Klepp, H.H. v Gibb, W.P
[1988] FCA 374
•18 JULY 1988
Re: HANS HEINZ KLEPP
And: WILLIAM PATERSON GIBB and REPUBLIC OF AUSTRIA
No. V G446 of 1987
Extradition
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Jenkinson(1) and Neaves(1) JJ.
CATCHWORDS
Extradition - Extradition (Foreign States) Act 1966 (Cth) - Treaty of extradition between Australia and Republic of Austria - Regulations applying Act to Republic of Austria subject to Treaty and Protocol - Whether evidence necessary that Treaty and Protocol in force - Relationship between terms of Treaty and statutory provisions - Whether documents duly authenticated and therefore admissible in evidence - Whether duly authenticated material contained a statement or description of the offence for which extradition sought - Whether acts or omissions relied upon, if committed in Victoria, would constitute a criminal offence in that State - Whether it was open to the Magistrate to be satisfied that person liable to be surrendered - Whether a person holding office as a Magistrate in and for the State of Victoria authorized to exercise powers under the Act - Comments upon form of warrant issued under the Act.
Extradition (Foreign States) Act 1966 (Cth), ss.4(1A), 10, 11, 12, 13, 17, 18, 24, 26
Extradition (Republic of Austria) Regulations, reg. 3
HEARING
MELBOURNE
#DATE 18:7:1988
Counsel for the Appellant: Mr M.S. Weinberg, Q.C. and Mr M. Crennan
Solicitors for the Appellant: Nedovic & Co.
Counsel for the Respondents: Mr R.C. Gillard, Q.C. and Mr P.N. Rose
Solicitor for the Respondents: Director of Public Prosecutions
ORDER
The appeal be allowed.
The orders made on 18 November 1987 be set aside and, in lieu thereof, it be ordered -
(i) that the decision of the first respondent (William Paterson Gibb) made on 7 August 1987 and the warrant issued by him on that date be set aside;
(ii) that the applicant (Hans Heinz Klepp) be released; and
(iii) that the second respondent (the Republic of Austria) pay the applicant's costs of the application for review.
The second respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 7 August 1987, the first respondent, William Paterson Gibb, a person holding office as a Magistrate in the State of Victoria, by warrant issued pursuant to s.17(6)(c) of the Extradition (Foreign States) Act 1966 (Cth) ("the Extradition Act"), committed the appellant, Hanz Heinz Klepp, to prison to await the warrant of the Attorney-General of the Commonwealth of Australia ("the Attorney-General") for his surrender to the Republic of Austria. The appellant applied to this Court under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of the decision of the first respondent. The appellant also applied to this Court pursuant to s.18 of the Extradition Act for a review of the validity of that decision.
The application under s.18 of the Extradition Act was heard before the Court constituted by a single judge. On 18 November 1987, judgment was delivered and orders made dismissing the application and confirming the decision of the first respondent. From those orders the present appeal is brought.
Where the Extradition Act applies in relation to a foreign state, every fugitive from that state is, subject to the Act and to any limitations, conditions, exceptions or qualifications to which the application of the Act in relation to that state is subject, liable to be apprehended and surrendered to that state as provided by the Act (s.12). The reference to a fugitive from a foreign state is to be read as including a reference to a fugitive accused of an extradition crime that is alleged to have been committed at a place in that state or within the jurisdiction of, or of a part of, that state (s.4(2)). Section 4(1A) provides that an offence against the law of, or of a part of, a foreign state for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of the Act if, but only if -
"(a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and
(b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that part of Australia the maximum penalty for which is death or imprisonment for not less than 12 months."
Section 4(1B) provides:
"The reference in paragraph (1A)(b) to a relevant act or omission by a person is a reference to -
(a) an act or omission by the person -
(i) which is, in or in connection with the relevant requisition, alleged to have taken place; or
(ii) of which evidence is produced in connection with the relevant requisition; or
(b) any act or omission that is equivalent to an act or omission referred to in paragraph (a)."
Section 10(1) of the Extradition Act provides:
"Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state -
(a) if this Act applies in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations;
(b) if this Act does not apply in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time and may also provide that it so applies subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations."
The reference to "the regulations" is a reference to regulations made pursuant to the general regulation-making power conferred upon the Governor-General by s.31 of the Act.
Section 10(2) provides:
"The limitations, conditions, exceptions or qualifications referred to in sub-section (1) may, in relation to a foreign state, be expressed in the form that this Act applies in relation to that state subject to the extradition treaty referred to in that sub-section or, if that extradition treaty affects or amends an earlier extradition treaty, subject to that earlier extradition treaty as affected or amended by the later extradition treaty."
Section 11 provides:
"(1) Subject to sub-section (2), where the regulations for the time being in force provide that this Act applies in relation to a foreign state, this Act applies in relation to that state.
(2) Where the regulations for the time being in force provide that this Act applies in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications."
Subject to certain limitations upon the power which are not material to the present case, where a requisition for the surrender of a fugitive who is, or is suspected of being, in Australia is made to the Attorney-General by a foreign state, the Attorney-General may, in his discretion - if a warrant for the apprehension of the fugitive has not been issued under s.16 - by notice in writing in accordance with the prescribed form, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive (s.15(1)(a)). Where a Magistrate is authorized by the Attorney-General by a notice under s.15(1)(a) to issue a warrant for the apprehension of a fugitive and the Magistrate is informed, by information on oath or affirmation, that a warrant for the apprehension of the fugitive has been issued in a foreign state and is in force, the Magistrate is required to issue, for the apprehension of the fugitive, a warrant in accordance with the appropriate prescribed form (s.16(1)).
A person who is apprehended under a warrant issued in pursuance of s.16 is, unless he is sooner released, to be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended (s.17(1)). The person may be remanded either in custody or on bail (s.17(2)). Sub-sections (6) and (6A) of s.17, so far as material for present purposes, provide:
"(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) .... and
(a) there is produced to the Magistrate -
(i) In the case of a person who is accused of an extradition crime -
(A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant;
(B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and
(C) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested; or
(ii) ....
and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and
(b) the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender,
the Magistrate shall either -
(c) by warrant in accordance with the form prescribed for the purposes of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person; or
(d) ....
but otherwise the Magistrate shall order that the person be released.
(6A) A 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."
Section 26 provides:
"26. (1) In a proceeding under this Act, any document that is duly authenticated is admissible in evidence.
(2)A document is duly authenticated for the purposes of sub-section (1) if -
(a) it purports to be signed or certified by a Judge, Magistrate or officer in or of a foreign state; 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 of the foreign state or of a Minister of State, or of a Department or officer of the Government, of the foreign state.
(3)Nothing in this section prevents the proof of any matter, or the admission in evidence of any document, in accordance with any other law of the Commonwealth or any law of a State or Territory."
Section 18(1) enables a person who is committed to prison by a Magistrate pursuant to s.17 to apply to the Federal Court of Australia "for a review of the validity of the decision of the Magistrate". Upon a review under s.18(1), the Court is to have regard only to the material that was before the Magistrate and -
(a) if satisfied that the decision of the Magistrate was valid - to make an order confirming the decision; or
(b) if not so satisfied - to order that the fugitive be released (s.18(3)).
Section 18(4) permits an appeal to the Full Court of the Federal Court of Australia from an order made on an application under s.18(1). In such appeal, the Full Court is to have regard only to the material to which regard could be had by the Court that made the order from which the appeal was instituted (s.18(5)).
The subsequent procedure for the surrender to a foreign state of a fugitive liable to be so surrendered is provided for in s.18A. It is unnecessary to refer in detail to the provisions of that section. However, it should be noted that, by virtue of the provisions of s.13(2)(a), a person is not liable to be surrendered to a foreign state unless provision is made by a law of that state, or by a treaty in force between Australia and that state, or that state has given an undertaking by virtue of which the person will not, unless he has left, or had an opportunity of leaving, that state, be detained or tried in that state for any offence that is alleged to have been committed, or was committed, before his surrender other than -
(i) the offence in respect of which the person was surrendered or any other offence of which the person could be convicted upon proof of the facts on which the surrender of the person was ordered; or
(ii) any other extradition crime in respect of which the Attorney-General consents to his being so detained or tried, as the case may be.
The Extradition (Republic of Austria) Regulations (Statutory Rules 1975 No.103 as amended by Statutory Rules 1983 No.165; 1985 No.56 and 1987 No.3), being the regulations as in force at the date the matter was dealt with by the first respondent, provide that the Extradition Act applies in relation to the Republic of Austria subject to the treaties identified in the five lettered paragraphs of reg.3. The first of those paragraphs, which is the only paragraph here relevant, reads as follows:
"(a) the Treaty between Australia and the Republic of Austria concerning Extradition that came into force on 6 February 1975 (being the treaty a copy of the English text of which is set out in Schedule 1) as amended by the Protocol amending that Treaty done at Vienna on 13 August 1985 (being the protocol a copy of the English text of which is set out in Schedule 2)."
The reference in that paragraph to the Protocol amending the Treaty was inserted into the regulations by Statutory Rules 1987 No.3 as was the English text of that Protocol. Those Statutory Rules were expressed to come into operation on 1 February 1987 but were, of course, only validly made if the Protocol was then in force between Australia and Austria (see s.10(1) of the Extradition Act).
The matter proceeded before the first respondent on the footing that regard was to be had both to the Treaty which came into force on 6 February 1975 and to the Protocol done at Vienna on 13 August 1985 notwithstanding the absence of any material, either in the form of a certificate of the Attorney-General under s.25A of the Extradition Act or in any other form, establishing that on 7 August 1987 both the Treaty and the Protocol were in force. As the parties were content to have the matter dealt with on that basis, we need say no more than to stress the desirability, in a case where an extradition treaty is relevant, of there being placed before a Magistrate who is asked to exercise the power conferred by s.17(6)(c) of that Act material identifying the treaty and its terms and showing the date it entered into force and that it remains in force at the date the Magistrate is asked to exercise the power.
Reference should be made to certain of the provisions of the Treaty which came into force on 6 February 1975 as amended by the Protocol done at Vienna on 13 August 1985. By virtue of Article 1, each Contracting Party agrees to extradite to the other, in accordance with the provisions of the Treaty, any persons wanted for prosecution in the requesting State for one or more of the offences referred to in Article 3.
Article 3, so far as material, provides:
"ARTICLE 3
(1)For the purposes of this Treaty, offences for which extradition may be granted are offences however described which are punishable under the laws of both Contracting Parties by imprisonment or other deprivation of liberty for a maximum period of at least one year or by a more severe penalty....
(2)If extradition is granted for an offence described in paragraph 1 of this Article, extradition may, insofar as the law of the requested State allows, also be granted for other offences which, by reason of the penalty prescribed ...., would not otherwise be extraditable pursuant to this Treaty.
(3)For the purpose of this Article -
(a) it shall not matter whether the laws of the Contracting Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same or similar terminology;
(b) in determining whether an offence is an offence for which extradition may be granted, the totality of the acts or omissions alleged against the person whose surrender is sought, shall be taken into account and it shall not matter whether, under the laws of both Contracting Parties, the offence comprises the same elements.
(4)Where the offence has been committed outside the territory of the requesting State extradition shall be granted where the law of the requested State provides for the exercise of jurisdiction over an offence committed outside its territory in similar circumstances. Where the law of the requested State does not so provide the requested State may, in its discretion, grant extradition.
(5)Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that -
(a) it was an offence in the requesting State at the time of the acts or omissions constituting the offence; and
(b) the acts or omissions alleged would, if they had taken place in the territory of the requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State."
Articles 10, 11 and 12 should also be noted. So far as material, they provide:
ARTICLE 10
(1)Subject to paragraph 3 a person extradited under this Treaty shall not -
(a) be detained or tried, or be subjected to any other restriction of his personal liberty, in the requesting State for any offence committed before his extradition other than -
(i) an offence for which he was extradited or any other offence referred to in Article 3 of which he could be convicted upon proof of the facts upon which the request for his extradition was based; or
(ii) any other offence referred to in Article 3 in respect of which the requested State consents to his being so detained or tried, or subjected to any other restriction of his personal liberty; or
(b) be extradited to a third State unless the requested State consents to his being so extradited.
(2)A request for the consent of the requested State under this Article shall be accompanied by a copy of any statement made by the extradited person in respect of the offence concerned and by the documents mentioned in subparagraphs (a) to (d) of paragraph 2 of Article 11.
(3)Paragraph 1 of this Article does not apply if the person has left the requesting State, or has had an opportunity, throughout a period of forty-five days beginning on the day on which he was finally set at liberty in due course of law, to leave the requesting State but has failed to do so.
ARTICLE 11
(1)A request for extradition shall be made in writing. All documents furnished in support of a request for extradition shall be duly authenticated.
(2)The request for extradition shall be accompanied -
(a) if the person is accused .... of an offence - by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence;
(b) ....
(c) ....
(d) in all cases by documents setting out the relevant provision of the statute, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence; and
(e) in all cases by as accurate a description as possible of the person sought together with any other information which will help to establish the person's identity and nationality.
(3) ....
ARTICLE 12
(1)A document that is furnished in support of a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the requested State.
(2)A document is duly authenticated for the purposes of this Treaty if -
(a) in the case of a warrant it is signed, and in any other case it is certified, by a Judge, Magistrate or other competent authority in the requesting State; and
(b) it is sealed with the official seal of a Minister of State of the requesting State."
Article 19 provides that, if a document that is sent from a Contracting Party to the other Contracting Party in accordance with the Treaty is not in the language of the other Contracting Party, the first-mentioned Contracting Party is also to send a translation of the document into that language.
The Republic of Austria, through its Embassy in Australia, made a requisition in writing, dated 24 April 1987, for the extradition of the appellant. We are prepared to regard the requisition as relating to the appellant on the footing that the first respondent so found, the learned primary judge was satisfied that there was material before the first respondent to support that finding and, although we have carefully considered the submissions put to us by counsel for the appellant to the contrary, we are not satisfied that any sufficient basis has been shown for reaching a conclusion that this is a case of mistaken identity.
The requisition was accompanied by documents in the German language and what was described as a certified translation of those documents into the English language. The primary document in the German language has the heading "Haftbefehl", an expression which has been translated as "Warrant of Arrest". That document is dated 30 January 1987. It purports to be signed by Dr Anton Zelenka, described therein as a Judge of the Penal State Court of Austria, and it has attached to it two documents. One of the attachments sets out the text of what are said to be relevant provisions of the Austrian Penal (or Criminal) Code, namely paragraphs (or sections) 57, 58 (in part), 146 and 147. (Sections 57 and 58 relate to limitation periods and are not relevant to any issue arising on the appeal.) The second attachment is a photocopy of a document bearing the heading "Zeugenvernehmung", an expression which has been translated as "Examination of Witness". The name of the witness whose statement is there recorded is shown as Antonio Vidal Juan. It appears from the face of the document that the statement was taken on 10 June 1986 before Dr Zelenka with the assistance of an interpreter with knowledge of the Spanish language. The statement refers to other documents as being enclosures. It does not appear whether those documents accompanied the requisition dated 24 April 1987 but, in any event, they were not part of the material placed before the first respondent.
On 8 May 1987 the Attorney-General signed a notice under s.15(1)(a) of the Extradition Act stating that the requisition had been made and authorizing "the issuing by any Magistrate of a warrant for the apprehension of Hans Heinz Klepp". The notice recited that Hans Heinz Klepp was a fugitive "accused of the offence of fraud" against the law of the Republic of Austria.
On 29 June 1987, upon information on oath, a warrant for the apprehension of the appellant was issued under s.16 of the Extradition Act by Ms Sally Elizabeth Brown who was described as a Magistrate in and for the State of Victoria and a Magistrate within the meaning of that expression in s.4 of the Extradition Act. Pursuant to that warrant the appellant was arrested in Victoria on 1 July 1987.
According to the certified English translation of the warrant, the arrest of Hans Heinz Klepp is authorized "because of suspicion of the crime of serious fraud according to sections 146, 147, paragraph 3, of the Austrian Criminal Code". The warrant also contains a statement of facts and circumstances relied upon as providing a foundation for the authority to arrest. From a consideration of that material and of the attached statement of Mr Vidal Juan, it is possible to discern the general nature of the circumstances giving rise to the request for extradition. A summary of those circumstances follows.
The appellant is alleged to have been, at the relevant time, the sole "associate and managing director" of a limited liability company or partnership called Techimpex. From 1975 onwards, Techimpex had business dealings with a firm in Spain called Alvima S.A. which was a manufacturer and wholesaler of heating appliances. Techimpex was the representative of Alvima S.A. for Austria and Germany and it purchased goods from Alvima S.A. which it then sold in the course of its business. The course of dealing was such that goods were supplied to Techimpex on terms that payment would be made a specified number of days after delivery, the number of days varying from 90 to 180 depending upon the month of the year during which the goods were delivered.
Although it is stated in the warrant that up until 1985 payment for goods delivered was regularly made by Techimpex, Mr Vidal Juan's statement is to the effect that from the middle of 1984 Alvima S.A. had found it necessary to extend the times for payment because of Techimpex's failure to pay on the due dates. But whatever may have been the position prior to July 1985, it is asserted that, in respect of each delivery made between 9 July 1985 and 31 December 1985, some of those deliveries being made to Techimpex and some directly to purchasers from Techimpex, a bill of exchange was drawn by the appellant in the amount of the invoice relating to the goods then delivered. It is said that by so doing, the appellant induced the belief that there was a capacity and willingness to pay for the goods in due course of business and in conformity with the terms of the bill of exchange.
It is further asserted that the goods in question were sold by Techimpex and that payments were made by the purchasers, not to the usual bank account of Techimpex, but to accounts then recently opened with other financial institutions. Amounts are said to have been withdrawn from those accounts between 11 November 1985 and 30 January 1986 by the appellant or by persons acting on his behalf, the latter handing to the appellant the amounts withdrawn by them. The appellant is alleged to have secured from Alvima S.A. in December 1985 extensions of the due dates for payment under the bills of exchange, even though, at the time he did so, payment for the goods had in most cases already been made to Techimpex by the purchaser from it. On presentation, the bills of exchange were dishonoured and payment for the goods has not been made to Alvima S.A.
Mr Vidal Juan refers to 13 deliveries having been made during the relevant period. He asserts that the amount owing to Alvima S.A. totals 1.917.708 Deutschmarks which, at the assumed rate of exchange, is said to be the equivalent of 13.424.000 Austrian Schillings. The amount for which the bill of exchange dated 9 July 1985 was drawn is shown as 68.310 Deutschmarks (or 478.170 Austrian Schillings). The amount for which each of the other bills of exchange was drawn does not appear from the material placed before the first respondent. In particular, it does not appear whether each of those bills of exchange was for an amount exceeding 100.000 Austrian Schillings.
The appellant is alleged to have left Austria on 30 January 1986. It is said that he had, in March 1985, shown interest in migrating to Australia and had, during the year preceding his departure from Austria, sold "great parts of his private and business assets". These circumstances are said to give rise to a well-founded suspicion "that at the moment of ordering with Messrs Alvima, S.A., Sedavi, (he) had intended to convert to his own use the proceeds from the resale of the merchandise".
On the hearing of the appeal it was contended on behalf of the appellant that it was not open to the first respondent to commit him to prison to await his surrender to the Republic of Austria. This contention was supported by three separate and independent submissions, one of those submissions having alternative limbs.
First, it was submitted that the foreign warrant of arrest and its attachments and the certified English translation thereof were not admissible in evidence before the first respondent and that, those documents being inadmissible, there was no material before the first respondent upon which he could be satisfied that the appellant was liable to be surrendered. The basis for this submission was that the documents were not duly authenticated in accordance with Article 12 of the Treaty, it being asserted that the requirements for due authentication and, thus, admissibility, are to be found in the terms of that Article and not in the less stringent provisions of s.26 of the Extradition Act. Counsel for the appellant, however, with commendable frankness, informed us that no objection had been taken before the first respondent to the admissibility of the documents and that, in the proceedings before the primary judge, it had been conceded on the appellant's behalf that the documents were duly authenticated. In these circumstances, we do not think it appropriate to allow the issue to be raised for the first time on the hearing of the appeal.
Secondly, it was submitted that the first respondent did not have before him a duly authenticated statement in writing setting out a description of each offence for which the surrender of the applicant was requested and the penalty applicable to each such offence as required by s.17(6)(a)(i)(B) of the Extradition Act. Alternatively, it was submitted that, if the requirements of that provision were considered to have been displaced by the provisions contained in Article 11(2)(a) of the Treaty as amended by the Protocol, the first respondent did not have before him, in terms of that provision, a duly authenticated statement of each offence for which extradition was sought.
We do not find it necessary to determine whether the requirements of s.17(6)(a)(i)(B) of the Extradition Act have been displaced, in whole or in part, by the provisions of Article 11(2)(a) of the Treaty as amended. Whichever provision applies, we are satisfied that, in order to sustain a requisition for the surrender of a person who is alleged to have committed an extradition crime as defined, it is necessary that the requesting state furnish to the requested state a duly authenticated document which satisfies the following requirements. It must set out the essential elements of each offence for which surrender is sought, clearly identify the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof, and give sufficient particularity to ensure that the requested state and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made.
Various considerations combine to support the conclusion that the language of s.17(6)(a)(i)(B) and of Article 11(2)(a) should be read as making it essential that the requesting state satisfy that requirement. At the forefront of these is the necessity for the person whose extradition is sought to be fully apprised of what is alleged against him. Another consideration is that the requested state needs to be informed of such matters so that it may consider whether any of the limitations upon the grant of extradition exist. Included in such limitations is the limitation that extradition will not be granted if the offence for which surrender is sought is, or is by reason of the circumstances in which it is alleged to have been committed, an offence of a political character (see Extradition Act, s.13(1)). Further, it is necessary that the offence or offences for which surrender is sought be set out clearly in the documentation in order to assist in ensuring that, if extradition be granted, the person surrendered will be tried only for an offence or offences for which he may properly be tried having regard to the provisions of s.13(2)(a) of the Extradition Act and Article 10 of the Treaty.
In our opinion, the requirement which the requesting state must satisfy is not fulfilled if all that is done is to put forward material of a general nature making it necessary for the requested state and the person exercising the power conferred by s.17(6)(c) of the Extradition Act to formulate the offence or offences upon which extradition is sought.
What, then, is the position in the present case? One may search in vain in the material placed before the first respondent for anything in the nature of a formal statement of the offence or offences alleged to have been committed by the appellant. In particular, the offence or offences for which extradition is sought are not expressed in the language of any of the provisions of the Austrian Criminal Code which are identified in the foreign warrant. The English translation of that warrant refers, as has already been mentioned, to "the crime of serious fraud according to sections 146, 147, paragraph 3, of the Austrian Criminal Code". A translation of those provisions is set out in one of the documents attached to the foreign warrant but the translation fails to give a clear picture of the conduct which sections 146 and 147 proscribe. It may, however, be accepted that section 146 makes it an offence for a person, with intent to enrich himself or another, to cause loss or damage by deceptive conduct. The penalty prescribed for that offence is a fine or imprisonment for up to six months. It is apparent, therefore, that, if what is alleged against the appellant is an offence against section 146, the offence is not an extradition crime within the meaning of that expression in s.4(1A) of the Extradition Act.
Section 147 consists of three paragraphs. The first paragraph, which is not, however, referred to in the foreign warrant or its attachments as being the section creating the offence alleged against the appellant, makes punishable offences of fraud carried out by various specified means of deception. Paragraph 2 is irrelevant for present purposes. Paragraph 3 appears in the certified English translation as providing:
"Who by the crime brings about a damage of more than A.S.100.000 shall be punished by imprisonment for one up to ten years."
Thus, although the maximum penalty prescribed in paragraph 3 satisfies the requirement set out in s.4(1A)(a) of the Extradition Act, it is by no means clear what are the elements of the offence for which that penalty is prescribed. It is certainly not apparent that paragraph 3 of section 147 has any relationship to the offence created by section 146.
In these circumstances, we are satisfied that the duly authenticated material put before the first respondent does not fulfil the requirement which we have identified as being essential to sustain a requisition for the surrender of the appellant, whether that requirement has its foundation in s.17(6)(a)(i)(B) of the Extradition Act or in Article 11(2)(a) of the Treaty as amended by the Protocol. That the material is deficient in this regard is highlighted by the attempts variously made in the course of the proceedings before the first respondent and the primary judge by those who then appeared on behalf of the Republic of Austria, attempts which were attended with only limited success, to formulate the offence or offences for which extradition is sought. It follows that it was not open to the first respondent to be satisfied, in terms of s.17(6)(b) of the Extradition Act, that the appellant was liable to be surrendered to the Republic of Austria.
The third submission relied upon had its foundation in the provisions of s.4(1A)(b) of the Extradition Act. It was submitted that, even if it were proper to regard the duly authenticated documents before the first respondent as containing a description or statement of the offence or offences for which extradition was sought, it was not open to the first respondent to conclude that, had the acts or omissions relied upon taken place, at the time when the requisition for surrender was made, in, or within the jurisdiction of, Victoria (being the part of Australia where the appellant was found), those acts or omissions would have constituted an offence against the law there in force the maximum penalty for which is death or imprisonment for not less than 12 months.
In the light of the conclusion which we have already expressed in relation to the earlier submission advanced on behalf of the appellant, it is unnecessary to consider this submission and we refrain from expressing any opinion on the point.
We do not think it appropriate, however, to part with the case without commenting upon two other matters. The first concerns the form of the warrant issued by the first respondent on 7 August 1987. As has already been mentioned, s.17(6) of the Extradition Act requires that such a warrant be "in accordance with the form prescribed for the purposes of this sub-section". The form is prescribed by the Extradition (Foreign States) Regulations - see reg.20 and Form 11 in the Schedule. Strict compliance with the prescribed form is not required, substantial compliance being sufficient (see Acts Interpretation Act 1901 (Cth), ss.25C and 46(a)). A perusal of the prescribed form makes clear that it was drafted in such a way as to enable its adaptation to the differing circumstances of individual cases. Thus, some words appear in square brackets, those words to be added only if the case requires. Other words are to be omitted if inapplicable. The form also contains, in italics, instructions as to the insertions to be made.
In the present case, no attempt was made to draft a warrant appropriate to the particular circumstances, using the prescribed form as a guide. What was done was to take a photocopy of the prescribed form (Form 11) after having obliterated some, but not all, of the italicized instructions appearing therein and superimpose on the copy so made various handwritten entries. Words which were clearly inapplicable to the circumstances and which should, therefore, have been omitted were allowed to remain. Other words in the prescribed form were also allowed to remain without it being apparent that the case was considered to require their presence. Also, the warrant is not formally addressed to the person in charge of a nominated prison. Further, although the document was signed by the first respondent, he failed to comply with the direction contained in the prescribed form that he state his designation. The resulting document lacks that degree of precision and clarity which should attend a warrant for the committal of a person to prison. What was done in this case should not be regarded as a precedent to be followed in other instances.
The second matter is whether Ms Brown and the first respondent, each of whom at the relevant time held office as a Magistrate in the State of Victoria pursuant to s.7 of the Magistrates' Courts Act 1971 (Vic), were persons authorized to exercise the powers respectively conferred by ss.16 and 17(6)(c) of the Extradition Act. Those powers are conferred upon a "Magistrate", an expression defined in s.4(1) to mean, so far as is material for the purposes of the present case, a person who holds office as a Magistrate, or as a Chief, Stipendiary, Police, Resident or Special Magistrate, of a State and in respect of whom an arrangement in force under s.24(1) is applicable. Section 24 provides:
"(1) The Governor-General may arrange with the Governor of a State for the performance of all or any of the persons who from time to time hold office as Chief, Stipendiary, Police, Resident or Special Magistrates of that State of the functions of a Magistrate under this Act.
(2)A copy of each arrangement made under this section shall be published in the Gazette."
The material before the first respondent included a copy of a notice published in the Commonwealth of Australia Gazette No.72B dated 1 September 1969 setting out the text of the arrangement made on that date between the Governor-General and the Governor of the State of Victoria in pursuance of s.24(1) of the Extradition Act. Under that arrangement, "all persons who from time to time hold office as Stipendiary Magistrates in the State of Victoria may perform the functions of a magistrate under that Act". It would appear that, at the time the arrangement was made and until the coming into force on 1 July 1986 of s.30 of the Courts Amendment Act 1986 (Vic), persons were, in the State of Victoria, appointed as Stipendiary Magistrates. By that statute, the word "Stipendiary" was deleted from the designation.
In view of the conclusions to which we have come on other aspects of the appeal and because the matter was not fully explored on the hearing before us, we express no definitive opinion upon the question whether Ms Brown and the first respondent were persons authorized to exercise the powers which they purported to exercise. However, the question whether persons who hold the office of Magistrate under the Magistrates' Courts Act 1971 (Vic) are authorized to exercise powers under the Extradition Act is one which should receive the attention of the Attorney-General as the Minister of State administering the Extradition Act.
For the reasons we have given, the following orders are made -
1. The appeal be allowed.
2. The orders made on 18 November 1987 be set aside and, in lieu thereof, it be ordered -
(i) that the decision of the first respondent (William Paterson Gibb) made on 7 August 1987 and the warrant issued by him on that date be set aside;
(ii) that the applicant (Hans Heinz Klepp) be released; and
(iii) that the second respondent (the Republic of Austria) pay the applicant's costs of the application for review.
3. The second respondent pay the appellant's costs of the appeal.
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