Parker, G v Federal Republic of Germany

[1997] FCA 614

CATCHWORDS

EXTRADITION - review under s 21 of the Extradition Act 1988 - warrant signed by magistrate shortly after decision announced - whether determination in fact made or recorded in writing - whether all available information concerning identity and nationality accompanied request - information in possession of Interpol in Germany - whether available to government of Federal Republic of Germany - whether identification - whether description of each offence - whether statements of acts or omission - failure of earlier extradition application - whether equivalent criminal conduct

WORDS AND PHRASES - "available information" - "record in writing"

Extradition Act 1988 (Cth) ss 2(1), 19(9), 192(2)(b), 21(2)(c)

Extradition (Federal Republic of Germany) Regulations 1990 (Cth) Articles 9, 11

Papazoglou v The Republic of the Philippines Full Court of the Federal Court, unreported, 17 April 1997

Weissensteiner v The Queen (1993) 178 CLR 217

Parker v Federal Republic of Germany

(No. TG 9 of 1997)

Judge: Heerey J

Date: 10 July 1997

Place: Melbourne (heard in Hobart)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No. TG 9 of 1997

GENERAL DIVISION

B E T W E E N:

G PARKER

Applicant

- and -

FEDERAL REPUBLIC OF GERMANY

Respondent

JUDGE: Heerey J

DATE: 10 July 1997

PLACE: Melbourne (Heard in Hobart)

MINUTES OF ORDER

The Court orders that:

1.The Order of Philip Wright, Esq, Magistrate, made on 14 May 1997 whereby his Worship determined that the applicant was eligible for surrender for the extradition offences for which extradition was sought by the respondent Federal Republic of Germany, and the Warrant issued by the said Magistrate on the same day, are quashed pursuant to s 21(2) (b)(i) of the Extradition Act 1988 (Cth).

2.Direct the said Magistrate to order the release of the applicant.

3.Order that, subject to para 4 hereof, the respondent pay the applicant's costs of this application to be taxed.

4.Order that the parties have leave to file and serve written submissions within seven days as to the costs of the bail application on 29 May 1997 and the costs of proceedings before the said Magistrate.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No. TG 9 of 1997

GENERAL DIVISION

B E T W E E N:

G PARKER

Applicant

- and -

FEDERAL REPUBLIC OF GERMANY

Respondent

JUDGE: Heerey J

DATE: 10 July 1997

PLACE: Melbourne (heard in Hobart)

REASONS FOR JUDGMENT

The applicant seeks review under s 21(1) of the Extradition Act 1988 (Cth) (the Act) of an order made by Phillip Wright, Esq, Magistrate on 14 May 1997 purportedly determining that the applicant was a person eligible for surrender to the respondent the Federal Republic of Germany (FRG) in relation to certain extradition offences. I say "purportedly" because one of the issues in this case is whether, in the light of some disputed evidence as to what took place in the Magistrates' Court, his Worship did in fact make a determination under s 19(9) of the Act.

The Earlier Proceedings

By a warrant dated 31 October 1991 (the 1991 warrant) issued by the District Court at Koblenz in Germany the FRG sought the arrest of the applicant. The charge in the warrant, as translated, read as follows:

The person charged is highly suspicious of having traded with narcotics in a not insignificant quantity and without licence at least from July 1989 until at least June 1991 in Lahnstein, Koblenz and at other places by at least 9 independent criminal acts conjointly and on a commercial basis as a member of a gang who has combined for the continued execution of such acts.

Under the heading "Facts of the Case" it was alleged that the applicant with certain other named people was a member of a group which

... organised heroin transports from Thailand to Australia in the abovementioned period, each transport based on a new planning process and a new decision to commit the crimes, whilst the person charged and Mr Laskowski were assigned the tasks of recruiting couriers in the area of Lahnstein, Koblenz and at other places in the Federal Republic of Germany and partly in Austria, of booking travels, procuring visas as well as paying cash advances on the agreed-upon courier compensation.

The following transports have been determined so far:

There then followed nine paragraphs, each describing briefly and in conclusionary terms an allegation. For example the first paragraph states:

1.On February 1991 the person prosecuted separately Mrs Elisabeth Maria Wriosz carried at least 200 grammes [sic] of heroin from Bangkok to Sydney after she had been recruited by the person charged and Mr Laskowski.

On 20 May 1992 Stephen Estcourt, Esq, Magistrate held that the applicant was not eligible for surrender in relation to the offences the subject of the 1991 warrant. His Worship said:

The documents produced do not contain the clear statement envisaged by Article 9(3). They contain a hotchpotch of statements of suspicions, some unsupported allegations or assertions and a description of offences which are "liable to prosecution". No doubt there is also in evidence an attempt to formulate a charge or charges and specify conduct relevant to such charge or charges but that attempt does not go far enough.

I conclude therefore that Article 9(3) of the Treaty has not been complied with in that the documents produced by The Federal Republic of Germany do not contain a description of each offence for which Mr Parker is claimed nor a statement of the acts or omissions alleged in respect of each such offence. [Emphasis in original]

The Treaty referred to is the Treaty between Australia and the FRG given statutory force by s 11 of the Act and the Extradition (Federal Republic of Germany) Regulations No. 134 of 1990 (Cth). Articles of the Treaty relevant for present purposes are as follows:

ARTICLE 9

(1)A request for the extradition of a person claimed shall be in writing. All documents furnished in support of a request for extradition shall be duly authenticated.

(2)The request shall be accompanied by:

(a)all available information concerning the identity and nationality of the person claimed; and

(b)a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law and in either case a statement of the punishment that can be imposed.

(3)A request for the extradition of a person claimed for the purpose of prosecution shall be accompanied, in addition to the documents provided for in paragraph (2), by a warrant for the arrest, or a copy of the warrant for the arrest of the person claimed, a description of each offence for which the person is claimed, and a statement of the acts or omission alleged against the person claimed in respect of each such offence.

(4)A request for the extradition of a person claimed for the carrying out of a sentence shall be accompanied, in addition to the documents provided for in paragraph (2), by a summary statement of the facts of the case unless they appear from the other documents, such documents as provide evidence of the final and binding conviction and a statement that the sentence is immediately enforceable and of the extent to which that sentence has not been carried out.

...

ARTICLE 11

(1)If the Requested State considers that the information furnished in support of the request for the extradition of a person claimed is not sufficient to fulfil the requirements of its law with respect to extradition, that State may request that additional information be furnished within such time as that State specifies.

(2)If the person claimed is under arrest and the additional information submitted as aforesaid is not sufficient or is not received within the time specified by the Requested State, he shall be discharged from custody, but such discharge shall not bar a subsequent request in respect of the same offence.

The FRG did not appeal against Magistrate Estcourt's decision. The Current Proceedings

The warrant at present under consideration (the 1996 warrant) was issued at Koblenz on 19 July 1996. It alleges that a person named George Parker, born on 1 June 1939 in Bocki/Poland alias Gregory Parker born on the same date and at the same place and alias 13 other different names and/or dates of birth was:

... highly suspected by seven legally independent acts between November 1990 and June 1991 in Lahnstein, Koblenz (both located in Germany) and at other places having traded with narcotics in a not insignificant quantity without a licence pursuant to section 3, paragraph 1 number 1 of the Narcotics Law and thus having acted conjointly as a member of a gang who has combined for the continued commission of such acts.

Under the heading "Facts of the Case" there are some nine and a half pages. There is an introductory passage as follows:

The accused George Parker, who possesses the Polish as well as the Australian citizenships, was a member of a group of perpetrators in the period of November 1990 through June 1991, which included the following persons accused separately Andreas Laskowski, Jan Niczyporczyk, Peter Bartosiewicz, Mark Morgan and Jacek Rypinski. The members of this group, in particular the accused Mr. Parker, had combined to organise future heroin transports from Thailand to Australia and sell the heroin in Australia with the intention to make a profit, whilst each of the members had been assigned a specific and individual task. Based on this planning, the accused Mr. Parker and Mr. Laskowski were assigned the task of recruiting the heroin carriers (couriers) in the area of Koblenz and Lahnstein and at other places of the Federal Republic of Germany and partly in Austria. Furthermore he was assigned the task to procure the necessary documents and provide the Australian visa to the couriers and provide the carriers with a cash advance on the agreed-upon carrier compensation. For these activities carried out in the interest of the perpetrators (gang) it was agreed that the accused Mr. Parker participated in equal shares in the profit gained by the sale of heroin in Australia. The accused Mr. Parker acted in all cases with the intention to create a source of continuous income for a certain period of time and in a certain magnitude by repeatedly committing those crimes.

Based on the agreed-upon assignment of individual tasks within the gang the other perpetrators mentioned above (Niczyporczyk, Bartosiewicz, Morgan, Rypinski) were responsible for procuring the heroin in Thailand, delivering these narcotics to the couriers in Thailand taking over the heroin in Australia and selling it afterwards in Australia with a profit.

There then follow seven numbered paragraphs giving in consider- able detail allegations of conduct of the accused person whose extradition is sought. For example, para 1 alleges that on 9 November 1990 the accused booked a return ticket through a travel agent in Vienna (whose name and address is given) repetitions under the name of "Krause" for a return trip from Vienna via Bangkok to Sydney including hotel reservations. It is alleged that after the accused found out "for unknown reasons" the courier Krause was no longer available for the planned heroin transport he recruited the witness Eleanora Kominik in Vienna as a courier for the narcotics. He promised to pay her US$5,000.00 plus travel expenses. When Kominik agreed to act as a courier, the accused then had the travel documents changed on 13 November 1990 to her name and paid the whole travel expenses in instalments up to 15 November 1990. On 21 November 1990 the accused gave Kominik all travel documents including a cash advance of 5,000.00 Austrian shillings. On 22 or 23 November 1990 in Bangkok Kominik was given by a "not yet clearly identified member of the gang" a total of at least 320 grams of a heroin mixture with an active substance of at least 69 per cent heroin hydrochloride. Kominik was advised to pass the narcotics in Sydney on to two named persons. It is alleged that the witness Kominik was "suddenly no longer willing to carry out the transport", hid the narcotics in her hotel room in Bangkok and travelled without the heroin to Melbourne where she disclosed the matter to the Australian police authorities. After informing the police in Thailand, the heroin could be seized in Bangkok. The accused is said to have succeeded by unknown means to find out the whereabouts of Kominik in Melbourne. He telephoned her on 24 November 1990 "to ask for the narcotics". The accused and other members of the gang "could not make any profit in this case, although they had expected such a profit".

Material Tendered on Bail Application

On 10 April 1997 the applicant was arrested on a provisional warrant issued under s 12 of the Act. On the same day he was taken before Magistrate Wright and counsel on his behalf made an application for bail. The bail application was adjourned part heard to 14 April when the application was refused. In the course of the hearing on that day Ms Julie Read, counsel for the FRG, tendered documents which she said were "relevant to the likelihood of Mr Parker absconding".

The documents tendered by Ms Read (hereafter "the identification documents") where also tendered in the course of a further bail application before me on 30 May (which was also refused). On this occasion the FRG relied on an affidavit sworn on 29 May by Michael Bernard McKay who is an officer of the Australian Federal Police stationed at Hobart. Mr McKay deposed, amongst other things, as follows:

The Australian Federal Police have received from Interpol Australia in Canberra certain information with respect to Gregory Parker (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar). Now produced and shown to me and marked A is a true copy of that information received from Interpol Australia.

The exhibit consists of the identification documents. The first of such documents is a telex which appears to be from Interpol in Canberra to the Federal Police in Tasmania. The date appears to be 3 November 1989 and concerns a "Polish National/Australian".

The second document, which bears the date 29.11.89, is a letter from Interpol Wien addressed to Interpol CANBERRA - WIESBADEN. Detailed file reference numbers are given both for Canberra and Wiesbaden. The body of the message is as follows:

SOBOLEWSKI Grzegorz, born,1.11.1939 (alias 1.6.39).

stateless;

fugitive,

Attached please find photograph and fingerprints of SOBOLEWSKI Grzegorz, born 1.11.1939 in Bock7/Poland, Australian national.

His identity has not been established with certainty.

His latest recording took place in Vienna on 6.10.89 under name BENET Grzegorz,born 1.6.39 in Bocki/Poland, when he was arrested for escape from prison.

Our files contain identical fingerprints, taken as follows:

a)under name SOBOLEWSKI Grzegorz, b. 1.11.39 Bocki/Poland, 31.1.74 Vienna, dangerous threats,

6.6.74Vienna, burglary,

26.11.74 Vienna, shoplifting.

17.12.80 Vienna, fraud.

b)under name SOBROLEWSKI Gregor, born 1.11.39 in Botzki/Poland, on 29.11.79 in Klagenfurt, for use of documents belonging to others.

c)under name DIXON Gregory, born 1.6.39 in Bocki/Poland, on 4.5.85 in Vienna for theft.

Please let us know all relevant information you may possess or be able to obtain about this individual.

Regards.

END

Interpol Vienna

(Danich).

The third document is a photocopy headed A-156/4-1994 and contains three photographs of a man with the caption "PARKER George" and ten photographs of finger prints. Details including date and place of birth, names of parents, and aliases are given, including the statement:

Identity not confirmed - dual nationality: Polish and Australian (not confirmed).

and details of passports issued. Amongst other things the following is stated:

COUNTRIES LIKELY TO BE VISITED: Australia, Thailand

There is a summary of the facts of the case, alleging the recruiting of couriers and transport of heroin from Bangkok to Sydney. The document concludes:

REASON FOR NOTICE: Wanted on arrest warrant No. 30 GS II 1735/93, issued on 22nd April 1993 by the judicial authorities in Koblenz, Germany, for organised heroin trafficking with accomplices.

EXTRADITION WILL BE REQUESTED FROM ANY COUNTRY.

If found, please detain and immediately inform INTERPOL WIESBADEN (Reference PR 32-03 S-279 762 f.A. of 30th March 1994) and the ICPC-Interpol General Secretariat.

Surrender Application

The application for surrender came before the Magistrate on 2 May. The FRG was represented by Mr Mark Weinberg QC and Ms Julie Read and the applicant by Mr Michael Hodgman QC and Mr Leigh Sealy. On that day his Worship reserved his decision and indicated that he would give it on the following Wednesday, 14 May. At the end of proceedings on the 2nd, Mr Weinberg made some submissions in reply which included the following:

My friend says that these charges can't be drawn up. We have drawn them up. We have them available to your Worship in proper form for your Worship to put into an order if your Worship is desirous of making an order. Any time that your Worship wishes to see and consider a description - a designation of the charges now available. They have been drawn. They are very easy to draw. And they are very simple to include in any appropriate order.

Mr Hodgman said:

We haven't seen them.

Mr Weinberg said:

You made a challenge saying that we haven't done it. I was simply correcting the fact that we have done it. They are available.

On 14 May Mr Sealy and Ms Read appeared to take judgment. Unfortunately the tape recording of proceedings on that day has been mislaid. Affidavits deposing as to what took place were sworn by Mr Sealy, Ms Read, and two other practitioners from Mr Sealy's firm who happened to be present. As might be expected, the various recollections of those deponents were not completely consistent. Some of them were cross-examined. I have no doubt that all concerned were endeavouring to give an honest account of events. On the balance of probabilities, I find that the sequence of events was as follows.

Shortly before his Worship came into the court Ms Read informed the Magistrate's clerk that she had prepared a draft warrant for his Worship's consideration in the event that he determined that the applicant was eligible for surrender.

The Magistrate announced that he had determined that the applicant was eligible for surrender to the FRG and that he published his reasons. The clerk then handed copies out of a typed document of six pages. The concluding sentence of that document read:

I determine that the respondent [i.e. the present applicant] is eligible for surrender for the extradition offences for which extradition is sought by FRG.

After announcing his decision the Magistrate said words to the effect that he understood Ms Read had prepared a document. Ms Read said that she had. She handed up a document saying that it contained a number of typographical errors. Ms Read directed the Magistrate's attention to some parts of the document. The Magistrate appeared to make hand written alterations and then to sign the document. He then handed it to the clerk. The period of time between the Magistrate receiving the document and signing it was the subject of varying estimates by the witnesses, ranging from 15 seconds to 2 minutes. Mr Sealy then asked what was the origin of the document. The Magistrate said "Ms Read just handed it to me". Mr Sealy asked: "When did your Worship first see the document?" The Magistrate replied: "About two minutes ago".

There was then a short adjournment of some 5 to 10 minutes to enable Ms Read to telephone for instructions as to whether the applicant would continue to be held in custody at Risdon Prison pending a review by the Federal Court of the determination. After that brief adjournment it appeared Ms Read was unable to give the assurances sought and the Magistrate declined to give any direction.

The document handed up by Ms Read was in Form 12 of Regulation 3. It commenced as follows:

WARRANT UNDER SUBSECTION 19 (9) ORDERING COMMITTAL

TO PRISON TO AWAIT SURRENDER

To all police officers within the meaning of the Extradition Act 1988 in Tasmania And to the person in charge of Her Majesty's Prison, Risdon in the State of Tasmania.

WHEREAS:

(a)Proceedings have been conducted pursuant to subsection 19(1) of the Extradition Act 1988 to determine whether GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) is eligible for surrender in relation to the extradition offences of

iIn or about November 1990 at Vienna in the Republic of Austria GREGORY PARKER also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) did trade with narcotics in an not insignificant quantity without a licence pursuant to section 3, paragraph 1 number 1 of the Narcotics Law and thus having acted cojointly [sic] as a member of a gang who combined for the continued permission of such acts;

There follow paragraphs numbered ii to vii which are in precisely the same form except that in the first line there are different dates and places. In each paragraph the word "cojointly" has been typed and the letter "n" handwritten above between the o and the j and initials written alongside. The warrant continues:

for which the surrender of GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) is sought by the Federal Republic of Germany, an extradition country;

(b)The supporting documents in relation to those offences, within the meaning of subsection 19(3) of that Act have been produced to me;

(ba)Other documents have been produced to me as required by limitations, conditions, exceptions or qualifications subject to which that Act applies in relation to the Federal Republic of Germany;

(c)I am satisfied that, if the conduct of GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) constituting the offence in relation to the Federal Republic of Germany had taken place in Tasmania, being the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) was received, that conduct and/equivalent conduct/would have constituted an extradition offence in relation to that part of Australia;

(d)GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) does not satisfy me that there are substantial grounds for believing that there is an extradition objection in relation to the following offences for which surrender is sought:

There then follow paragraphs i to vii in identical terms to those already set out, except that the word "cojointly" has not been altered. The warrant continues:

(e)Having determined that GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) is eligible to surrender to the Federal Republic of Germany in relation to the extradition offences of

Again the seven paragraphs i to vii appear in identical form. Again there is no alteration to "cojointly". The warrant concludes:

Now therefore I Philip John Annett Wright, a Magistrate within the meaning of the Extradition Act 1988 under subsection 19(9) of that Act, hereby order you to commit GREGORY PARKER (also known as George Parker, Gregor Sobolewski, Grzegorz Sobolewski, Gregory Sobolewski, Gregory Benet, Grzegorz Benet, Gregory Kent, Gregory Watson, Gregory Dixon, Gregory Janusch and Gregory Slogar) to H.M. Prison, Risdon to await, in relation to those offences, surrender under a surrender warrant or temporary surrender warrant or a release pursuant to an Order under subsection 22(5) of the Act.

DATED this 14th day of May 1997.

...(Sgd) Philip Wright......

(Signature and designation of

Magistrate issuing warrant)

The words and figures underlined are in handwriting.

Failure to Determine or Record in Writing

Grounds 1 and 2 of the application for an order of review allege that the Magistrate failed to "lawfully determine or to personally determine at all" the extradition offences for which surrender had been sought and "totally failed to personally record in writing" the extradition offences.

Section 19(9) of the Act provides relevantly as follows:

Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a)by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or released pursuant to an order under subsection 22(5);

(b)inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and

(c)record in writing the extradition offence or extradition offences in relation to which the Magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney General.

Counsel for the applicant, correctly in my opinion, did not press an argument that s 19(9)(c) meant that the Magistrate had to physically write down the extradition offences. Plainly an obligation to "record in writing" is satisfied when the person signs or otherwise authenticates a document which has been written, typed or printed by some other person.

Counsel however argued that there had been no determination by the Magistrate because he did not read the warrant handed up by Ms Read before signing it. I reject this contention. At the previous hearing, senior counsel for the FRG had foreshadowed the production of just such a document. In truth of course it was the statutory warrant which would have been required anyway if a determination of eligibility for surrender were to be made. When the document was produced to the Magistrate, it would have been apparent to him that it was the form of warrant which would need to be signed, he having announced his decision that the applicant was eligible for surrender. The group of seven charges, repeated on three occasions in the warrant, corresponded with the seven statements in the 1996 warrant. That would have been apparent at a quick glance. In the way the case was conducted, no issue arose as to whether some charges rather than others might have been the subject of an order. Moreover the Magistrate was entitled to rely, as judicial officers do every day, on the competence and good faith of counsel when presenting a document for signature or authentication which accords with a decision already pronounced. In the circumstances of this case, common sense dictates that the Magistrate did not have to literally read the document word for word as though it were something totally new, without any existing context of which he was aware.

I am unable to make any sensible finding, expressed in seconds or minutes, as to the period between the Magistrate receiving the document and his signing it. I accept the period was short, that it might well have given the appearance that he did not read the document word for word, and I find that he did not in fact do so. However in the circumstances I am satisfied that before appending his signature the Magistrate had sufficient time to, and did in fact, appraise himself of the nature and effect of the document and satisfy himself that it was a document which he should sign, consistently with the decision he had announced.

All Available Information Concerning Identity and Nationality

Counsel for the applicant contended that, contrary to the requirements of Article 9(2)(a) of the Treaty, the request for extradition was not accompanied by all available information concerning the identity and nationality of the person whose extradition was requested. The information in question is said to be that contained in the identification documents. It was accepted by counsel for the FRG that those documents were material that was before the Magistrate within the meaning of s 21(6)(d) of the Act because they had been handed up to the Magistrate by Ms Read on the hearing of the bail application in the circumstances already described. Nor was it in issue that the identification documents did not accompany the extradition request.

The critical question therefore is whether the identification documents, or any of them, constituted information "available" to the Requesting State (the FRG) at the time the extradition request was made.

The first of the identification documents can be disregarded as it was an internal Australian document sent from Interpol in Canberra to the Australian Federal Police in Tasmania. However, the second document, the one headed Interpol Wien, was on its face sent to Wiesbaden, which it is accepted is a city in Germany, and at a time prior to the forwarding of the request. It contains information concerning the identity and nationality of the person claimed, including the comment that the person's identity "has not been established with certainty". As to the third document, I infer from the reference number which includes the year 1994 that it came into existence before 1996. The concluding request to inform Interpol Wiesbaden, and the reference to "Countries likely to be visited" as Australia and Thailand, give rise to the inference that it is not an Australian document but emanated from Weisbaden. The third document also contains information as to the identity and nationality of the person sought to be extradited.

Counsel for the FRG argued that Article 9(2)(a) did not apply because the documents "may, for example, have contained information which was outdated, or which had been superseded".

The short answer is that counsel for the FRG considered the identification documents sufficiently relevant to advance them in opposing the application for bail. Moreover, information such as birth dates, names, fingerprints and previous convictions of a person whose extradition is sought are historical events and circumstances which, if true, do not become "outdated" in relation to the issue of identity.

The question then becomes whether the information document was "available information", that is to say available to the FRG at the time the request was forwarded. The definitions of the adjective "available" given by the Macquarie Dictionary include "suitable or ready for use; of use or service". The Shorter Oxford English Dictionary definitions include "capable of being turned to account; hence, at one's disposal, within one's reach".

In the context of Article 9(2)(a) the entity to which information has to be available is a sovereign government. Obviously it would not be enough merely to show that the information in question was physically present within the territory over which that government had jurisdiction. But if "available" in this context means, as I think it does, that the information was at hand" or at the government's "disposal", that requirement would be satisfied if the information was in the possession of that part of the apparatus of government whose function it was to hold information of the kind in question. If the person or entity holding the information was not constitutionally part of the apparatus of government, it would be nonetheless "available" if a relevant part of the government could obtain access to that information. Such access might come as a result of the exercise of governmental power, or by arrangement in the usual course of carrying out governmental functions.

The information in question came into the possession of an Interpol office in Germany. Since the particular governmental function being exercised by the FRG in the present case was obtaining extradition from another country of a person alleged to have infringed the laws of the FRG, the most logical place for the FRG government to seek information relating to the identity and nationality of such a person would be the offices of Interpol, a body whose raison d'être is international co-operation and intelligence sharing between law enforcement bodies. And if the government of the FRG sought such information from Interpol, there is no logical reason why the latter would not provide it.

In dealing with this issue the learned Magistrate said:

I agree with the submission that the words "all available information" cannot mean every act or thing ever in existence which is or was indicative of the identity and nationality of the respondent to the application. Proof to certainty of identity and nationality is not required by the Act or Treaty and the two documents to which the Republic referred on the bail application pursuant to section 15, even though in the opinion of the authors thereof identity and rationality are not certain or conferred do concern those issues and may tend to, as they appear to, aid proof of those issues. Although the person who appeared before me made no concession or admission neither did he give or adduce evidence that he is not the person to whom the request is made and to whom the warrant made on 19 July 1996 was issued; section 19(5) does not prohibit such evidence and see McDonald v Attorney-General (1980) 24 SASR 294 at 299-300. [Emphasis in original]

With respect to the learned Magistrate, the case for the applicant did not require the extravagant construction put on the expression "all available information". Moreover, as I read that passage, his Worship appears to have confused two distinct issues. First, did all available information concerning identity and nationality accompany the request? Secondly, was the person appearing before the Magistrate the person sought in the extradition request? The first issue is a matter of compliance with legal pre-conditions for a surrender order. Extradition proceedings do not involve a determination of guilt or innocence. The question is whether there has been compliance with the provisions of the Act and, where the Act gives statutory force to a Treaty, the requirements of that Treaty. Neither the Act nor the Treaty contain any provisions giving a Magistrate, or this Court, power to waive non-compliance. The argument of the FRG implicitly accepted that a failure to comply with this particular requirement (and any requirement of the Act or Treaty) would be fatal. The second issue is simply a question of fact to be determined on the evidence before the Magistrate and the inferences which can be properly drawn from such evidence. I shall shortly turn to that second issue. But on the first issue I find that the second and third identification documents constituted information concerning the identity and nationality of the person claimed, that such information was available to the FRG at the time the request for extradition was made, but did not accompany the request. Accordingly I find there has been non-compliance with Article 9(2)(a) of the Treaty.

Identification

Although not a requirement explicitly stated in the Act, a Magistrate making a determination of eligibility for surrender under s 19(1) has to be satisfied that the person before the Court is the person referred to in the request. There was evidence before the Magistrate, including a photograph, on which he could be satisfied as to this. The applicant did not adduce any evidence on the issue of identification. On this issue the Magistrate was entitled to draw the inference that the person before him was the person sought: see Weissensteiner v The Queen (1993) 178 CLR 217.

Description of Each Offence

The 1996 warrant contained in my opinion an adequate "description of each offence for which the person is claimed" within the meaning of Article 9(3) of the Treaty. In comparison with the 1991 warrant, the excerpts already quoted will make it clear that the 1996 warrant contained much more detail and adequately described each of the seven extradition offences.

Statements of Acts or Omissions

Likewise, for the purpose of Article 9(3) of the Treaty there was a statement of the acts or omissions alleged against the applicant in respect of each such offence. The conduct, unlike that in the 1991 warrant, is not described in conclusionary terms.

Failure of Earlier Proceedings

Counsel for the applicant argued that the FRG was prevented from making the extradition request because of the fact that it had made the unsuccessful request in 1991 in respect of the same, or substantially the same, offences and Article 11 did not apply because the Requested State (Australia) had not considered the information furnished in support of the request was not sufficient.

Counsel's argument necessarily assumes that there is a general prohibition against the making of a second extradition request which is subject to a limited exception prescribed by Article 11. It is then said that this exception did not apply in the circumstances of the present case.

However, the assumption underlying this argument is in my opinion not correct. The criminal law defence of autrefois acquit has no application, because an application for extradition is not a prosecution. The making of a determination for eligibility for surrender is not a conviction. Neither is the dismissal of such an application an acquittal. Guilt is not in issue. The doctrine of abuse of process does not apply to extradition proceedings in a Magistrates' Court: Papazoglou v The Republic of the Philippines Full Court of the Federal Court, unreported, 17 April 1997.

Equivalent Criminal Conduct

Section 19(2)(c) of the Act provides that a person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(c)the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

As to this issue the learned Magistrate said:

I am satisfied within Section 19(2)(c) of the Act that if the conduct of the respondent alleged in Germany had been committed in Tasmania it would be punishable by imprisonment of not less than 12 months - under either State or Commonwealth legislation of which two of these examples are the Poisons Act 1971 [Tas] and the Customs Act 1901 [Cth] - Sections 47 and 233B - respectively.

In my opinion the Magistrate applied the correct test. It was not a matter of looking at the isolated physical acts of the applicant in Germany, such as for example buying airline tickets. "The conduct of the person" has to include the circumstances in which those acts were done and the relevant intention. Thus the Magistrate had to determine whether or not the applicant would have committed an offence under Australian (or Tasmanian) law had he recruited, in Tasmania, couriers with the intent that they travel overseas, acquire heroin, and import it into Australia. Such conduct would have constituted at least offences against the Tasmanian and Commonwealth statutes mentioned. The fact that, in relation to some of the conduct alleged, the German statute had an extra-territorial operation does not affect this conclusion. I should note that counsel for the FRG accepted that an essential element for present purposes was that the organisation of couriers alleged to have taken place was for the importation of drugs from Thailand to Australia. If the extradition offence was recruiting couriers in Germany for the transport of drugs from Thailand to some country other than Australia, different considerations would apply.

Conclusion

The ground relying on non-compliance with Article 9(2)(a) has been made out. All other grounds fail. Nevertheless it must follow that, pursuant to s 21(2)(b) of the Act, there will be an order quashing the order of the Magistrate and an order that the applicant be released.

I will order that the FRG pay the applicant's costs of this proceeding. The costs of the bail application on 29 May 1997 were reserved. The parties shall have liberty to file written submissions within seven days as to what order, if any, should be made in relation to those costs and the costs of the proceedings before the Magistrate.

I certify that this and the preceding twenty-two (22) pages are a true copy of the reasons for judgment of the Honourable Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:W M Hodgman QC and G L Sealy

Solicitor for the applicant:Piggott, Wood & Baker

Counsel for the respondent:M L Weinberg QC and J Read

Solicitor for the respondent:Australian Government

Solicitor

Date of hearing: 26 and 27 June 1997