Hempel & Anor v Attorney-General

[1988] HCATrans 6

IN THt HIGH COURT OF AUSTR...l\.LIA

Office of the ~egistry

Perth Lo P29 of 1987

B e t w e e n -

ARTHUR JA?-IBS HE~iPEL and

LAU:s'.ENCE ETEE:?.EDGE

Applicants

and

THE ATTORNEY-GENEF-AL

:g_esr,onde:: t

ADnlication for special

leave to appeal -

YAsm; CJ
DAh'SOt; J

GAUDROr~ J

H. e::ipel

TRAr~SCRIPT 0~ PP.OCE£DII:~GS

AT CAL~BERRA ON FRIDAY, 12 FEBRUARY 1988, AT 11.33 AM

Copyright in the High Court of Australia

C2Tl/l/AC 1 12/2/88

MR T.J. HIGGINS, QC:  If the Court pleases, I appear with

my learned friend, MR C.F. KILDUFF, for the applicant. (instructed by Haynes Robinson)

MR N.R. COWDERY, QC:  May it please the Court, I appear with

my learned friend, MR J.R. CARLSON, for the

respondent in the matter. (Director of Public

Prosecutions)

:MASON CJ: Yes, Mr Higgins.

MR HIGGINS:	If Your Honour pleases. May I first apply for leave to amend the notice of application for
special leave to appeal.  The amendment is - there
are three amendments basically.  The first is to
amend ground 2 so that it would add at the end of
that ground - - -
:MASON CJ:	Now, do we have a document that embodies this
particular amendment?
MR HIGGINS:	Yes, Your Honour, there is a document which is

not yet before you which embodies that amendment

which I - - -

:MASON CJ:  Do you have copies of it? It might be more

convenient for us to follow it in the form of a

document.

MR HIGGINS:  I have, Your Honour, four sets - - -

:MASON CJ: Four sets of?

MR HIGGINS:  Four sets of documents which embody not only the

amendments but the written submissions and all the

other material that would be relevant so, if I may,

I will hand all of that up and I say by way of,

perhaps, relief to the Court that it will not be

necessary to go to everything that is in that

document.	They are there mainly for reference
rather than for reading.

:MASON CJ:  It would have been more acceptable if you had used

another word rather than "everything".

MR HIGGINS:  Yes. The notice, or the amended notice, of

application for special leave to appeal is contained

in the - it is the first document after the index.

MASON CJ:  Does this include all the proposed amendments?

MR HIGGINS: Yes, Your Honour, that includes all the proposed

amendments including those amendments which had

previously been notified to the respondent.

C2Tl/2/AC	2	12/2/88
Hempel

MASON CJ:  Yes, and it includes also the original grounds?

MR HIGGINS:  Yes. Now, I will be indicating to Your Honours

something about that, the original grounds 1 shortly,

but the amended ground is that to add to 2 'and/ or

that there had been no denial of natural justice
to the applicants:• so as to dispute the question

as to whether, in general terms, natural justice

had been denied to the applicants. The intention

there is to pick up ground C in the particulars.

Ground Chad been in the original particulars but

had not been really reflected in the statement of

the ground, because the ground had merely confined

itself to bias.

MASON CJ:	Now, is the application for leave to amend opposed?
MR COWDERY:	It is not opposed, may it please the Court. We

received very late notice of these amendments -

yesterday in fact. Our outline of submissions, as

will become apparent, is based on the original

proposed grounds of appeal, supplemented with some

material relating to grounds 3 and 4. But, perhaps

I am - - -

MASON CJ:  None the less, you are prepared to meet the new

matter now?

MR COWDERY:	We are, Your Honour, yes.
MASON CJ:	Mr Higgins, the Court will grant you leave to amend.

There is of course no implied warrant in relation

to that grant of leave to amend.

MR HIGGINS: Warrant is perhaps a word that is appropriate

in these proceedings, Your Honour, in view of the

nature of them. Your Honours, it is the intention

of the applicants to argue only for ground 2C,

notwithstanding the other grounds that are there

stated. In other words, it is not proposed to argue

that the treaty between Australia and Israel has

been implicitly abandoned by reference to the

Israeli law which prevents the extradition of persons

who are Jews from Israel.

MASON CJ:  So you are arguing reasonable apprehension of bias

and denial of natural justice.

(Continued on page 4)

C2T2/l/SR	3	12/2/88
Hempel

MR HIGGINS:  I intend to confine it even further than that,

Your Honour, and argue merely that in view of the

fact - - -

MASON CJ: Denial of natural justice.

MR HIGGINS:  - - - of ground C, that the appellants were

denied the right to rebut the case against them,

that there had been a denial of natural justice

as a result of that.

MASON CJ:	I see.
MR HIGGINS:	So that, Your Honours, no doubt will come as

some relief in terms of the material that it would

otherwise be necessary to go through. Your Honours,

perhaps I could start with a bit of background

in relation to this matter. The submissions do

go into it in some detail, including the

legislative provisions which are relevant and I

do not propose to go over them in that detail.

But suffice to say that the case involves a ship

known as the Orionia which was purchased by the -

MASON CJ:  Mr Higgins, we can relieve you of a detailed

statement of the background because members of
the Court have read the papers, so we are broadly
familiar with the history of the matter but if
you wish to emphasize any aspect of it in order

to develop your argument, by all means do so.

MR HIGGINS:  Thank you, Your Honour. The only purpose of

going through this was to say that the ship had

belonged to the two applicants. They had purchased

it on behalf of themselves and a group of other

persons. They had refitted it at a cost of something

like £300,000 and borrowed part, a sum of £25,000,

to finish the refit. That is where it started

so far as their difficulties were concerned because

they then ended up in Israel, having gone there

in order to - notonly because the lender resided

there but also because it was desired to conduct

the boat as a business as well as the place where

these people resided. So it was their home and

their business at the same time.

The lender and the group who were represented

by Messrs Hempel and Etheredge came into dispute

and ultimately that dispute was settled by a payment

of $150,000 - calculated in US dollars. That had

to be borrowed and it was borrowed from a group

of Israeli businessmen who borrowed the whole

or part from a finance company which they owned
or controlled and that finance company has a

registered mortgage over the ship. The ship was

registered in the name of that company which was

Orionia Limited Israel and the mechanism which

C2T3/l/ND	4	12/2/88
Hempel

was then put in place was that there was an

agreement entered into between Messrs Hempel

and Etheredge and the company which these

businessmen then controlled whereby, in effect,

if they paid back the $150,000 plus expenses the
boat would be reconveyed to them, something in

the nature of an old system mortgage.

(Continued on page 6)

C2T3/2/ND	5	12/2/88
Hempel

MR HIGGINS (continuing):  That happened in June 1984,

and there were, of course, certain terms about

repayments, and so on, which were made. The boat was
sailed to Australia in 1985; in approximately August

1985.            A complaint was made by the company which

was the registered owner to the effect that the

boat had been taken from its moorings in Eilat by the
two applicants and, I suppose, by the crew of the

boat which was the other persons who resided on it,

and a warrant ultimately issued from an Israeli

district court, and that is referred to in the

request for extradition which itself is dated

27/2/1986. So that was the background to the issue of

the request for extradition.

It probably appears from the documents, but just to summarize it: there was a hearing in the

lll:lgistrates court in July and August 1986 to

it did not. That went against the appellants.

determine whether a case existed for the whether

There was a submission made to the Attorney-General

as to whether he should surrender them under

section 18A of the relevant legislation, which is

the EXTRADITION (FOREIGN STATES) ACT 1966. The Attorney-General has a further discretion once a

magistrate has decided that a case exists for

surrender.

MASON CJ:	And then the AD(JR) ACT. is superimposed on - - -
MR HIGGINS:	Upon that, yes, and a submission was put to the Attorney as to whether he should or should not
surrender the applicants for leave to appeal to
Israel. Part of the submission relied, and indeed, probably the key part of the submission relied upon
a proposition that in view of the fact that the
applicants were non-Jews, that they would be
discriminated against in Israel, both generally,
I suppose, and more particularly in handling
criminal proceedings in the State of Israel, There
are a number of particulars of that which were
given.  They included that the proceedings
were conducted in Hebrew;  they included the
fact that the two applicants were non-Hebrew
speaking; they included the fact that they feared that they would not be allowed access to interpreters and they included the fact of discriminationthat
has been mentioned, particularly in view of the
fact that those with whom they were substantively
in conflict were Israeli citizens.

(Continued on page 7)

C2T4/l/HS	6	12/2/88
Hempel

MR HIGGINS (continuing):  Now, those grounds were supported

by a number of statements and affidavits from various

persons who deposed to the discrimination against

non-Jews in Israel and that was, therefore, a fairly

extensive submission or part of the submission that

was put to the Attorney-General.

The Attorney-General's consideration of whether

to sign the surrender warrants was, in fact, delayed

by virtue of an appeal which had been filed against

the magistrate's decision. Mr Justice Burchett gave

judgment on that on 10 December 1986 and a Full Court

of the Federal Court gave judgment on an appeal from

that decision on 22 May 1987. The Attorney-General

received two submissions following the submission made

by the applicants. Both submissions came from

departmental offices and I believe,but I am not sure

of this, that both were signed by the same officer

although whether the same persons were involved in

its preparation is not entirely clear but, certainly,

there were two submissions from departmental officers.

On the connnenting on and advising the Attorney-General in respect of those submissions which have been put on

behalf of the applicants. The first of those submissions

made no particular reference to any other material but

was, in effect, a connnent on what the applicants had put

forward. There was, then, a supplementary submission

which was put to the Attorney-General, again, by the

departmental officers which made reference to discussions

or to material which had been obtained from a

Mr Walters who was a member of the West Australian

bar. It was a brief submission. It is only two
pages and, unfortunately, it is not included in the

documents Your Honours have we could not find a copy

of it but my learned friend, Mr Cowdery, has very

kindly arranged for some further copies of it and,

if I may, perhaps I could tender that in support of

the application.

MASON CJ:  Yes. Do you have three copies of it?

MR HIGGINS:  I do, Your Honour, or Mr Cowdery does, I should say.

MASON CJ: Yes.

MR HIGGINS:  He should have the credit for this. There are six

there but Your Honours probably will not need that many.

MASON CJ: 

Thank you.

MR HIGGINS: 

Now, the relevant part is the part that related to

the issue raised by the fugitives as they were then
kindly called in respect of the submission about

prejudice, their fair trial being prejudiced in Israel.

C2T5/l/SH	7	12/2/88
Hempel

MR HIGGINS (continuing):  And paragraph 2 of the submission

lS:

Paragraph 30 of submission no 1895 deals -

and that is the original submission -

deals with the contention of the fugitives
that the litigation language of Israel is

Hebrew and that they will not be provided with interpreters.

3.       I have ascertained from

Mr John Myer Walters of the Western

Australian Bar that whilst proceedings are

usually in Hebrew all iudges and lawyers also speaking and criminal proceedings are conducted
speak English and argument is frequently in

in Hebrew, the defendant would, as a matter

of course, have access to an interpreter.

Then follows a comment that:

Mr Walters, while now practising as a barrister in Australia, was admitted to the Israeli

Bar in February 1981 and practised there for

some two and a half years.

5. Sub-paragraph (b) of paragraph 30 relates

to the fugitives statement that documents

vital to their defence are in the possession

of the complainants.

6.       Mr Walters has confirmed that the information

given in the previous submission is accurate.

Specifically, he states that the rules of

evidence in criminal iustice matters are similar

to those in Australia·. He confirms that Israel

is basically a common law country and that

a defendant would have the right to subpoena

documents required for the presentation of

a proper defence in a criminal trial.

And then there is further comment which is not

relevant for present purposes. Now, the information

which was apparently obtained from Mr Walters was

not at any time, and this would be common ground,

referred to either of the applicants or anybody

advising the applicants to see whether there was

any material which they could put in rebuttal of

it. They were not advised that that material had

been before the Attorney-General. So that the point very simply is that the case they had to meet in respect of extradition was in that quite

important respect not put to them to answer.	They
had made a submission and produced material in
support of it.	They had, of course, had no answer

C2T6/l/MG 8 12/2/88

Hempel (Continued on page 8A)

to that particular submission at the time when

this document was present. And up to the time when the document was answered by the warrants

being signed, and they were signed on 19 June 1987, they had no opportunity to commentupon or meet or

admit the matters that were referred to in that

submission. So the point very briefly is, as a

result of that omission, they have been denied

natural justice.

(Continued on page 9)

C2T6/2/MG	8A	12/2/88
Hempel

MASON CJ:  Now, can you identify for us the particular part

of the applicants' submission to the Attorney-General

to which this documents constitutes a response?

MR HIGGINS:  Yes, Your Honour. First - the submission was based

upon a statutory declaration which is at page 106,

or it is described as page 106 in the additional
material which Your Honours have. It is, in fact,

the document described as "Statutory Declaration".

MASON CJ:	106?
MR HIGGINS:	Yes, that is the pagination on it and it is

item 2 in the documents part C of the matters which

have been handed to the Court.

MASON CJ: Now, whereaburn:s is it in the file, because the

numberings of the pages is according to some system

that I am totally unfamiliar with.

MR HIGGINS: Well, I am not even sure that I would hold it out

as a system, Your Honour.

MASON CJ: That is it - it is about half an inch down,is it?

MR HIGGINS:  It is in part C which are the documents and it

is the second document. I am sorry, I am incorrect

about that it is the fourth document - it is the

statutory declaration of the two applicants dated

15 August 1986.

MASON CJ: Yes, I have it now.

MR HIGGINS:  It has got 106 at the top of it though that is

not,of course, a pagination which follows - now

the relevant part of that document is basically

contained within paragraph 3 of it where the

which they suggest would lead to they not being	applicants set out the particulars of the prejudice
accorded a fair trial in Israel. The first :--{a)
was the language of litigation being in Hebrew and that Hebrew interpreters are not provided; there is a reference in (b) to the critical documents
being in the possession of their adversaries; (c)
relates to the question of assets including the fact
that their assets were then being held, that is
their personal assets, in the Queen's Warehouse
at Albany and there is a reference,too,to the fact
that during the course of civil litigation they complained of the conduct of an Israeli solicitor.

(Continued on page 10)

C2T7/l/AC	9	12/2/88
Hempel

MR HIGGINS (continuing): There is then reference in 5 to

discrimination against non-Jews. There is a

reference to prejudice from material which had been

thought to have been provided against them by the

American Government. There is a reference in 7 to:

the International Covenant on Civil and

Political Rights.

And then there is further reference to:

the conduct of litigation in Israeli

Courts -

in 8. And there is then a reference to some of

the factual matters which probably are not material

here n 9, which relate dispute between the

applicants and what they have described as their

"adversaries" in relation to the dispute over the

ownership of the boat.	And they complain finally,
that:

what should have been no more than a civil

case has been turned into a criminal case.

That was the statutory declaration and there were accompanying documents which we have not attempted

to reproduce because they are far too bulky which set out

statements frcm persons who would support those particular

contentions. And that was the issue to which the

original submission put to the Attorney addressed

and that is the next document in the bundle of

documents:~ the comments from the Attorney-General's

department on the Hempel and Etheredge surrender

warrants.

That particular issue of litigation in Israel

under the particulars of prejudice had been dealt

with in that submission at paragraph 30, as the

supplementary submission indicates.	And all that
was said originally about that was:

the litigation language of Israel -

this is in (a)

is Hebrew and they will not be provided with

interpreters. This claim was repudiated by

a witness in the proceedings before

Mr Moore, SM, and the evidence given by that

witness was considered by Burchett J. in

his judgment.

His Honour's comments ..... are set out in

paragraph 25 above.

C2T8/l/SR	10	12/2/88
Hempel

The evidence given by the witness Ecker

was to the effect that the civil proceedings

which had preceded the removal of the vessel

from Israel had in fact been conducted

in English.

There is a reference there to what Mr Justice Burchett had said and the appeal from the magistrate's

decision and a support expressed for that view

and a recommendation:

that you should not be satisfied that

this issue should preclude surrender.

And it was that matter which apparently was made

the subject of a further submission which has

just been handed up.

MASON CJ:  Were the applicants given a copy of the initial

submission to the Attorney-General, prepared by

an officer of the Department?

MR HIGGINS:	No.
ViASON CJ:	So that all the new document does is to provide

additional confirmation of a claim made in the

initial submission put the Attorney-General - - -

MR HIGGINS:	Yes.
MASON CJ:	- - - about which no complaint is made?
MR HIGGINS:	Yes, that is so because although it was put in

as an assertion that that material or that contention

of the applicants should be rejected, there was,

of course, no factual material put to the Attorney

in that submission.

(Continued on page 12)

C2T8/2/SR	11	12/2/88
Hempel

MASON CJ:  There was a reference to evidence given by a

witness in proceedings.

MR HIGGINS:  Yes, that was the only reference. Now that

witness was not identified -

MASON CJ:  And the claim was made that the evidence given

by the witness in the proceedings repudiated the

applicants' claim that interpreters were not

provided.

MR HIGGINS:  And that the litigation would be conducted 1n Hebrew, yes.

DAWSON J: Is that what the witness said?

MR HIGGINS:  I understand, although it was directed to a

different issue, yes.

DAWSON J: And, of course, that was known to the applicants.

MR HIGGINS:	One presumes it would have been known to that extent though the reliance upon it would not, of
course, have been known or the detail which was
later provided would not be known.  So it is not
entirely a case where nothing had been said about
it previously but the particulars which were
provided the Attorney in the supplementary submissions certainly were not known.
MASON CJ:	But I suppose on a question of natural justice

of this kind, the matter arises in this way: the

applicant makes certain clains in the submission

that the applicant prepares that is put before

the Minister. The departmental advisers then

prepare material in written form which they put
to the Minister rejecting and refuting the various

points made by the applicant in his or her material.

One does not expect ordinarily that that material

will be put to the applicant with a view to the

applicant responding to it by way of reply unless

the material put by the departmental officers

raises a new issue, not anticipated by the

applicant. In particular, an issue which relates

to some matter personal to the applicant. Now,

in those circumstances, and KIOA is an illustration,

one would expect the Minister, according to the

rules of natural justice, to give the applicants
an opportunity of responding to the new material.

But this is not new material in that sense, is it? It is merely a response to and a rejection

of the claims made by the applicants.

MR HIGGINS:  We would respectfully submit this, that there

are, in fact, two aspects of it which can be a denial of natural justice. The first is where

a new issue is raised which may depend on no

additional facts but be a new issue of law or	a new issue
as to matters relating to discretion.

C2T9/l/ND	12	12/2/88
Hempel

MR HIGGINS (continuing): It would be unfair to an applicant

to have raised that issue with the Attorney-General

without the applicant having been given a proper

opportunity to respond to it but there is a second

category and that is where a question of fact is

raised, a new question of fact, such as that an

expert has expressed an opinion or a person who is put forward as an expert has expressed an opinion.

Now, it may be that the applicants would wish to

say in respect of that that person's expertise should

be challenged or that person's expertise may be

all right but their expertise is out of date or

that they are simply factually wrong. Now, what

they have been denied is the opportunity to answer

what amounts to a question of fact. It is really

adducing the evidence of an expert witness after the case is over and while the judgment is being

considered by the presiding officer. If the
presiding judge is regarded as equating with the

Attorney-General in this case, the Attorney-General has received the submission, received advice as to

how his mind should be informed and, of course, may

reject or accept that advice as the case may be but

as received as part of that material, a report of

a deposition which amounts to expert evidence. So

he has, in effect, heard a witness after the case has

closed without the party who made the original

submission knowing of it or having a chance to

respond to it. So, it is in the category of an

additional matter of fact that this case falls.

DAWSON J: That is making it pretty formal, is it not? I mean,

what if the departmental officer had simply said,

"Well, I believe that the litigation will be conducted

in English" and the basis of his belief were the

inquiries which he had made but he did not reveal

those.

MR HIGGINS: Well, that would probably suffer from the defect

that apparently was, one assumes, suffered in this

what the basis was for that statement that was made	case and that is that it was necessary, obviously, to put in a supplementary submission to indicate	in the original document. In other words, the
Attorney appears not to have been prepared to act
at the time on that recommendation solely but, rather,
wished to be advised as to what the basis for that statement was.

(Continued on page 14)

C2Tl0/l/SH	13	12/2/88
Hempel

MR HIGGINS (continuing):  And in that case,if the officer

had held himself or herself out to be the expert,

the same objection would be made.

MASON CJ:  Mr Higgins, I must say it strikes me almost as

a false issue in a way. The claim made by the

applicants does not seem to be that provision is
not made by the legal system in Israel for the
giving of evidence through interpreters; the claim

seems to be that the court itself does not provide

interpreters if you read literally what appears

in paragraph 3(a) of the applicants' declaration.

MR HIGGINS:	Yes.
MASON CJ:	When you read the submission made to the

Attorney-General, the additional submission, the

author of it seems to say that the defendant would,

as a matter of course, have access to an interpreter.

Now whether that is really saying that he would have

access to a court-provided interpreter or whether

he would have the right to give his evidence through

an interpreter is by no means clear.

MR HIGGINS:  Yes.

MASON CJ: But I find it very hard to believe that in any

civilized country provision would not be made for

the giving of evidence of a person who could not

speak the official language of the country through

an interpreter.

MR HIGGINS:  The question may well be, and one does not know

this because the chance to respond to it was not

given,but it may well be that interpreters are

available if you are prepared to pay for them.

MASON CJ:	Yes.
MR HIGGINS:	That may be the system and to that the applicants

might well have said: "Well, that is fine but we do

not have any funds with which to pay interpreters"	and, then, that would raise a question as to whether	they would be, in those circumstances, provided with
an interpreter by the procedural laws of Israel. If
the answer is no, they would not be under those circumstances, there may be a substantive issue of unfairness would then arise and might well sway the
Attorney in relation to the decision he would
ultimately make. But not being confronted by what
had been said, of course, the applicants were in no position to be able to note the subtlety, or otherwise, of the expressions which were used and to
see how it compared with the position as they understood it.

C2Tll/l/AC	14	12/2/88
Hempel

MASON CJ:  Can you refer us to what the Full Court said

about this and identify for us where the Full

Court went wrong?

MR HIGGINS: 

As to that, Your Honour, the matter does not

appear to have been raised in the Full Court. It was
raised before Mr Justice French, but does not appear
to have been raised in the Full Court.

Mr Justice French did deal with it.  At page 33 of

the application book His Honour Mr Justice French

deals with that question and there had been in the

original grounds a complaint about this matter and

it had been put, as I think I have indicated, as to

the issue of bias, which it does not seem properly
to relate to. Nevertheless, a complaint was in
substance made about the reliance upon Mr Walters'

information and at page 33 His Honour refers

to that.  He says:

The second complaint about the reliance upon

Walters' information is that the Attorney

failed to consider that his previous

association with the matter as a witness for

the Director of Public Prosecutions in the

extradition of proceedings would give rise

to a reasonable apprehension of bias.

Woltring, it was said, should have sought advice from an impartial source.

Now, His Honour deals with that aspect of it

and - - -

MASON CJ:  That is not the point we are concerned with.

MR HIGGINS:  That is not the point which is now taken

in respect of it. One can only say that it

was raised in that form and there	is more about
it on the preceding two pages which

MASON CJ:  What pages are they?

MR HIGGINS:  At pages 31 and 32 it is set out in more detail.

It was stated at page 32 that there were two
complaints about the evidence:

The first was that they were afforded no

opportunity to reply to what Walters said on

the point. As to that, it should be noted

that Walters was cross-examined on the

hearing before the magistrate.

DAWSON J:  Walters was the witness?

MR HIGGINS:  Walters was the witness. So I presume that

in the first submission when a witness is referred
to that would have been, one would think, a

reference to Mr Walters, and - - -

C2Tl2/l/HS	15	12/2/88
Hempel

MASON CJ:  So that the proceedings before the magistrate,

Mr Moore, were the proceedings that took place in August of 1986 in which Mr Walters gave evidence.

MR HIGGINS:	July and August of 1986, yes.
MASON CJ:	So that the initial submission to the

Attorney-General was specifically referring to the evidence that Mr Walters gave.

MR HIGGINS:	The first did not specifically refer to it.
MASON CJ:	It identified it.
MR HIGGINS:	I see. We think it may have been Ecker.
MASON CJ:	So all that the additional submission has done, in effect, is to state the effect of the evidence given by Mr Walters before the magistrate, there
being, as it were, the reference or identification of his evidence in the initial submission to the Attorney.
MR HIGGINS:	I do not know if that correctly describes what

Mr Walters said. There was a witness Ecker, was there

not? I understand, Your Honour, that although

Mr Walters gave evidence - my friend, Mr Cowdery,

advises this - that he did not give evidence about

these matters. A Mr Ecker gave some evidence about

such matters, the litigation language of Israel,

and I suppose one could say that it was in rebuttal
of what he had said that the additional material

was provided to the Attorney-General by the

applicants.

Mr Walters was a witness. He was cross-

examined, but he did not give evidence about

the matters referred to in the supplementary

submission.

GAUDRON J:  Mr Higgins, would I be correct in thinking that

the question of the language and the availability of

interpreter~ was relevant only to a general

discretion 1n the At.torney-General not to exercise

a statutory power other -

MR HIGGINS:	That is correct, Your Honour.
GAUDRON J:	Yes, and has no other bearing in terms - - -
MR HIGGINS:	No, and indeed, the question before the

magistrate could not include such a general matter.

MASON CJ:  No.

C2Tl2/2/HS	16	12/2/88
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MR HIGGINS:  The magistrate had to be satisfied, if he was

not going to make an order, of matters that were

quite specific, such as whether the fugitive would

be:

prejudiced at his trial, or punished, detained

or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions -

for example, which is in 14(b).

MASON CJ: Yes, but I thought that it was conceivable that

in endeavouring to establish the grounds that were

raised before the magistrate this may have been

one of the matters that was litigated on the way,

but you have said that is not so.

MR HIGGINS: It was an issue or a subsidiary issue which

was designed to try and assist the magistrate to enough and the issue, of course, is one of personal
the view that the fugitives should not be surrendered.

liberty so it is, in that sense, a very important

matter. It is a matter in which the applicants

have, of course, been and still are in custody

since their original arrest. The issue of

consideration of this question of the fair prejudice

to their fair trial in Israel is, it would be fair

to say, a common ground and it is a matter the

Attorney may properly consider.

It is common ground that the Attorney-General

would be required to exercise his power in accordance
with the principles of natural justice and it is

the contention of the applicants that natural justice

has been denied. Those, briefly, are the submissions

in support of special leave. If the Court pleases.

MASON CJ:  Thank you, Mr Higgins. Mr Cowdery, what you say

about this.

MR COWDERY: If Your Honours please. It may be of some

assistance initially just to confirm the sequence

of events because of that slight confusion that

did arise. In the hearing before the magistrate,

a Mr Ecker gave evidence of the language of

litigation in Israel. He was cross-examined but

only briefly on behalf of the applicants. In those

proceedings, Mr Walters also gave evidence but

on more formal matters, the effect of some company

documents and certificates that had been produced,

something of that sort. And he had not been

questioned in chief or in cross-examination on

the subject of language.

C2Tl3/l/ND	17	12/2/88
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The second submission, so called, the two-

page submission made to the Attorney on

18 June 1987, in our submission, was merely

confirmatory, both by its nature and by its terms,

of the first submission that had been made at some

earlier time. Mr Woltring, the author of the
submission, in paragraph 6 said:

Mr Walters has confirmed that the information given in the previous submission is accurate.

And so it appears quite clearly that Mr Woltring

had gone back to Mr Walters who had been a witness

but on formal matters only, confirmed what

Mr Ecker had said in the course of his evidence,

which had been relayed in the earlier submission,
and then made the second submission to the

Attorney.

In my submission, although when acting

pursuant to section 18A of the EXTRADITION

(FOREIGN STATES) ACT, the Attorney was obliged

to act in accordance with the rules of natural

justice. There was no breach of the requirement

in those particular circumstances in this case.

This was an issue which had been raised by the

applicants, not at the time of the magistrate's

hearing but subsequently. There had been an

opportunity at the time of the magistrate's hearing

to raise the matter had they so wished, because
there were witnesses called who were in a position

to give evidence about it.

But, in any event, it was not raised until

the statutory declaration. The factual issue was

raised by them, it was addressed by the Attorney

in the first submision that was made. For some

reason the question remained a live issue for the

Attorney and the second submission was produced

for that reason.

(Continued on page 19)

C2Tl3/2/ND	18	12/2/88
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:MR COWDERY (continuing): It was confirmatory only. It

raised no new factual material. It raised no

matter that the applicants themselves might have

an interest in responding to or rebutting or

commenting upon. They had not been denied

previously an opportunity to do it. Indeed,

it was an issue that they had raised themselves

in the statutory declaration which was part of the
material submitted to the Attorney for his

consideration in the exercise of his discretion

and, in those circumstances, quite simply, in

our submission, there has not been a failure

to hear the applicants on a matter which was

material to the exercise of the Attorney's

discretion.

DAWSON J: Would the rules of natural justice ever require

the opportunity for a reply to be given?

:MR COWDERY:  Not a reply to a submission of this kind, if

Your Honour pleases.

DAWSON J: That is what I am trying to isolate. Where would

a reply be required?

:MR COWDERY:  Only if a submission raised a matter which, to

the knowledge of the Attorney, for instance, had

not been addressed by the applicants and which they

had had no opportunity to address. If a matter of

that kind, whether a matter of law or of fact, arose in the course of a supplementary submission, then it

would be incumbent on the Attorney, in. our submission,

to seek the comments of the party affected.

GAUDRON J:  Even though the Attorney's function at that stage

is specifically to consider whether there is any

matter by reason of which he should refuse - well,

his function, I put it too •. broadly - his function

is simply that of determining whether to refrain from

exercising a power clearly available to him so that,

in essence, he is only required to be satisfied, I

suppose - if he is to exercise that discretion, he

has to be satisfied of some matter in favour of those

who seek that discretion.

:MR COWDERY:  Yes, he does, if Your Honour please, and the matters

that he must address are circumscribed to some extent

by section 18A of the Act.	It is under that section
that he is acting at that point in time and it	.

provides in subsection (1) that where the appropriate

time period has expired and various things have or

have not happened:

The Attorney-General may -

(c) if satisfied that the fugitive is liable

to be surrendered .....

C2Tl4/l/SH	19	12/2/88
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and - and this is the area in which we are dealing

at the moment -

(d) unless of the opinion that -

(i) the offence to which the requisition for the surrender relates is ..... an offence of a

political character;

That is not relevant for these purposes -

Or (ii) the requisition for the surrender has in fact been made with a view to try or punish the fugitive for an offence of a

political character.

MASON CJ: But we are not in that area, are we?

MR COWDERY:  No, not in that area either. So we

GAUDRON J:  We are strictly in the "may".

MR COWDERY: In the "may", yes. Yes, so his discretion

is at large in respect of a matter of this kind.

MASON CJ:  But that does raise a point, does it not? I mean,

in a case where, in a sense, the onus is upon an

applicant to establish a case that will result in

say, the minister making an order, one can readily

see that perhaps only in exceptional or unusual

situations will material in reply be of such a

kind as to impose a duty on the Minister to give

the applicant the opportunity of responding to it

because one would expect the applicant to place

all the material before the Minister in the case

in-chief, the principal application,but in situations

where there is not an onus on the applicant and I am

using "the applicant" to cover people in the situation
of the applicants in the present case, may the situation

not be somewhat different?

(Continued on page 21)

C2Tl4/2/SH	20	· MR COWDERY, QC	12/2/88
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MR COWDERY:  The onus is on the applicants at earlier stages 1n

the proceedings to - - -

MASON CJ:	What about here?
MR COWDERY:	Well, at this stage, we would submit that the

onus remains on the applicants to raise matters

which are known to them which may affect the

exercise of the Attorney's discretion. They did

raise this matter. It was investigated by the

Attorney and it was investigated in a way and with

such a result that no further recourse to the applicants

needed to be made. No fresh material emerged;

no different account was given that had not been given before the magistrate where the applicants

were present and there was simply no new material,

especially material peculiarly within the knowledge

of the applicants, in respect of which the Attorney

needed to return to the applicants.

MASON CJ: It would not have to be peculiarly within their

knowledge, would it?

MR COWDERY:  No, no indeed, Your Honour, it would not have

to be but there would be a greater case, a more

compelling ground to return to the applicants if

it were a matter which the applicants were in a

position particularly to comment upon, something

personal to them or some activity by them that

was alleged or something of that kind.

MASON CJ: Well, where it could be expected that they would

have a contribution to make on the topic rather

than having knowledge that was peculiar to them.

MR COWDERY:  Yes, indeed, Your Honour. Your Honour, the

respondent agrees, with respect, that it is a

situation in which there is a requirement for natural

justice to be observed. Natural justice, of course,

will vary or the application of those rules will

vary depending on the circumstances. And indeed,

as the cases showed, depending on the particular

case which is being considered and every case must

be considered in its factual context. Our submission

is that the second submission raised no new material,

that the applicants had not had an opportunity to comment upon. Indeed, it was material that they themselves - or a question that they themselves

had raised. A question they had had the opportunity

of testing before the magistrate in 1986, through

both Mr Walters, the source of the confirmation

and Mr Ecker and there was no obligation on the

Attorney in those circumstances of this particular
case, in our submission, to identify the communication
with Mr Walters and to seek further submissions

in respect to it.

C2Tl5/l/MG	21	12/2/88
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MASON CJ:  But it is not really right to say they had an

opportunity of testing it in the proceedings before

the magistrate, is it, because it was not a relevant

issue before the magistrate as such?

MR COWDERY:  Not as such, Your Honour, no, it was not. matters that the magistrate was obliged to inquire
into are set out in section 17 of the Act. The

Subsection (6): there have to be produced to

the magistrate the documents that are set out there.

There is no question of language or prejudice

implicit in any of that.

(Continued on page 23)

C2Tl5/2/MG	22	12/2/88
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MASON CJ:  And all the magistrate has to do is to satisfy

himself that the person is liable to be surrendered?

MR COWDERY:	Yes.
MASON CJ:	And that raises an issue under section 12 -

section 14, I suppose, although that is rather
addressed to the Attorney, but none the less,
presumably, is a matter that the m~gistrate could

inquire into because it may involve a limitational

qualification or exception upon the class of

person who is liable to be surrendered?

MR COWDERY:  Yes, the magistrate is not obliged to inquire,

indeed not permitted to inquire, perhaps, into

matters of this kind. They fall for determination

by the Attorney, either in first issuing the

notice to the magistrate or in later.exercising his

power in section 18A. The other aspect of the

matter, if the Court pleases, is this: that while

this is a matter that was raised a little indirectly

before Mr Justice French, it is not a matter, in

our submission, that was raised in the Full Court;

it was not the subject of one of the grounds of
appeal; it was not the subject of any finding by

the Full Court. It is not, therefore, a matter

that arises properly and strictly on an appeal

from the judgment of the Full Court to this Court

or on an application of this kind.

Now, if Your Honours please, the outline of

submissions that we had prepared, of course, addressed

as far as we were able all of the grounds that

were initially proposed. I have confined my

submissions only to the very narrow ground which is

now pressed - the effect of the second submission to the Attorney. In my submission, there has not

been raised a real question of denial of natural

justice for the reasons that I have already submitted

and for the other reasons, in our submission, this

application should be dismissed.

MASON CJ: Yes, Mr Cowdery. Yes, Mr Higgins?
MR HIGGINS:	Your Honours, with respect, there is really only

one point which has been made and I suppose that

is reasonable enough seeing as only really one

point was made against it. But it is difficult to

see, with respect, why this case is different from

the case of DIXON V THE COMMONWEALTH, which is

referred to in the cases which have been handed

up to Your Honours. In that case, which is reported

in - - -

MASON CJ: Which case is this?

MR HIGGINS: This is one of the cases in the bundle of

supplementary material which I handed to Your Honours.

C2Tl6/l/SR	23	12/2/88
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MASON CJ:	I see, yes.
MR HIGGINS:	It is the first of the cases which is in the

bundle. It is reported in 55 FLR 34. It is a

decision of the Full Federal Court, the Chief Justice

and the Chief Judge Mr Justice Bowen and	·
Justices Dean and Kelly.	Now in that case the

relevant part is the part that related to the

dismissal of Mr Dixon. At that time the custom in

the departmental structure was to, if someone

warranted dismissal, if they fell within the

statutory powers to be dismissed, then they were

asked - well, the original system was to do nothing

but dismiss them, but then natural justice reared

its head and it was thought sufficient to

comply with that if the person was asked to give

any reasons why they should not be dismissed.

(Continued on page 24)

C2Tl6/2/SR	24	12/2/88
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MR HIGGINS (continuing):  Mr Dixon was asked to give reasons to

his chief officer why it should not be recommended to

the Public Service Board that he be dismissed. He

gave those reasons, made a submission, asked to be

advised of any material - though perhaps he need not

have done so - that would be relied upon in

contradiction of his submission, but received no

response other than in due course to be told he had been dismissed. Subsequently, it appeared that the department had made a recommendation to the Public

Service Board, much in the same way as here. The

departmental officers made a recommendation to the

Attorney-General. In the course of that there had been

a throw-away line or one or two paragraphs which

suggested that he may have done something of what he

was then accused of before. By way of background to

that he had, in fact, done a foreign order in the

printing office. He had printed off some material for

his own purposes, he had been caught in the act, he

had been taken before a magistrate, he had been found

guilty and given a 556A conditional discharge.

So he had rendered himself liable to be dismissed under the PUBLIC SERVICE ACT and the facts were not

really in dispute. He had been with them for 20 years

so the question then was whether he should be dismissed.

He put the reasons why he should not be dismissed in

relation to the circumstances of the offence, his long

loyal service and all those matters but what he did
not know was that in the submission which the

department had put there was reference made to him

having done it before.

DAWSON J:	But that would have been a new matter, would it not?
MR HIGGINS:	A new factual matter - - -

DAWSON J: Yes, you see that is rather -

MR HIGGINS:  But he had addressed that issue. He said: "I have

previously been blameless".	He had addressed the
issue and one might think that if he had been involved

in these things before it would be a matter peculiar within his knowledge. Now, of course, he might well have denied the truth of what the departmental

submission had said but he was never given any chance

to because he never saw it.

DAWSON J: And did not know about that allegation?

MR HIGGINS:  And did not know of that allegation. Now, with

respect, it is analagous here because here one has a

situation where, on a matter that was not strictly

in issue before the magistrate - there had been

peripheral mention of the litigation language of

Israel but from a Mr Ecker - that issue had been thought

to be relevant to the Attorney's decision.

C2Tl7/l/AC	25	12/2/88
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MR HIGGINS (continuing): The Attorney had had that issue

addressed to him by a great deal of material.

DAWSON J: It was raised by your client.

MR HIGGINS:  Yes, indeed. They raised it and produced factual

evidence in support of it but they produced a range

of experts or persons they put forward as experts or who had personal experience of the issue they raised

and they were answered by another witness. Now, that

is additional, factual material and, as in the case

of DIXON where the dismissal was, of course, set

aside as having been the result of, or possibly the

result of, a breach of natural justice, then it would,

with respect, seem that the situation is the same

here. There really is no relevant difference. This

is an important matter as I think was pointed out

during the course of my submissions. The fact is

that there may have been something in the way in

which Mr Walters was asked and the way in which he

responded which did not present the question fairly

to the Attorney.

DAWSON J:  Could I ask this question? There is nothing in the

material which shows what additional material your

clients would want to put before the Attorney, is

there?

MR HIGGINS:  What they would want to put before him?

DAWSON J: Yes.

MR HIGGINS:  No, there is nothing in the material which suggests

what they would put.

DAWSON J:  Is it incumbent on you in an application for special

leave such as this to demonstrate what it is that you

wanted to put before him and were prevented from putting

before him in order to show that there was a denial of

natural justice?

MR HIGGINS: No, I submit not, Your Honour. Indeed, in DIXON's

case, the question was not even raised.

DAWSON J: Well, that is a slightly different case.

MR HIGGINS:  That may be but all one can say is that, having

regard to what is said to have been Mr Walters'

opinion, it would be very surprising indeed if the

two applicants were not prepared to and did not wish

to put something in response, in rebuttal, be it a

more qualified expert or be it a question as to the

true application of what that witness had been asked

by the officers of the Department and an interpretation

of his response.

C2T18/l/SH	26	12/2/88
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MR HIGGINS (continuing): With respect, it is not incumbent

on the applicants to bring forward the material

they would have put if they got the chance but

sufficient to say that there is material which

could obviously be put if they got the chance.

MASON CJ:  Now, Mr Higgins, you have got to face up to this

problem. It is conceded that the Attorney is

under a duty to abide by the rules of natural

justice. The only question that you present is one

as to the application of the principle that applies

in the particular circumstances of this case?

MR HIGGINS:	Yes.
MASON CJ:	And you ask this Court to determine that question,

that is a question of application of principle to

the facts of the particular case, in a case in

which this point has not been clearly raised for

consideration and determination by the courts

below?

MR HIGGINS:	Yes, Your Honour, that is - - -
MASON CJ:	Not at all before the Full Court of the Federal

Court, and as I read Mr Justice French's judgment, not precisely put to him?

MR HIGGINS:  I do not have the transcript of argument,

Your Honours, but we do know that in Mr Justice French's

judgment at page 31 of the application book, it

was asserted - and that was on the first ground in

respect of the reliance on Mr Walter's evidence -

that not only was there bias, but also there was

a breach of natural justice have relied

upon information from Mr John Meyer Walters.

MASON CJ:  But that seems to have had something to do with

Mr Walters·' character as an officer of the

Director of Public Prosecutions?

MR HIGGINS:	There was, if Your Honour goes to page 32 to the middle of it -there was and I do not know -
I have to concede how much argument was addressed
to it, but there were two complaints which were
made.  The first was:

they were afforded no opportunity to

reply to what Walters said on the point.

That briefly is what has been put here.

MASON CJ: Yes, I see, in the third last paragraph.

MR HIGGINS:  Yes, and His Honours reply to this is simply

that Mr Walters was cross-examined on the hearing

C2Tl9/l/SR	27	12/2/88
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without referring to the fact that of course he

gave evidence about other matters. And therefore,

although it is true that in theory he could have

been cross-examined about those matters that he

was later asked by the Attorney's representatives

to give an opinion on, one could hardly say that

there was a real opportunity to do so. And the

second ground upon which His Honour rejected - - -

MASON CJ:  We do not know enough about the proceedings before

the magistrate?

MR HIGGINS: That is so.

MASON CJ:  We do not quite know what the issues were that were

raised before him, although I have some difficulty

in seeing how this matter could be raised?

MR HIGGINS:  Yes, well, it would not be relevant, one would

think,except peripherally, to the magistrate's

findings.

MASON CJ:  It all depends how the applicants endeavoured

to make out the case before the magistrate?

MR HIGGINS:  Yes, but certainly it could not have been an

issue in itself. It was not an issue that was

raised in those proceedings with Mr Walters and

indeed, one can say two things about His Honour

Mr Justice French before whom it was raised.	He
made two points and the first of those, in my

respectful submission,is demonstrably incorrect:
that the right to cross-examination was a

sufficient assuaging of the offence, if one can

put it that way.	But the second ground upon which
he says is that:

Insofar as Walters spoke from his own

experience there is nothing to suggest

that what he said was incorrect.

Well there could not he because there was no
opportunity given to reply to it.	So as far as

that first complaint is concerned - yes it was

raised before His Honour, it was answered, it was

clearly there in the judgment, and with respect,

His Honour's reasons were wrong. But, of course,

it was not raised and I concede this in the

Full Court. Against that I say this is an important matter of civil liberties.

MASON CJ: Yes, the Court will adjourn briefly to consider

the course it will take in this matter.

AT 12.37 PM SHORT ADJOURNMENT

C2Tl9/l/SR	28	12/2/88
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UPON RESUMING AT 12.42 PM:

MASON CJ:  Having considered the submissions that have been

put in support of this application for special
leave on behalf of the applicants we have come to
the conclusion t~at there is not a sufficiently
arguable foundation for the claim that there was

a denial of natural justice on the part of the

Attorney-General in not giving the applicants an

opportunity to respond to the additional departmental

submission that was placed before him.

In those circumstances, the application for special leave will be refused.

MR HIGGINS: If the Court pleases.

MR COWDERY:	May it please the Court.
MASON CJ:	The Court will now adjourn until 10.15 am on

Tuesday of next week.

AT 12.43 PM THE MATTER WAS ADJOURNED SINE DIE

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