juvenile prison sentence of one year and six months, leaving one year and 79 days to be served. The documents in English translation do not reveal what evidence was placed before the German court in 1986 nor what steps (if any) were taken to notify Mr Haddad of the application to revoke the suspension of his sentence.
On 23 September 1988 the Attorney-General issued a notice under s.15(1)(a) of the Extradition (Foreign States) Act 1966 authorising any magistrate to issue a warrant for the apprehension of Mr Haddad. On 26 September 1988 a warrant was issued by Mr K R Webb SM. It was executed upon the following day. The applicant was brought before the Local Court, constituted by Mr N C Pepper. He was released on bail pending a final determination of the application for extradition.
The first respondent completed the hearing of the application for extradition on 11 May 1989. On that date she made an order under s.19(9) of the 1988 Extradition Act committing the applicant to custody to await surrender under a surrender warrant or temporary surrender warrant, or release pursuant to an order under s.22(5) of that Act. On that same day an Application was filed in this Court and I made an order releasing the applicant on bail pending the hearing of his application for review, subject to compliance by him with certain conditions.
In submitting that the learned magistrate erred in ordering the surrender of their client for extradition, counsel for the applicant rely upon three separate submissions. Two of these grounds are technical matters, success upon which would not relieve Mr Haddad of the possibility of further action being taken against him. However, success on either point would entitle the applicant to an order setting aside Ms Larcombe's order for his surrender.
The two technical points arise out of ss.15 and 19 of the Act, the relevant portions of which are as follow:
"15. (1) A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.
(2) The person shall be remanded by a magistrate in custody, or, subject to subsection
(6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.
(3) ...
(4) ...
(5) The transferee shall be remanded by a magistrate in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.
(6) ...
...
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; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2)For the purposes 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 document--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:
(i)the conviction;
(ii)the sentence imposed or the intention to impose a sentence; and
(iii)the extent to which a sentence imposed has not been carried out; and
(c)in any case:
(i)a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii)a duly authenticated statement in writing setting out the conduct constituting the offence.
(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 (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of 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
(b)it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i)in any case--of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii)where the extradition country is a colony, territory or protectorate--of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(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 a 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
(b)advise the Attorney-General in writing of the order and of the magistrate's reasons for determining that the person is not eligible for surrender."
The first submission for the applicant is that the magistrate erred in admitting into evidence an English language translation of the German documents, that translation not being verified on oath.
The evidence tendered to the Local Court included two bundles of documents, each apparently emanating from the Court at Ludwigsburg, together with what purported to be English translations of those documents. The English language documents bore the inscription "Certified Translation" and were stamped with the seal of Rosemary A Tzschoppe of Stuttgart. At the conclusion of the documents was an attestation in the English language whereby Ms Tzschoppe certified "that I have translated the preceding documents from the Amtsgericht (Local Court) Ludwigsburg, and that the translation is correct and complete to the best of my knowledge".
In the case of one bundle there was no further authentication, but this bundle is of little importance. It merely proves service by posting of the order of 21 December 1983. The other bundle contains a sheet, as its last page, which is in the German language. This sheet bears the date 10 August 1987 and the seal "Staatsanwaltschaft Stuttgart". The seal is countersigned by one Holscher, who is described as "Staatsanwalt". Neither in the bundle of documents itself, or elsewhere in the evidence before Ms Larcombe, is there any translation of this document. It may be that this last sheet was intended to authenticate the whole bundle, possibly including the English translations, but this is not apparent to people who cannot read German.
In support of their submission that the bundles of documents were not admissible under s.19 of the Act, counsel for the applicant refer to the decision in Rex v Zossenheim (1903) 20 T L R 121. That case does not have much to do with the present problem, but it was held by the Judicial Committee of the Privy Council in Fakisandhla Nkambule v The King (1940) AC 760 at p 771 that, in the absence of a sworn English translation, documents were not admissible in evidence. I do not doubt that this principle has general application in Australia today; but I think that s.19 of the Extradition Act provides its own code in connection with documents tendered on behalf of an extradition country. According to this code the touchstone is due authentication, as to the requirements of which s.19(7) is specific. If a particular document is authenticated in accordance with that subsection it is admissible. This principle applies regardless of the identity of the language in which the document is written. At the hearing of an extradition application, an Australian court may receive into evidence, and act upon, an English language translation of a foreign language document provided that the translation is itself authenticated in accordance with s.19(7) and notwithstanding that it is not proved on oath. Accordingly, I would not uphold the applicant's submission in its precise form.
Nonetheless, I am of the opinion that the two bundles of documents were not admissible before the Local Court in the present case. In the case of one bundle there was no authentication at all. In the case of the other, the only document which might be regarded as an authentication was the untranslated certificate dated 10 August 1987. But, without some knowledge of the German language, it is impossible to determine whether that certificate complies with s.19(7).
It may be that the learned magistrate reads German and that she was able to determine that this certificate fulfilled the requirements of s.19(7), although there is nothing in the transcript of the proceedings before her to suggest that this was the position. But that circumstance would not have made this particular document, or the bundle, admissible in the proceeding. The rule that Australian courts act only upon the basis of evidence in the English language is an aspect of the public policy that, generally speaking, the courts conduct their proceedings in public. It may happen that, in a particular case, both the relevant judicial officer and the other participants understand a particular foreign language. Nonetheless to permit the proceedings to be conducted in that language, or documents written in that language to be admitted into evidence without a translation, would be to erode the principle of public access to court proceedings.
In my opinion the learned magistrate should have rejected the tender of both bundles of documents. Should she have done so, the Director of Public Prosecutions might have procured an adjournment of the hearing -- see s.19(4) -- and subsequently proved a translation of the certificate of 10 August 1987. This may have led to the proper admission into evidence of the larger bundle of documents. Subsection (8) of s.19 expressly saves the proof of any matter, or the admission of any document in the proceedings, in accordance with any other relevant law. But, unless and until this step was taken, the bundle was inadmissible. It follows that there was no material before the Court which satisfied s.19(2) and that the surrender order should not have been made.
The second technical point has less merit. The warrant issued by Mr Webb, and upon which the applicant was apprehended, was admitted in evidence by Ms Larcombe over the objection of counsel for the applicant. The reason for the objection was that somebody had scribbled over Mr Webb's signature and had drawn two lines across the warrant and scribbled between those lines, as if to cancel the document. Counsel for the applicant contended that it was a precondition of Ms Larcombe's jurisdiction that there be a proper warrant.
In this Court the point has been amplified by reference to s.15(1) of the Act whereby it is ordained that a person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested. The person may then be remanded in custody or on bail. Section 19(1) sets out the circumstances in which a magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence. The first of those circumstances, stated in para.(a), is that "a person is on remand under section 15". The argument on behalf of the applicant is that, absent a proper warrant, the applicant was neither properly brought before Mr Pepper after his arrest nor properly remanded by him; consequently, s.19(1) was not satisfied so that the Local Court had no jurisdiction to make an order for his surrender under s.19(9).
I think that it is correct to say that arrest under a proper warrant is a precondition to the exercise of jurisdiction under s.19(9) in connection with a particular person. However, in the present case evidence was given by the arresting police officer that, at the time when the applicant was arrested and brought before Mr Pepper the warrant was free of the subject markings. The warrant was apparently tendered at the hearing before Mr Pepper and subsequently marked by an unknown person. Presumably this was done in order to indicate that the warrant had been executed. Although it is curious that the warrant was marked in this way, no question of jurisdiction arises from that fact.
The third, and more substantial, point taken on behalf of the applicant arises out of the course of events in West Germany. The argument begins with s.6 of the Act, which is as follows:
"6. Where:
(a)either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii)a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A)there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B)the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c)the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country."
The warrant issued in the present case by Mr Webb recited a notice from the Attorney-General, under the 1966 Act, that Mr Haddad was "a fugitive from the Federal Republic of Germany who has been convicted of the offence of joint robbery with violence against the law of that State". In this Court counsel for the respondents confirmed that there is no suggestion of Mr Haddad being wanted for trial for some new offence. The case is that he is an extraditable person pursuant to subpara.(ii)(B) of s.6(a), a part of his sentence remaining to be served.
Section 7 sets out a series of situations, each of which constitutes an "extradition objection" in relation to an extradition offence for which a surrender is sought. These objections include that:
"(e)the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence."
Although s.16 of the Act uses the term "extraditable person" in connection with the Attorney-General's decision whether to give a notice to a magistrate for the issue of a warrant of arrest, s.19 does not use this term at all. However, the section does use the concept of an "extradition objection", making this a defence to an application for extradition: see s.19(2)(d). In the present case, counsel for the applicant submit that the documents placed before Ms Larcombe clearly establish the existence of an "extradition objection", with the result that their client is not eligible for surrender. That objection was that Mr Haddad had undergone the punishment provided by German law. Counsel refer to authorities which show that, under Australian law and in the absence of a relevant statutory provision, a sentence runs from the date of its pronouncement, even if the offender has been released on bail pending an appeal (Whan v McConaghy (1984) 153 CLR 631) or has escaped from custody (Wilson v Attorney-General (1938) NZLR 496). In Wilson the New Zealand Court of Appeal held that, if a prisoner is recaptured after the expiration of his sentence, he may not be detained, notwithstanding that he has not served the sentence imposed upon him.
In considering the present case, it is necessary to avoid drawing too heavily upon concepts of Australian law -- concepts which may not be shared by German courts. But, even without the assistance of local authorities and looking only at the documents, it seems to me that counsel's contention is correct. The sentence imposed by the Juvenile Court on 19 April 1983 was for a term of imprisonment of one year and six months. No commencement date was stipulated so the sentence must be regarded as having commenced on that day and, therefore, as having terminated on 19 October 1984. Before 19 October 1984, namely on 21 December 1983, the sentence was suspended and a probation order was made placing Mr Haddad on probation for two years from that date. I find strange the notion of a probation order which extends beyond the term of the sentence pursuant to which it is imposed. However, I assume that such an order may lawfully be made under German law. Making that assumption, Mr Haddad was obliged to observe the terms of his probation until 21 December 1985. Prior to that date he might have been dealt with by a German court for any breach of the probation order. But no action was taken against him during the period of probation. It seems to me that when the Local Court, on 30 May 1986, purported to revoke the probation order and to require service of the full term of imprisonment, there was nothing upon which it could base that order. The probation order was spent. It could not be revoked.
Counsel does not suggest that there is any German law enabling a probation order to be revoked after it has expired or a person to be imprisoned after the end of his or her sentence. The argument for the respondent upon this aspect of the case is that it is not for the Australian courts to concern themselves with the legality of the order of 30 May 1986. Counsel refers to Royal Government of Greece v Governor of Brixton Prison (1971) AC 250 and Government of Australia v Harrod (1975) 1 WLR 745.
The decision of the House of Lords in the Greek case is authority for the principle that, in considering an application for the extradition of a convicted person, an English court will not enter into the question whether the convicting court afforded the fugitive natural justice. The rationale of that decision was that the situation was governed by a treaty and an Order in Council applicable to Greece which made the fact of the conviction the critical matter. As Lord Morris of Borth-y-Gest put the matter at p 281:
"It is for the courts to say whether the statutory conditions have been complied with to the extent that a fugitive criminal could be surrendered: it is for the Secretary of State to decide whether, having regard to all the circumstances, he should be surrendered."
In the present case, of course, the question is the application of the statutory condition.
Harrod concerned the question whether the English magistrate, to whom an application for extradition had been made, gave to the fugitive a fair opportunity of meeting the case made against him. It has no relevance to the present case.
I accept the submission that an Australian court ought to pay full respect to an order of a foreign court. An Australian court should not assume the order of such a court to be ineffective, or made without jurisdiction. But the issue which may be raised under s.7(e) -- that is, whether the person has undergone the punishment provided by the law of the other country -- is an issue which must be determined in an Australian court. Where it is apparent on the face of the documents that this is the position, the Australian court must say so even though this involves a conclusion that a foreign court has exceeded its powers.
I propose to allow the application for review and to quash the decision of the first respondent. I will direct that a magistrate order the release of the applicant. I extend bail, pending that order, on the existing terms. The second and third respondents must pay the costs of the applicant, including the costs of the application for bail on 11 May 1989.
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