Klepp, H.H. v Gibb, W.P
[1987] FCA 630
•18 NOVEMBER 1987
Re: HANS HEINZ KLEPP
And: WILLIAM PATERSON GIBB and REPUBLIC OF AUSTRIA
No. VG 224 of 1987
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative Law - Extradition - Review of Magistrate's decision to commit to prison - whether hearing de novo by court - whether Magistrate had jurisdiction - whether extradition crime - whether documents on Magistrate's file formed part of the material before the Magistrate - whether material supported Magistrate's finding that applicant was the person referred to in the foreign warrant.
Extradition (Foreign States) Act 1966 ss. 4(1A), 17(6), 17(6A), 18, 24(1)
HEARING
MELBOURNE
#DATE 18:11:1987
Counsel for the applicant: Mr. P. Nedovic
Solicitors for the applicant: Nedovic & Co.
Counsel for the firstnamed and secondnamed respondents: Mr. J. Santamaria
ORDER
The application for an order of review, dated 18 August 1987, be dismissed.
The decision of the Magistrate, William Paterson Gibb, made 7 August 1987, that the applicant be committed to prison under s. 17(6)(c) of the Extradition (Foreign States) Act 1966 be confirmed.
The applicant, Hans Heinz Klepp, pay the costs of both the firstnamed respondent, William Paterson Gibb, and the secondnamed respondent, the Republic of Austria.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
JUDGE1
Hans Heinz Klepp (the applicant) has applied under s. 18 of the Extradition (Foreign States) Act 1966 (the Act) for an order to review the decision of the firstnamed respondent, made on 7 August 1987, that the applicant is liable to be surrendered to a foreign state, Austria, and that a warrant of committal issue under s. 17(6)(c) of the Act.
The applicant was represented by his solicitor, Mr. P. Nedovic. Mr. J. Santamaria, of counsel, appeared for the firstnamed respondent, Mr. Gibb, Stipendiary Magistrate (who submitted to any order that the court might make) and also for the Republic of Austria (the secondnamed respondent) which was joined as a respondent.
An agreement, signed by Mr. Nedovic on behalf of the applicant and by Mr. Santamaria on behalf of the respondents, was received in evidence (exhibit N8), together with documents marked "A", "B", "C" and "D", which were referred to in that agreement. The agreement read as follows:-
"Agreement
In these proceedings, the Solicitor appearing on behalf of the Applicant and Counsel appearing on behalf of the Respondents hereby agree as follows:-
1. The document annexed hereto marked "A" is:-
(a) the transcript of proceedings in relation to proceedings for the extradition of Hans Heinz Klepp conducted before W. Gibb, Magistrate, in the Magistrates' Court at Melbourne on 7 August 1987; and
(b) a true and accurate record of the proceedings before the said Magistrate.
2. The reasons for decision found between pp 103-106 of the document annexed hereto marked "A" is a true and accurate record of the statement of the reasons for decision given by the said Magistrate in deciding to issue a warrant for the committal of the Applicant being the warrant for committal the subject of these proceedings before this honourable Court.
3. The document annexed hereto marked "B" is a true copy of the said warrant for committal signed by the said Magistrate in respect of the Applicant on 7 August 1987.
4. The document annexed hereto marked "C" is a true copy of an Information for a Warrant dated 29 June 1987 sworn by Detective Senior Sargeant James Duffy before Sally Brown S.M. of and in respect of Hans Heinz Klepp.
5. The document annexed hereto marked "D" is a true copy of a Warrant for Apprehension issued by Sally Brown S.M. on 29 June 1987 pursuant to section 16 of the Extradition (Foreign States) Act 1966 of and in respect of Hans Heinz Klepp.
6. Each of the documents annexed hereto being the Information for a Warrant
("C") and the Warrant for Apprehension
("D") were on the court file held by the Magistrate on 7 August 1987 but neither was tendered in evidence before him on that day or at any other time."
The transcript (document "A") included the Magistrate's reasons for his decision. Certain other documents were also put in evidence by consent, including a diplomatic request and an Austrian warrant of arrest, dated 30 January 1987 (the Austrian warrant).
The grounds of the application were as follows:-
"1. The firstnamed Respondent did not have jurisdiction to hear and determine the matter as he was not a person in respect of whom an arrangement under s. 24(1) of the Extradition (Foreign States) Act 1966 was in force.
2. The decision of the firstnamed Respondent was not authorised pursuant to the Extradition (Foreign States) Act 1966 in that -
(a) the material presented to the Court was not sufficient to enable a finding that there was an extradition crime pursuant to s. 4(1A) of the said Act;
(b) there was no valid treaty properly in operation between the Republic of Austria and Australia for the purposes of the Extradition (Foreign States) Act 1966.
3. The material before the Court was insufficient to justify the order made in that it did not justify a finding that the Applicant is liable to be surrendered to the Republic of Austria because -
(a) the material taken at its highest revealed only a civil dispute and not an extraditable crime;
(b) there was no evidence properly admissible placed before the Court upon which the finding could properly be based.
(There was no ground 4)
5. The documents translated from German into English and tendered in support of the application for extradition were so unsatisfactory that they could not properly be relied upon for the purposes of making the Order made by the firstnamed Respondent.
6. There was not any or any sufficient material or evidence upon which a finding could be made that the Applicant was the person referred to and the subject of the warrant of arrest issued in the Republic of Austria and tendered in the proceedings herein."
Mr. Kent, of counsel, on behalf of the applicant, had advanced to the respondent Magistrate, on 7 August 1987, arguments which were recorded at pages 42-90 of the transcript of those proceedings - the document marked "A" referred to in the agreement set out earlier. Before this court those arguments were adopted by Mr. Nedovic who orally "highlighted" certain of them and also filed a written submission.
As to the role of the Magistrate, s. 17(6) and 17(6A) of the Act, so far as material, read as follows:-
"(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) ... -
(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 whch 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."
As to the role of this court, s. 18 of the Act, so far as material, read as follows:-
"18.(1) Where a person (in this section referred to as a "fugitive") is committed to prison ... by a Magistrate pursuant to section 17, the fugitive may, within the period of 15 days after the date of the decision of the Magistrate, apply to the Federal Court, ... for a review of the validity of the decision of the Magistrate.
....
(3) Upon a review under sub-section (1), the Court shall have regard only to the material that was before the Magistrate and shall -
(a) if satisfied that the decision of the Magistrate was valid - make an order confirming the decision; or
(b) if not so satisfied - order that the fugitive be released."
At an early stage in the hearing I rejected a submission by Mr. Nedovic that s. 18(3) provides for a hearing de novo by this court. In my opinion s. 18, in providing for "a review of the validity of the decision of the Magistrate", does not intend that there should be a re-hearing by this court of the application made to the Magistrate under s. 17(6); it permits a review akin to that which occurs when a decision of a Magistrate is the subject of an order to review in the Supreme Court of Victoria. The wording of s. 18(3), on one reading of it, may be thought to require this court, where it is unable to form any opinion as to whether the Magistrate's decision is valid or not, to "order that the fugitive be released". However, having considered the provision in its context, I have decided to uphold Mr. Santamaria's written submission that:-
"6. Under s. 18(3) of the Act, the Court will be "satisfied that the decision of the Magistrate was valid" if having "regard only to the material that was before the Magistrate" the Court is satisfied:-
(a) that there was sufficient material before the Magistrate upon which he could have lawfully decided that the fugitive should be committed to prison; and
(b) there is no evidence or reason to believe that the Magistrate proceeded otherwise than in accordance with the law.
The section does not require the Respondent to establish positively that the Order of the Magistrate was valid."
That construction of s. 18(3) of the Act has been applied by me in reviewing the validity of the Magistrate's decision, and in examining his reasons for decision. On the material before this court, in my opinion there was sufficient material before the Magistrate for him to lawfully decide that the applicant should be committed to prison and there is nothing to suggest that the Magistrate proceeded otherwise than in accordance with the law.
I shall deal with each of the grounds of the application, which have been set out in full earlier in these reasons.
There is no substance in ground 1, namely, that the firstnamed respondent was not a person in respect of whom an arrangement under s. 24(1) of the Act was in force. An extract from the Commonwealth of Australia Gazette No. 72B, dated 1 September 1969, included the following:
"And it is hereby further arranged, in pursuance of sub-section (1.) of section twenty-four of the Extradition (Foreign States) Act 1966-1968, that 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.
Dated this first day of September, 1969.
Paul Hasluck Governor-General.
By His Excellency's Command,
Nigel Bowen Attorney-General.
Rohan Delacombe Governor.
By His Excellency's Command,
G. O. Reid Attorney-General."
In my opinion the firstnamed respondent, as a Stipendiary Magistrate holding office in the State of Victoria, clearly was a person in respect of whom there was in force an arrangement under s. 24(1) of the Act; the wording of that section expressly provides that an arrangement can be made for the performance of the functions of a Magistrate under the Act "by all or any of the persons who from time to time hold office as ... stipendiary ... magistrates ...".
As to ground 2(a), in my opinion the material presented to the Magistrate was sufficient to support the finding that there was an extradition crime within the meaning of s. 17(6)(a)(i). Section 4(1A) of the Act, in defining an "extradition crime", requires the existence of two elements as follows:
"(1A) ....
(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."
The words "a relevant act or omission" in s. 4(1A)(b) must be read in the light of s. 4(1B). I accept Mr. Santamaria's submission that the existence of element (a) is demonstrated by the provision in the Austrian Penal Code that the maximum penalty is imprisonment for ten years.
Element (b) leads to a consideration of the contents of the Austrian warrant of arrest to ascertain whether or not the relevant acts there alleged - if proved - would constitute an offence against the law of Victoria. Mr. Santamaria submitted that the material in that warrant supported the allegation that Mr. Klepp had committed the crime of obtaining, by deception, property belonging to a company; that Mr. Klepp did so by giving that company certain bills of exchange and that when he ordered the goods he did not intend to pay for them. He submitted that there was material in abundance to satisfy the Magistrate that the relevant acts by Mr. Klepp would have constituted an offence against Australian law - specifically s. 81 of the Crimes Act (Victoria) 1958.
Having examined the Austrian warrant of arrest I accept Mr. Santamaria's submission that the material before the Magistrate was sufficient to support his finding that the acts alleged constituted an extradition crime. Accordingly ground 2(a) is rejected.
Ground 3(a), which is very closely related to ground 2(a), is also rejected for substantially the same reason, as is the contention that the material "revealed only a civil dispute".
Ground 3(b) was that "there was no evidence properly admissible placed before the Court upon which the (Magistrate's) finding could properly be based". Mr. Nedovic submitted that the Act and the treaty together imposed strict requirements as to the duly authenticated documents required to be produced to the Magistrate. He referred to the opening words of s. 17(6), contending that the Magistrate must be satisfied that Mr. Klepp "was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) (of the Act)"; in support of that submission he cited passages from Schlieske v. Federal Republic of Germany (1987) 71 ALR 215 at 221-223. As to the "authority by the Attorney-General in a notice under paragraph 15(1)(a) (of the Act)", it may be said immediately that it was placed before this court by Mr. Nedovic.
In my opinion the warrant of apprehension under which Mr. Klepp was apprehended was part of the material before the Magistrate. The transcript of the proceedings before him showed (pp 19-20) that the Magistrate's attention was expressly drawn to "the manner in which Mr. Klepp came before this Court" and the Magistrate said that he had copies of the warrant of apprehension, dated 29 June 1987, under s. 16 of the Act and of the information for a warrant, dated 29 June 1987, sworn by the informant. In addition, the agreement between the parties (the terms of which are set out earlier) expressly states that the warrant of apprehension was "on the court file held by the Magistrate on 7 August 1987" (paragraph 6). In my opinion the applicant's case is not assisted by the fact that the warrant of apprehension was not formally tendered in evidence before the Magistrate; it was common ground before this court that the Magistrate was not exercising judicial power but was performing an administrative function. It may be added that, for the same reasons, the information for a warrant was also part of the material before the Magistrate.
As to ground 2(b), in my opinion the material was sufficient to support the Magistrate's finding, that at the relevant time there was in force a valid treaty between Australia and the Republic of Austria.
As to ground 5, although the documents translated from German into English might have been expressed with greater clarity, I reject the contention that they "were so unsatisfactory that they could not properly be relied upon" by the Magistrate in making his order.
The last ground, ground 6, was that there "was not any or any sufficient material upon which a finding could be made that the Applicant was the person referred to and the subject of (the Austrian warrant of arrest, dated 30 January 1987)". It was common ground in this court that the applicant was physically present during the hearing before the Magistrate. The transcript shows that counsel for the applicant did not suggest to the Magistrate that the applicant denied that he was the man named in the warrant. It may be noted that the transcript of that hearing before the Magistrate shows that the applicant's counsel, Mr. Kent, opposed the application for extradition on "a number of bases" - including the matters now raised in grounds 2(a) and (b), 3 and 5 of the present application. Then, after an address to the Magistrate which occupied 40 pages of transcript, he said that "there is no real evidence to say that this Mr. Klepp before the court is the man referred to in any event in this documentation"; he also referred to the description of Mr. Klepp in the Austrian warrant, saying "Your Worship is asked to say that you can order this man sitting in this court to be returned to Austria based on this material".
It was common ground between the parties in this court that s. 17(6A) did not prevent the applicant from giving evidence before the Magistrate, if he had wished, denying that he was the Hans Heinz Klepp referred to in the Austrian warrant of arrest, dated 30 January 1987. In this connexion, Mr. Santamaria referred to the case of R. v. Chandler (1976) 1 WLR 585 at 589 where the Court of Appeal said:
"The law has long accepted that an accused person is not bound to incriminate himself; but it does not follow that a failure to answer an accusation or question when an answer could reasonably be expected may not provide some evidence in support of an accusation."
As appears from the transcript of the hearing before the Magistrate, Mr. Klepp did not give evidence denying that he was the person named; nor did he call any evidence to suggest that it might be a case of "mistaken identity"; for example he did not give or call any evidence (1) that he had never been a director of the Austrian company, Techimpex, or (2) that he had not left Austria on 30 January 1986 with his family or (3) that he was born on a different date. On the latter aspect it may be noted that the Diplomatic Request, dated 24 April 1987 referred to Mr. Klepp as having been "born 16 January 1993 (sic)". The Republic of Austria expressly drew the Magistrate's attention to the error as to the year of his birth but Mr. Kent, on behalf of the applicant, said, as to that error in the stated year of birth, that he did "not propose to take up the time of the court because it is a matter that is plainly oversight or error or typographical error or some error in translation ... that would be an absurd point to take and it is not taken."
In my opinion the material before the Magistrate, viewed in the light of the way in which the matter was conducted before him by the applicant's counsel in the presence of the applicant, was such that the Magistrate was entitled to be "satisfied, within the meaning of s. 17(6)(b) of the Act that the person (the present applicant) is liable to be surrendered to the foreign state that made the requisition for the surrender", namely, the Republic of Austria.
For the above reasons I have been unable to uphold any of the applicant's grounds. I am "satisfied that the decision of the Magistrate was valid" within the meaning of those words in s. 18(3) of the Act, construed in the manner set out earlier in these reasons. Accordingly the application must be dismissed and an order made confirming the decision of the Magistrate. The applicant must be ordered to pay the costs of both the firstnamed respondent and the secondnamed respondent.
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