Knauder v Moore
[2002] FCA 850
•2 JULY 2002
FEDERAL COURT OF AUSTRALIA
Knauder v Moore [2002] FCA 850
EXTRADITION – denial of procedural fairness – dual criminality – due authentication of supporting documents - nature of review of Magistrate’s order
Extradition Act 1988 (Cth) ss 16, 19 and 21
Crimes Act 1900 (NSW) ss178A, 178BA and 179
Penal Code of the Federal Republic of Germany ss 53 and 263Twist v RandwickMunicipal Council (1976) 136 CLR 106 applied
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 followed
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed
Charron v Government of the United States [2000] 1 WLR 1793 considered
Republic of South Africa v Dutton (1997) 77 FCR 128 considered
De Bruyn v Republic of South Africa (1999) 96 FCR 290 applied
Cox v Hakes (1890) App Cas 506 referred to
Re Bolton; Ex parte Beane (1987) 162 CLR 514 referred to
Prabowo v Republic of Indonesia (1997) 74 FCR 599 referred to
Cabal v United Mexican States (No. 3) [2000] FCA 1204 followed
Bennett v Government of the United Kingdom [2000] FCA 916 referred toFRANK ANDREAS KNAUDER V ALAN MOORE & THE FEDERAL REPUBLIC OF GERMANY
N207 OF 2002
JACOBSON J
2 JULY 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N207 OF 2002
BETWEEN:
FRANK ANDREAS KNAUDER
APPLICANTAND:
ALAN MOORE
FIRST RESPONDENTTHE FEDERAL REPUBLIC OF GERMANY
SECOND RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
2 JULY 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth) the order of Magistrate Moore made on 1 March 2002 under s 19(9) of the Act, Frank Andreas Knauder is eligible for surrender to the Federal Republic of Germany in relation to seven of the ten extradition offences specified in the schedule to the Magistrate’s order, namely those extradition offences specified in paragraphs 3-9 of the warrant of arrest, is confirmed.
2.Pursuant to s 21(2)(b) of the Extradition Act 1988 (Cth) the order of Magistrate Moore made on 1 March 2002, that Frank Andreas Knauder is eligible for surrender to the Federal Republic of Germany in relation to the extradition offences specified in the schedule to the Magistrate’s order, namely those extradition offences specified in paragraphs 1, 2 and 10 of the warrant of arrest, is quashed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N207 OF 2002
BETWEEN:
FRANK ANDREAS KNAUDER
APPLICANTAND:
ALAN MOORE
FIRST RESPONDENTTHE FEDERAL REPUBLIC OF GERMANY
SECOND RESPONDENT
JUDGE:
JACOBSON J
DATE:
2 JULY 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
On 1 March 2002, the first respondent (“The Magistrate”) determined that the applicant (“Mr Knauder”) was eligible for surrender to the Federal Republic of Germany pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“The Act”) in respect of ten offences under s 263 of the Penal Code of the Federal Republic of Germany. I will refer in more detail to the provisions of the Code later in the judgment. However, in general terms it is sufficient to say by way of introduction that the alleged offences are that Mr Knauder dishonestly obtained money or property from third parties.
The Magistrate proceeded on 1 March 2002 to issue a warrant under s 19(9)(a) of the Act committing Mr Knauder to the Metropolitan Remand and Reception Centre (“MRRC”) to await surrender to the Federal Republic of Germany (“FRG”). By an amended application dated 17 May 2002, Mr Knauder seeks an order of review of the Magistrate’s order pursuant to s 21 of the Act.
The application is supported by an affidavit of Martin Gerard Dallitz, solicitor, which specifies three grounds upon which Mr Knauder relies.
The first ground relied upon is that the Magistrate erred in finding that the supporting documents produced by the second respondent (“FRG”) under s 19(3) of the Act were duly authenticated under s 19(7) of the Act. The second ground relied upon is that the Magistrate erred in finding that the requirement of double criminality required by s 19(2)(c) was satisfied.
The third ground is that the Magistrate denied Mr Knauder procedural fairness in the conduct of the proceedings because he failed to take account of an earlier direction made by Magistrate Syme on 7 November 2001, that the Commonwealth DPP supply Mr Knauder with a list of equivalent Australian offences relied upon to establish dual criminality under s 19 of the Act. The list was to be supplied by 5 December 2001 but Mr Knauder contended that he did not receive it until the morning of the hearing. For the reasons set out below, I am of the view that the Magistrate denied Mr Knauder the requirements of natural justice and procedural fairness.
I should mention at this stage that Mr Knauder did not have legal representation either before the Magistrate, or before Magistrate Syme, or before me. I should also mention that Mr Knauder impressed me, not only because of his command of the English language and the subject matter of the proceedings, but also because of the fair and candid way in which he conducted his application.
In my view, the outcome of the application depends upon whether, notwithstanding the finding I have made of the conduct of the proceedings before the Magistrate, I am entitled under s 21(2)(a) of the Act to confirm the Magistrate’s order. The answer to this question depends upon the nature of the review under s 21 of the Act.
In order to understand why I have come to the view that I have reached about procedural fairness, it is necessary to set out the background facts.
BACKGROUND FACTS
Mr Knauder has been living in Australia since approximately February 1999. On 8 March 2001, the local court of Tiergarten, Berlin, issued a warrant for his arrest. The warrant stated that Mr Knauder was under strong suspicion in Berlin that in ten cases during the period from 16 April 1998 until 20 February 1999: -
“… with the intention of obtaining an illegal pecuniary advantage for himself or for a third party, of having caused damages to the property of another in the way of causing an error by fraudulent representation of true facts.”
The warrant then stated that the accused was charged “with the following facts.” There were then set out ten counts, which were said to amount to offences punishable under sections 263 and 53 of the Penal Code of the Federal Republic of Germany. I shall deal in more detail with the description of the charges in the warrant later in the judgment.
On 15 June 2001, a warrant for the arrest of Mr Knauder under s 12(1) of the Act was signed by Magistrate Sweeney. Mr Knauder was apparently arrested on or about 9 July 2001 and has been held on remand at the MRRC at Silverwater since that time.
On or about 31 August 2001, a request was made by the FRG to the Attorney General for the Commonwealth for the extradition of Mr Knauder to the FRG. The FRG is an extradition country under the Act. On 6 September 2001, Senator C.M. Ellison, Minister for Justice and Customs, issued a notice of receipt of the request for extradition pursuant to s 16 of the Act. No point was taken before me that the notice was signed by Senator Ellison, notwithstanding that s 16 of the Act provides for the notice to be given by the Attorney General. Nor did Mr Knauder contend that this point was taken before the Magistrate. The s 16 notice was apparently provided to Mr Knauder as required by s 16(3) of the Act.
On 7 November 2001, the matter was listed before Magistrate Syme to inquire whether Mr Knauder had been able to arrange legal representation. The transcript of the hearing on that date commences on p.25 of the Review Book.
Mr Knauder told Magistrate Syme that he could not afford legal representation. He requested “pursuant to s 19(1) of the Act” that the Commonwealth DPP serve and file a list of the equivalent Australian offences which it relied upon to establish the requirement of dual criminality under s 19 of the Act.
Her Worship stated that the order “would not be unusual” and that “the statement requested by Mr Knauder was fair”. Her Worship also suggested that written submissions be provided to Mr Knauder by the DPP. Her Worship listed the matter for hearing for two days commencing on 28 February 2002. She made a direction that by 5 December 2001 the Commonwealth DPP file and serve a written statement setting out “the elements in the evidence” and the reasons relied upon to establish dual criminality.
Mr Knauder indicated that he would have to talk to a lawyer about the statement. Her Worship stated that if Mr Knauder required any more information she was happy to hear any other application before the matter came back to the court for hearing.
The Commonwealth DPP contends that on 4 December 2001 it complied with Magistrate Syme’s order by faxing a copy of its written submissions, which contained a list of NSW offences, relied upon to establish dual criminality, to Mr Knauder.
Exhibit 1 before me included a fax dated 4 December 2001 addressed to the Silverwater Remand Centre for the attention of Mr Steve de Silva – the Governor. The fax states that a letter enclosing the Crown’s submissions is attached. The third page of the exhibit is a transmission report which appears to establish that eight pages of documents were faxed to a number set forth in the report. The next page of the exhibit is a letter from the DPP addressed to the Governor of the Metropolitan Remand and Reception Centre at the Silverwater Correctional Centre Complex, marked for the attention of Mr de Silva and headed Re: Prisoner Frank Andreas Knauder. The letter states that a copy of the applicant’s submissions are enclosed. The first page of exhibit 1 before me was not in evidence before the Magistrate. The DPP’s submissions appear at pp. 53-58 of the Review Book. They comprise six pages. Thus, excluding the transmission report which is part of exhibit 1, the two pages of exhibit 1 and the six pages of submissions comprise a total of eight pages which was the number of pages referred to in the transmission report.
Mr Knauder agrees that, apart from the first page of exhibit 1, the other three pages were tendered before the Magistrate. Mr Knauder says that he did not receive the fax containing the DPP’s submissions until the morning of 28 February 2002 when the submissions were handed to him in court. He says that Governor de Silva was not the governor of the Silverwater Remand Centre and the fax number was not the fax number of the Remand Centre. Mr Knauder says that the fax was sent to the Silverwater Correctional Centre and not to the Silverwater Remand Centre where he was located.
There is some support for Mr Knauder’s contention because on 19 February 2002 he sent a letter to Magistrate Syme stating that the FRG had not served the details of the New South Wales offences relied upon to support dual criminality. The letter went on to say that, accordingly, Mr Knauder could not be ready for the hearing and he asked for the matter to be restored before Magistrate Syme.
I asked Counsel for the second Respondent if he could explain why it was that the matter was not relisted. Having not appeared at the hearing before the Magistrate, Counsel was unable to tell me why this had not occurred. He made the point that it was not clear when the court received the letter of 19 February 2002. I should mention that there was no appearance for the Magistrate in the proceedings before me.
On 28 February 2002, the matter was listed before the Magistrate. The transcript records that Mr Knauder said that he had not received the faxed submissions. He said he made enquiries for them every week at the Centre. The Magistrate said that the fax appeared to be no more than a submission and summary and he gave Mr Knauder an hour to consider the documents. Mr Knauder said that he needed time to prepare and that Magistrate Syme had in effect given him three months to do so.
The transcript contains the following exchange at p. 34 of the Review Book:-
“BENCH: In short sir you are seeking an adjournment today?
FUGITIVE: Exactly.
BENCH: Till some date in the future?
FUGITIVE: Because I defend myself and I don’t know how many equivalent offences in here in the papers. I have to prepare myself for the hearing. I’m unprepared because I didn’t receive the papers and one hour is definitely not enough when Judge Syme said I’ve got three months.
BENCH: Sir it appears as though from my perspective the Department of Public Prosecutions have done all they can to endeavour to send the submissions to you apart from personally going out and handing them to you, by faxing them which they have evidence of.
FUGITIVE: That must be the case.
BENCH: As I’ve indicated to you sir I’m prepared to give you an hour to give consideration to those documents if you so desire. But the matter will proceed today.
FUGITIVE: What can I say? I’ve got no choice.
BENCH: Now do you wish time to read that material?
FUGITIVE: Yes sure I wish time to read that material.
BENCH: Very good. Any objection to that Miss Stevens?
STEVENS: No your Worship.
BENCH: Very good, I think it’s important you do read that material. Perhaps I will give you till 11.30. We’ll start the matter at 11.30.”The Magistrate asked Mr Knauder why he did not bring with him to court a copy of the Crown brief. Mr Knauder said the reason was that the submissions were not served and the following exchange took place: -
“BENCH: You’ve come to court with nothing, is that the case?
FUGITIVE: I’ve come to court with nothing except my application, asking for more time to prepare myself.
BENCH: Why didn’t you bring all your material in respect to the brief?
FUGITIVE: Because I was in the opinion no-one served the papers. The Federal Republic of Germany didn’t send—
BENCH: So you’re of the view that an adjournment would be forthcoming?
FUGITIVE: Yes.
BENCH: It would be a fait accompli.
FUGITIVE: I thought a fait accompli.
BENCH: Well that’s not the case. Have you read the brief? Have you read the material that’s been served upon you from the German Republic?
FUGITIVE: Yes I’ve read it.
BENCH: You have? Very good. Well Miss Stevens will make available to you a spare copy of it that she has.
FUGITIVE: No I don’t need the copy. I just needed the copy of the fax you sent on 4 December to prison because I’m—
STEVENS: Perhaps I could just show you the—
FUGITIVE: I’m absolutely unprepared. No-one served the papers on me. And that means for me I’m losing my hearing today and that’s because I’m unprepared.” (Review Book, p.35)At p. 36 of the Review Book, the transcript records that the Magistrate said: -
“BENCH: Well I appreciate that sir but you’ve elected to proceed on your own. That matter has been in existence since July last year, either seven or eight months, depending on – certainly seven months, almost eight months and nothing has occurred. The matter will proceed today. I believe Miss Syme has ordered submission merely as a matter of courtesy and nothing else.The Crown are certainly not required to provide a submission to you. They’ve done that out of some courtesy as a result of an order by a magistrate, my colleague Miss Syme.” (emphasis added)
At p. 36 of the Review Book, the transcript records that the Magistrate said that s 19 was “a very black and white section sir.” The Magistrate went on to say that he had looked at the submissions from the DPP “this morning briefly” and that the submissions were “no more than an overview of the law and the authorities.” (Review Book, p. 37)
After the adjournment, the following exchange occurred: -
“FUGITIVE: Can I just come back to section 19D that the magistrate considers that the person in the extradition country had a reasonable time to prepare. On 19 February I’ve sent letter to Local Court to Magistrate Syme to inform her that I didn’t receive the papers and on 7 November, my last appearance before the Court she left room to restore if there is any problems and a reasonable time to prepare one and a half hour is not enough.
BENCH: Sir correct me if I am wrong but you told me this morning you received a copy of the documentation from Germany and you had that back at the prison?
FUGITIVE: I’m not talking about the document--
BENCH: No I appreciate you are not talking about that. Correct me if I’m wrong, is that not the situation?
FUGITIVE: I received it yes, you are not wrong.
BENCH: Not that has nothing to do with any order made by Magistrate Syme on--
FUGITIVE: 7 November.
BENCH: --7 November.
FUGITIVE: That’s right.
BENCH: All she has said is submissions by 5 December. That has nothing to do with the legislation. I’ve already heard you in that respect. I’ve made a decision in that respect and we are now moving forward. And I’ve told you that I give you time. I gave you a little over an hour, about an hour and a quarter to read that material. That is the submissions. You were the one who elected not to bring in the documentation that you’ve been served in respect to the material obtained from Germany. Miss Stevens has made that available to you which you tell me you’ve – or you told me you have read.” (Review Book, p.40)At p. 44 of the Review Book, the Magistrate said: -
“BENCH: No. I’d suggest that Miss Syme did not more than endeavour to assist you by providing – I’ll rephrase that, by having the Commonwealth Department of Public Prosecutions provide you with the submissions at an early point in time which they would be relying upon.”
The following exchange took place as recorded at pp. 44-45 of the Review Book: -
“BENCH: Sir, Miss Stevens has advised and can produce a document that they were served. They were served by fax machine to the Governor of the prison.
FUGITIVE: And that’s why I sent on 19 February to the magistrate a reminder that I didn’t receive the papers so far. It was on 19th, ten days ago, nine days ago and asked that the matter be restored before you because the Federal Republic of Germany has failed to comply with your Worship’s order.
BENCH: No it’s not the Federal Republic of Germany.
FUGITIVE: But--
BENCH: Every order has been complied with that I can see. It is simply a situation, based upon what you are telling me, that the papers never found their way to you. No-one’s failed to comply with any order.
FUGITIVE: That’s right but how can I prove that the papers never found to me.
BENCH: I don’t know but I’ve had them made available to you. In fact it wasn’t me. Miss Stevens made them available to you without my intervention.
FUGITIVE: I’m absolutely unprepared and I--
BENCH: Well sir I suppose what one can do if Miss Stevens had no objection this matter is listed to go for two days. Will you come back here at first blush tomorrow morning that is at 10 o’clock. They will give you the balance of today and overnight and you can come back and make your submissions tomorrow morning.
FUGITIVE: That’s fair enough.
BENCH: But I will not grant you an adjournment for any greater period than that. The matter will proceed tomorrow morning. Miss Stevens do you wish to argue with that?
STEVENS: No your Worship.
BENCH: Is that acceptable to you sir?
FUGITIVE: Thank you.”The matter resumed on 1 March 2002. The first 42 minutes of the proceedings were unable to be transcribed because there was no sound recorded on the master tape. All that is recorded in the transcript is what appears to be, the Magistrate’s determination of whether Mr Knauder was eligible for surrender.
The Magistrate referred to the direction given by Magistrate Syme. He said he had no knowledge as to what was in the Magistrate’s mind but he trusted “it was for the purpose of assisting Mr Knauder, he being unrepresented…” (Review Book, p. 48) I will set out what appears at p. 48 as follows: -
“Any suggestion by Mr Knauder that he has had insufficient time to prepare himself is to be rejected for he has had almost six months to prepare himself for the hearing before the Court and in addition to that my colleague, Miss Syme, took the unusual step of seeking the Crown present their submissions prior to the hearing, as I have already indicated I believe for the purposes of assisting the gentleman further, he being unrepresented.” (emphasis added).
The Magistrate went on to say that he drew an inference from Mr Knauder’s language that he anticipated on 28 February 2002 that he would receive a further adjournment to prepare himself but that the Magistrate was of the view that Mr Knauder had more than sufficient time to prepare.
The Magistrate went on to find that the requirement of dual criminality had been satisfied in relation to the ten offences alleged to have been committed in the FRG. He found that the offences in New South Wales corresponded with offences under s 178A of the New South Wales Crimes Act and also offences of obtaining money by deception and offences of false pretences. Although the Magistrate did not specify the sections of the Crimes Act 1900 (NSW) (“Crimes Act”), which applied to the two last mentioned offences, it seems clear enough that he intended to refer to sections 178BA and 179. The Magistrate then determined that Mr Knauder was eligible for surrender in accordance with s 19(9) of the Act. Accordingly, his Worship issued a warrant under s 19(9)(a) of the Act.
DENIAL OF PROCEDURAL FAIRNESS
Mr Knauder relied upon well-known authorities including Twist v RandwickMunicipal Council (1976) 136 CLR 106 (“Twist”) to support the proposition that procedural fairness is required to be accorded by a magistrate dealing with an extradition request.
The functions performed by magistrates who heard proceedings under earlier legislation were held to be administrative functions: Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 486 (“Wiest”), per Burchett J and at 521-22 per Gummow J. The functions of the magistrate under the 1988 Act are also administrative and it has been held by this court that procedural fairness must not be denied to the person who is the subject of the proceedings under s 19: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290 (“Zoeller”).
Indeed, s 19(1)(d) seems to me to involve one aspect of procedural fairness as a prerequisite to a magistrate’s determination of eligibility for surrender. This is because the magistrate is required to consider whether the person who is sought to be extradited has had reasonable time in which to prepare for the conduct of the proceedings.
In Charron v Government of the United Statesof America [2000] 1 WLR 1793 at 1800-1801 (“Charron”), the Privy Council referred to a number of English authorities in which it has been stated that it is “a respectable practice” to supply a fugitive with particulars of the offences formulated under English law. It was unnecessary for their Lordships to consider whether the applicant in Charron had suffered any procedural unfairness because their Lordships were of the view that the applicant was fully aware of the necessary details.
In Zoeller at 297, the Court noted that s 10(2) of the Act distinguishes the Australian legislation from legislation considered in leading English authority. Notwithstanding any differences between the Act and the comparable provisions of the English legislation, it seems to me that the cases referred to in Charron provide some authority for the proposition that a “fugitive” is entitled to know the details of the Australian offences relied upon to establish dual criminality.
In any event, at the hearing before Magistrate Syme on 7 November 2001, the Commonwealth DPP took no objection to Mr Knauder’s request for a list of offences. Nor did the Commonwealth DPP demur from Magistrate Syme’s remarks that the course proposed was not unusual and that it was fair. In my opinion, the Magistrate was either unaware of the reasons why Magistrate Syme had made her order or he misunderstood the reasons. It was quite wrong to state that Magistrate Syme had ordered the submissions merely as a courtesy.
I appreciate that magistrates are under pressure to hear and determine proceedings expeditiously. However, the fundamental purpose of all proceedings must be to do justice between the parties.
In my opinion, it is clear from the portions of the transcript referred to above that the Magistrate made no real effort to determine whether Mr Knauder had in fact received the list of the offences and the Commonwealth DPP’s submissions within a sufficient time to enable him to prepare for the conduct of the proceedings. The Magistrate accepted the Commonwealth DPP’s submission that the written submissions (including the list) had been served without taking any account of Mr Knauder’s statement that he had not received the document.
The Magistrate’s view that the document was no more than a submission and summary or an overview which Mr Knauder could consider in one hour without legal assistance is not borne out by an examination of the document appearing at p. 53-58 of the Review Book.
It is true that the Magistrate eventually granted an adjournment until the next day. However, in light of what Mr Knauder told the court about his state of preparedness and the fact that he was unrepresented, I do not consider that the Magistrate accorded Mr Knauder reasonable time to prepare for the hearing.
Although Mr Knauder said that an adjournment until the next day was “fair enough”, I do not consider that upon an examination of the whole of the transcript at pp. 44-45 of the Review Book, the apparent concession made by Mr Knauder should preclude him from agitating the issue of procedural fairness before me.
Counsel for the second respondent, Mr Bracks, submitted that there was nothing in the Act, which required the Commonwealth DPP to make available to Mr Knauder the list of Australian offences.
It is unnecessary for me to decide that question because the issue of procedural fairness turns on the orders made by Magistrate Syme. Her order was made for the purpose of establishing procedures to be followed to ensure that Mr Knauder received a fair hearing. The Magistrate’s failure to take Magistrate Syme’s order into account resulted in the denial of procedural fairness to Mr Knauder.
It was not sufficient for the Magistrate to merely accept the Commonwealth DPP’s contention that it had served the submission on 4 December 2001. Whether or not that view was warranted by the documents contained in exhibit 1, in my opinion, in the light of Mr Knauder’s contention that he had not received the submissions and, also, having regard to what he said in his letter of 19 February 2002, it was incumbent upon the Magistrate to grant Mr Knauder a reasonable adjournment so as to ensure that the procedural protection accorded by Magistrate Syme could be observed.
THE NATURE OF THE REVIEW UNDER SECTION 21 OF THE ACT
In Republic of South Africa v Dutton (1997) 77 FCR 128 at 133-136, Hill J considered this question in some detail. His Honour referred to a number of earlier authorities on the issue. His Honour noted that s 19 of the Act contemplates that the Magistrate will make a determination on the papers. His Honour also pointed out that the person to whom the proceedings relate is not entitled to adduce evidence in support of his or her innocence; see s 19(5) of the Act. As his Honour said, practically, in most cases regard will be had only to the authenticated written statement setting out the conduct constituting the offence and the description of the penalties; see s 19(3) and s 19(7).
Moreover, as Hill J observed, s 21(6) adverts specifically to the possibility that the review court may determine that the relevant person is eligible for surrender. At 136 his Honour summarised his opinion as to the nature of the review as follows: -
“From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusion on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.”
It follows in my view that I am given power under s 21(2)(a) to confirm the order of the Magistrate notwithstanding the denial of procedural fairness, which occurred at the local court. There is nothing unusual in this. It is simply a matter of determining the legislative intention, which underlies s 21 of the Act: Twist per Mason J at 113-114.
Mr Knauder submitted that the law is jealous of any infringement of personal liberty and he cited the decision of Cox v Hakes (1890) 15 App Cas 506 at 527 to support his submission. He submitted that, accordingly, s 21 of the Act ought to be interpreted so as to respect his right to personal liberty. However, the ultimate question is whether the parliament has expressed its intention with reasonable clarity: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 296 (“De Bruyn”), per Gyles J, a decision of the Full Federal Court, citing the judgment of Brennan J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523. In my view, it has.
In the course of argument I expressed some concern about the fact that 42 minutes of the transcript of the proceedings before the Magistrate have been lost. Initially, it seemed to me that I might be unable to confirm the Magistrate’s decision in the absence of such a substantial portion of the transcript. However, the hearing before me proceeded upon the basis that apart from the procedural fairness issue, the only other issues were two-fold, namely authentication and dual criminality. Although Mr Bracks’ written submissions stated that the authentication issue was not raised before the Magistrate, he did not object to Mr Knauder arguing the issue in full before me. He submitted that I should find that the authentication issue was not raised. However, I do not accept that submission in view of the 42 minutes of missing transcript. Accordingly, the question of whether I should make an order, either confirming the order of the Magistrate or quashing it, depends upon a consideration of the two issues referred to above.
AUTHENTICATION
Mr Knauder submitted that the supporting documents tendered by the FRG before the Magistrate were not duly authenticated. He provided me with written submissions on this issue (and on the issue of double criminality). I will place the written submissions with the papers.
Before dealing with Mr Knauder’s submissions, I will refer to the material contained in the supporting documents which are exhibit 3 in these proceedings. It is not disputed that the documents contained in exhibit 3 were tendered before the Magistrate. Copies of the documents appear at pp. 3 – 24 of the Review Book but it is necessary to refer to the original exhibit to understand the full import of Mr Knauder’s submissions.
The supporting documents contained in exhibit 3 consisted of a certificate given by Dr Wolfgang Klapper, the First Secretary of the Embassy of the Federal Republic of Germany in Australia. He certified that the documents “annexed to this certificate” and “secured to this certificate by the official seal of the Federal Republic of Germany” related to the request by the FRG for Mr Knauder’s extradition. The next page of the document consisted of a further certificate relating to the identity of Mr Knauder.
The documents annexed to the certificate consisted of a warrant of arrest to which I have previously referred and an English translation, a certificate which includes a statement of the provisions of sections 53 and 263 of the Penal Code of the Federal Republic of Germany together with a translation and also a certified photograph of Mr Knauder together with an English translation of the certificate.
Each page of exhibit 3 contains a number of seals and on the English translations of the German documents there are translations of the seals. The original of exhibit 3 reveals that the documents were tied together with two different pieces of string. It is apparent from an examination of the document that the first two pages, i.e. Dr Klapper’s certificates, were appended to the bundle after he had received the other documents from Berlin. The documents that came from Berlin were sealed with two white seals in German writing. Those documents were tied together in a different coloured string from that which was used to append Dr Klapper’s certificate. There is further red seal on the back of exhibit 3. This seal was placed on the document when Dr Klapper gave his certificate in Canberra.
It is apparent to me that the documents, copies of which appear at pp. 5-24 of the Review Book, were annexed to Dr Klapper’s certificate and that they were sealed by the red seal which Dr Klapper certifies to be the official seal of the FRG.
Mr Knauder raised four objections. First, he said that Dr Klapper was not an officer of the extradition country. Second, he said that Dr Klapper must have signed the certificate after it was sealed. Third, he said that the “front seal”, which I assume to be the red seal, related only to the certificate and not to the supporting documents. Fourth, he said that although translations were provided of the supporting documents, not all of the seals were translated.
The first submission is contrary to the views expressed by the full Court in Prabowo v Republic of Indonesia (1997) 74 FCR 599 at 603 (“Prabowo”). That decision is authority for the proposition that the word “officer” is not to be confined narrowly. All that is required is that the person be an officer “in or of” the Requesting State. The person must be the holder of a public rather than a private office in or of the State. It is not necessary that the officer be a judicial officer of the Requesting State.
I am satisfied that Dr Klapper was the holder of a public office of the FRG and that, accordingly, he was an officer within the meaning of that term as stated by the full Court in Prabowo.
The second submission seems to me to miss the point. Dr Klapper could not give his certificate until the documents were received from Berlin. They were then secured to Dr Klapper’s certificate by the seal which Dr Klapper certified to be the original seal of the FRG. Clearly, Dr Klapper could not give his certificate until he had received the supporting documents.
As to the third submission, it seems to me that the effect of Dr Klapper’s certificate is that he has certified that the supporting documents, which were annexed and secured by the red seal, related to the extradition request. In Cabal v United Mexican States (No. 3) [2000] FCA 1204 at par 170 (“Cabal”), French J said: -
“A certificate may be endorsed upon the document in question. It may also appear in a separate document provided that it identifies the document to be authenticated and attests its genuineness. There is no mandate for imposing a technical requirement not derived from the meaning of the word or the terms of the Act which would require a certificate to be endorsed upon or attached to the document to be certified.”
His Honour went on to state at par 172: -
“In my opinion the sealing of supporting documents for the purposes of s 19(7) may be effected by a seal placed on the first page of the bundle provided that it is of such a nature and so placed that it relates to all of them and purports to seal all of them.”
His Honour stated that this conclusion accorded with that which was reached by Katz J in Bennett v Government of the United Kingdom [2000] FCA 916 at par 29.
Accordingly, in my view, the supporting documents were duly authenticated for the purposes of s 19(7)(a) because they purported to be certified by an officer of the extradition country and the documents purported to be sealed with an official or public seal in accordance with s 19(7)(b) of the Act.
As to the fourth point, it seems to me that Dr Klapper’s certificate contains the necessary translation. Even if this is not correct, the FRG is entitled to rely upon the seals appearing on each page of exhibit 3. There are translations of these seals and they satisfy the statutory purpose of ensuring the genuineness of the documents placed before the magistrate: Prabowo at 603 and Cabal at par 169.
Accordingly, I am of the view that the documents contained in exhibit 3 comprised a duly authenticated statement in writing in accordance with s 19(3)(c)(i) and a duly authenticated statement in writing setting out the conduct constituting the offences in accordance with s 19(3)(c)(ii) of the Act.
DOUBLE CRIMINALITY
S 193(c)(ii) of the Act requires the Requesting State to produce to the magistrate a duly authenticated statement setting out the conduct constituting the offence.
In De Bruyn, at 292, Hill and Hely JJ referred to the importance of identifying the “conduct constituting the offence.” As their Honours pointed out, the production of a written statement setting out the conduct is an essential step in the extradition process. As their Honours observed, the magistrate is required to determine whether the conduct is an offence under Australian law; see s 19(2)(c). Their Honours also pointed out that it is implicit in s 19(2)(c) that the s 19(2)(c) test is to be applied to the statement of conduct under s 19(3)(c)(ii): see De Bruyn at 292.
In Zoeller at 297, the Full Court stated that s 19(3)(c)(ii) requires that there be produced to the magistrate a statement of the acts or omissions by virtue of which the offence is alleged to have been committed. Their Honours also pointed out that what is required is a statement of what is alleged to have been done or omitted, not a mere restatement of the charge in respect of which extradition is sought.
The statement of conduct in the present case is to be found in the statement of the charges appearing at pp. 16-18 of the Review Book. Ten charges are set out in the English translation from the German statement of charges appearing on pp. 6 - 8 of the Review Book.
The question of whether each statement of conduct meets the requirements of s 19(3)(c)(ii) is a matter for practical judgment and not for “over zealousness”; the “acts or omissions” which must be established are the elements or ingredients of the offence, not the evidence adduced to prove the acts or omissions: see Zoeller at 295 and Wiest at 502-503.
The statement of conduct on pp. 16-18 of the Review Book seems to be a literal translation from the German language. Having regard to what was said in Zoeller, a practical and common sense approach must be taken to the statement in the exercise of judgment as to whether it satisfies the requirements of s 19(2)(c).
The question, which arises, is whether if the acts or omissions set forth in paragraphs 1-10 of the statement of conduct had taken place in New South Wales, they would have constituted an offence carrying a penalty of not less than 12 months imprisonment. Mr Bracks submitted that each of the paragraphs would have constituted an offence under s 178A, s 178BA and/or s 179 of the Crimes Act.
Section 178A of the Crimes Act sets out the offence of fraudulent misappropriation. Section 178BA sets out the offence of obtaining money or property by deception. The deception that must be established is a deception as to the present intentions of the person creating the deception. Section 179 sets out the offence of false pretences. It is necessary, for this offence to be established, that the accused obtained money or property by a false pretence or by a wilfully false promise.
In my opinion, the statements of conduct set forth in paragraphs 1, 2 and 10 would not give rise to an offence under any sections of the Crimes Act referred to above. This is because the statement of conduct uses the words “was not ready and in the position” or similar wording. This is to be contrasted with the use of the words “had not the intention” or “did not intend”.
As Mr Knauder’s written submissions pointed out, a person may not be ready or prepared to do something but that does not mean that he or she does not intend to do it. In my opinion, the use of the words “not ready” in paragraphs 1, 2 and 10 suggest that this term has a different meaning from “the intention” in the other paragraphs. I do not regard this as an overly zealous approach.
Mr Knauder submitted that in relation to counts 5-7, the final paragraph of the statement of facts relates only to counts 7 and not to counts 5 and 6. Thus, Mr Knauder submits that the words “from the beginning he did not intend… to repay the amounts” relates only to the seventh count. In my opinion, a practical and commonsense approach to the statement does not support Mr Knauder’s submission.
It follows that I accept Mr Bracks’ submissions that the statements set forth in paragraphs 3-9 constitute duly authenticated statements in writing setting out conduct which satisfies the double criminality requirement set forth in s 19(2)(c) of the Act. I should add that each of the offences carries a penalty of imprisonment for a period of not less than 12 months.
The offences to which the statements of conduct correspond are as follows: in relation to par 3, sections 178A, 178BA and 179 of the Crimes Act; in relation to par 4, sections 178A, 178BA and 179 of the Crimes Act; in relation to pars 5-7, sections 178BA and 179 of the Crimes Act; in relation to pars 8 and 9, sections 178BA and 179 of the Crimes Act.
It follows from what I have said above that pursuant to s21(2)(a) of the Act I confirm the order of the Magistrate made on 1 March 2002 under s 19(9) of the Act, Frank Andreas Knauder is eligible for surrender to the Federal Republic of Germany in relation to seven of the ten extradition offences specified in the schedule to the Magistrate’s order, namely those extradition offences specified in paragraphs 3-9 of the warrant of arrest.
It also follows from what I have said that I will quash, pursuant to s 21(2)(b) of the Act the order of the Magistrate dated 1 March 2002, that Frank Andreas Knauder is eligible for surrender to the Federal Republic of Germany in relation to the extradition offences specified in paragraphs 1, 2 and 10 of the warrant of arrest.
I should add that, since I have confirmed the order in relation to seven of the ten charges I do not order the release of Mr Knauder.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Associate:
Dated: 2 July 2002
Counsel for the Applicant:
The applicant appeared in person
Counsel for the First Respondent:
No appearance
Counsel for the Second Respondent:
Mr M Bracks
Solicitor for the Second Respondent:
Australian Government Solicitor
Date of Hearing:
24, 25 June 2002
Date of Judgment:
2 July 2002
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