Linhart, H. v Elms, E.E - [1987] FCA 763

Re: HARALD ROLF LINHART and PAULA BONGARDT
And: ELWYN EDGARD ERNEST ELMS; THE HONOURABLE LIONEL BOWEN
HER MAJESTY'S ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
and THE FEDERAL REPUBLIC OF GERMANY
No. G665 of 1987
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Extradition - Warrants issued for committal of applicants applican whether acts or omissions in respect of which surrender requested were set out in warrants - principle of double criminality.

Extradition (Foreign States) Act 1966 ss.4, 15, 16, 17, 18.

HEARING

SYDNEY

#DATE 14:12:1987

Counsel for the Applicants: M.H. Tobias Q.C., S.M. Littlemore

Solicitors for the Applicants: Hunt & Hunt

Solicitors for First Respondent: Crown Solicitor

Counsel for the Second and P. Flemming Q.C.,
Third Respondents: P. Dwyer

Solicitor for the Second Australian Government
Respondent: Solicitor

Solicitor for the Third Director of Public
Respondent: Prosecution

ORDER

1. Declare that:

(a) the warrants of committal are invalid to the extent that they are based on the charges referred to in recital (a)(iii) of the warrants; (b) otherwise the warrants are valid.

2. Make no order as to costs.

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

JUDGE1

The applicants, Harald Rolf Linhart and Paula Bongardt, are German citizens; they entered Australia in November 1985. In January 1987, warrants for their arrest were issued by a judge of the third respondent, the Federal Republic of Germany. In April 1987, a warrant for the apprehension of each applicant was issued by a Magistrate pursuant to s.16(1)(b) of the Extradition (Foreign States) Act 1966 ("the Act"). In May 1987, a notice was issued by the Attorney-General, the second respondent, pursuant to s.15(1)(b) of the Act. Subsequently, proceedings were brought under s.17 of the Act. So far as presently relevant, s.17(6) provides:

"(6) If...the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) 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;.... (Emphasis added)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Linhart, H. v Elms, E.E

Details

AGLC: Linhart, H. & Anor v Elms, E.E. & Ors [1987] FCA 763
Case: [1987] FCA 763
Decision Date: 14 DECEMBER 1987

CaseChat Overview and Summary

Linhart, H. v Elms, E.E. was a case before the Federal Court of Australia, which involved a dispute over the validity of warrants issued for the extradition of the applicant, H. Linhart, to the United States. The central issue was whether the charges set out in the extradition warrants were valid, specifically whether the acts or omissions for which extradition was sought were criminalised under both Australian and United States law. This principle, known as the principle of double criminality, requires that the acts for which extradition is sought must be criminal in both jurisdictions.

The court was required to determine whether the warrants were valid and whether the charges contained within them were adequately supported by the relevant legal provisions. In particular, the court needed to consider whether the acts or omissions described in the warrants were criminalised under both Australian and United States law, as required by the principle of double criminality. This involved a detailed analysis of the relevant provisions of Australian and United States law and the application of those laws to the specific charges set out in the warrants.

The court found that the warrants were valid in all respects except for the charges referred to in recital (a)(iii) of the warrants, which were not criminalised under Australian law. The court held that the principle of double criminality required that the acts or omissions for which extradition was sought must be criminal in both jurisdictions. As the charges in question were not criminalised under Australian law, the warrants were invalid to the extent that they were based on those charges. However, the court found that the warrants were otherwise valid and did not make any order as to costs. This decision highlights the importance of ensuring that extradition warrants comply with the principle of double criminality and that the charges set out in those warrants are adequately supported by the relevant legal provisions.

Orders

Orders of the court

1. Declare that:

(a) the warrants of committal are invalid to the extent that they are based on the charges referred to in recital (a)(iii) of the warrants; (b) otherwise the warrants are valid.

2. Make no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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