Hempel, Arthur James v Moore, Kenneth

[1987] FCA 257

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IN THE FEDERAL COURT OF AUSTRALIA	1
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WESTERN AUSTRALIA DISTRICT R?ZGISTKY 1 NO. c3A G 125 ot 1986

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GENERAL DIVISIOy )

ON APPEAL FROM THE FEDERAL COURT

OF AUSTRALIA CONSTI'I'VlWJ BY A

SINGLE JVM;E

: - B P m JAHES HEmpEL and

UWRENCE ETHEREDG E

Appellants

AND: KENNETH HOORE

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

MINUTE OF ORDER

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: Fox, Neaves and Wilcox JJ.

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PATE Ok' ORDER	:	2 2 nay 1987
WHERE MFiDE	:	Perth . - C ' . I . '. I

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Y.:k . v , ,

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THE COURT ORDERS THAT:

1. The appeal be dismissed.

2.     The appellants pay the costs of the second reapondent of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

_.__	IN T&.	FEDERAL COURT OF AUSTRALIA	)
1

~ S T E R N AUSTRALIA DISTRICT REGISTRY ) NO. m G 125 or 1986

)

GENERAL DIVISION )

ON APPEAL F R O M THE FEDERAL COURT

OF AUSTRALIA CONSTITUTED BY

SINGLE JUDGE

BFIWEEN:	ARTHUR JAMES HEMP&	and
LAWRENCE GTHEREDGE

Appellants

AND; KENNE33-I HOORE

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

CORAM: Fox, Neaves and Wilcox JJ.

m: 22 Nay 1907

THE COURT:

This is an appeal from (L judgment glven on 10 December 1986 by this Court constituted by a single Judge (Burchett J.)

upon an application made by Arthur James Hempel and Lawrence

Etheredge ("the appellants") pursuant to a,l8(1) of the

Extradition (Foreisn Statee) A c t 1966 (Cth) ("the Act") to review the validity of a decision made by a Magistrate ("the

firat respondent") whereby the appellants were committed to

prison to await the warrant of the Attorney-General of the

Commonwealth for their surrender to the State of Israel. His

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Honour dismissed the application and, pursuant to s.18(3) of

the Act, made an order confirming the decision of the firet

respondent in relation to each of the appellants. The second

respondent tohe appeal is the Director of Public

Prosecutions.

The only ground of appeal argued before the Court was

that the learned primary judge erred in law in holding that the

first respondent had not denied the appellants natural justice

in refusing applications made on 14 and 31 July 1986 for the

adjournment of the proceedings then before him.

The facts which are relevant to the determination of

the appeal are in a short compaas.

A requirition was made to the Attorney-General of the

Commonwealth by the State of Israel for the surrender of the

appellants to stand trial on charges under s.393(2) of the Penal Law 5735-1977 of the State of Israel of stealing by an agent. That requisition was made in pursuance of the Treaty

between Australia and the State of Israel ("the treaty") that

came into force on 3 January 1976. A copy of the English tex t

of that treaty I s set out in the Schedule to the Extradition

(State	of Israel) Regulations ("the regulations") made under
the Act.

By virtue of ss.10 and 11 of the Act and regulation 3(a) of the regulations, the Act applies in relation to the

State of Israel subject to the treaty. Article 111 of the

L l r a L y specifies the categories of offences in respect of which erlrddition will be granted. Article XI provides for the manner in which a request for the extradition of a person is to be made and the material which is to accompany the request. The Article provides, inter alia, that, if the person whose extradition is souqht is accused of an offence, the request is to be accompanied by a duly authenticated warrant far the

arrest of the person, issued by a competent authority in the requesting State, and "such duly authenticated documents as.

according to the law in force in the part of the territory of

the requested State in which he is found, would, or would when

taken with any other evidence that is, or will be, available in

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the requested State, constitute sufficient evidence to justify his bciny put on trial if the act or omission constltutlng the offence had occurred in that part of that territory". A

document hat, in accordance with the above provision,

accompanied a request for the extradition of & person is to be admitted in evidence in any proceeding in the requested State

for the extradltlon of the! person (Art.XI(Z)). Article XI11

prescribes the circumstances in which, for the purposes of the

treaty, a document is to be deemed to be duly authenticated.

The property alleqed to have been stolen is the vessel

"Orionia" in which the appellants arrived at Albany in the

State of Western Australia on 22 January 1986. It is alleqed

that the vessel was at the relevant time owned by an Israeli corporation, Orionia Limited and that it was removed by the appellants from its berth at Eilat. Israel without the owner's permission.

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On 23 January 1986 the appellants were arrested on

warrants issued pursuant to s.lG of the Act. They were brought before E Magistrate at Albany and were remanded to the Court of Petty Sessions et Perth. They were released on bail.

The hearing of the proceedings was fixed to commence

on 8 May 1986. The hearing was, however. adjourned until Monday, 14 July 1986. When the matter was called on for

hearing before the first respondent on that day, counsel for

the appellants applled for an adjournment for three months to

enable the appellants' legal advisers to study the documentary

material setting out the acts in respect of which their surrender was requested and to pursue enquiries in Israel. The basis of the application for the adjournment was that copies of

part of that material had been made available to the

appellants' legal advisers only on Friday, l1 July 1986 and

that copies of other material had been made available	only half
an hour before the commencement of the hearing.

"he first respondent refused the application. The

hearing then proceeded end continued on 15 July 1986. The

hearing was then adjourned until 31 July 1986 and concluded on

1 August 1986 when the firat respondent committed the

appellants to prison to await their surrender to the State of

Israel.

On 31 July 1986. counsel for the appellants made a

further application for an adjournment. This application

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related to the inclusion in the authenticated documents before

the first respondent of a copy of the particulars of the directors and shareholders of Orionia Limited as appearing in the record8 maintained by the Registrar of Companies in Israel. In supporting the application, counsel for the appellants made it clear that he was not objecting to the document as such, by w h i c h he must be taken to have conceded that It was a document

properly authenticated in accordance with the treaty between

Australia and the State of Israel and, therefore, admissible in

evlderace (s.26(1) of the Act). The adjournment was sought to

enable the appellants to seek evidence to the effect that the

particulars of the directors and shareholders net out in the

document could not properly have been procured from the

Reyfstrar of Companies in Israel and that they were incorrect.

The appellants thua sought the adjournment to enable them to introduce. if it were available, evidence contradicting part of the authenticated material on which the request for extradition

was based. The first respondent refused the application.

The primary judge concluded that no breach of the

rules of natural justice had occurred by reason of the refusal

of Cke applications for the adjournment of the proceedings.

His Honour recognised that the decision whether to grant or

refuse an adjournment was a matter within the discretion of the

f i r y t respondent in the exercise of which he was required to

weigh the various considerations of convenience, delay and

justice. In the light of the circumstance that the proceedings

had been adjourned from 15 to 31 July 1986, glving counsel a

significanC period within which tQ consider the documents and

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any submissions he wished to put in respect of them, his Honour considered that no ground f o r relief had been made out based on the short time which had elapsed between copies of the documents being made available to counsel and the commencement of the hearing.

His Honour, in refusing relief in relation to the

1dLer application for an adjournment, relied	on	5 . 3 7 ( 6 A )	of	the
Act which provides:

"(6A) h person referred to in paragraph

(6)(b) is not entitled to adduce, and a Magistrate is not entitled to receive, evidence to controvert an allegation that the person has

committed an act or omission in respect of which

the surrender of the person is requested."

Paragraph 6(b) refers to the person whose extradition	is
sought. His Honour said:

" .... the avowed purpose of the applicants came

into direct colllsion with the terms of 5.17(6A).

Counsel conceded he was attempting to draw a fine

distinction between evidence to controvert an

allegation and evidence to deprive a document,

the contents of which Jupported the allegation,

of authenticity. In my opinion, the 5u gested distinction is too fine spun to have a p ace in ! the construction of the sub-section, the

practical purpose of which is clear."

H i s Honour added:

"But. in any case, if the particular document had

been deprived o€ credit. there was ample other

evidence to support the accuracy of its

contents. "

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Wt. ffrld oursclvea in complete agreement with the

conclusions of the primary judge. The first respondent, in corlsider'ing each of the applications for adjournment made to him, wa5 eralltlsd to have regard to the purpose for which the adjournment was sought and the utility of grantinq any S U C ~ adjournment. While the opportunity which counsel for

the appellants had to consider the documents prior to the commencement of the hearing was very limited, we are unable to conclude, having regard to the overall conduct of the matter, that any procedural unfairness to the appellants has been eetabllshed.

Before us, counsel for the appellants sought to

construe s.l7(6A) In a way which would give to its language

a much more limited operation than it properly bears. The

object and purpose of the sub-section is plain. The allegation made against the appellants warn that they had commllted an act of theft by removing the vessel from the

porL of Eilat without the Owner's permission. It was in

relation to that act that their surrender was requested. first, respondent was not entitled to receive, any evidence to controvert that allegation. The allegation included an assertion as to the ownership of the vessel at the relevant t h e . The material which the appellants hoped to obtain

during the requested adjournment was plainly directed to

controverting that part of the allegation. Such material, even if obtained, could not have been placed before the

f i r ~ t respondent because of the provisions of the

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sub-sectlon. There w a s , therefore, no utility to be served

by the grantinq of the adjournment.

The appeal i s dismissed. The appellants must pay

the second respondent's costs.

I certify that this and

the preceding 7 paqes are

a true copy of the Reasons

for Judgment

Dated: 22 May 1987

Counsel for the applicants : Hr P. Johnston

and Mr J. Courtis

Solicitor8 for the appellants : Lohrmann Tindal h Guthrie

No appearance for the f i r a t respondent

counsel for the second respondent Mr R . J . H . Anderson, P.C.

and Mr K.B. Bates

Solicitor for the second respondent t Director of Public

prosecution^

Date of hearing : 20 May 1987