Prevato, L.W. v The Governor Metropolitan Remand Centre & Ors Prevato, L.W. v R.P. Miszalski

DTRAIETIC'N - F:~vicv

of riecision of mzgistrate to commit

fugitive to prison to await warrant for surrender to Republic

of Italy - Alleged offences committed in

1979 and 1986 In

course of campalgn of opposltlon to school selection system

Powers of court reviewing magistrate's decision

- Meanlng of

requirement in extradition Treaty that offences

"punishable" by not less than two years imprisonment

Admlssibility in extradition proceedings

of statements made by

co-accused persons - hiether evidence in relation to charge

malicious damags showed necessary crlminal Intent

Admlssibility, on tender by fugitive, of subsequent statements

made by pro'secution

wltnesses retracting or qualifying

?vi&encp relied on by prosecution

- Admlssibility of statement

clo+,alned.

BC resulr: of improper or unlawfK1 questicnlng -

Whether przma facie case against fugitive in respect

of each

charFe - Contenr; of "evidence sufficient to Justify hls Lrlal"

- Whether =his formula involves consideration of

reasonableness of putting iugltive on trlai - Relevance of fact that evicicnce agamst fugltive is from accomplices fn

determining whether a jury "would not be likely

to convict"

L- fugitive at a trial 15 New South Wales - Khether offences charged agalnst fugitive are "offences

of a political

character" - Entitlement of magistrate to consider this

question.

Nilcox

Sydney

6 F'ebruaxy 1986

- - _

, I-

3 .

. I

F L e Droceedinus

The first Application (No.G.6 of 1986) is an

Extraditidn (Foreiqn States) Act and to the Admicistrative

application for review made both purskant to 5.18 of the challenges the vallfiity of the maglstrate's declsion that the

applicant is liable to be extradited. The second Application

(No.G.16 of 1986), which is founded only upon

the

kdminlstrative Decisions (Judicial Review) Act, seeks review

of the decision to commit

o prison, as distinct from orcering

that the applicant be

hflL elsewhere In custody, pendmg the

issue of the warrant for surrender;

in connection with that

matter it is said that

he magistrate denied to the applicant

nat9xal justice in that he afforded to him

20 opportunlty to

su3mit that

he should be held m custody otherwise than in

prlson. The respondents to the proceedings are the Governor of the Hetropolican Remand. Centre, in relatlon only to the

flrst Application, Mr Miszalski and the Attcrney-General.

Only the Attorney-General, of the respondents, has taken an

;ctive part in the hearln?, he pattinc submlscions in support

of xhe magistrate's order.

The appiicant is an Australian citizen, having been

born in this country on

7 May 1962. His parents, apparently.

had come to Australia from Italy.

They returned to Italy when

the applicant was aged about four

years, taking him with then?.

8 2 . 4.

He grew up X Italy.

During the last stage of his education.

ar; least, he llved in Tadua;

and lt is in respect of hls

attendance at an educational institution in

that city that his

present dlfflculties arlse. It appears tnat, lr. the period

1979-1950, he became assoclated wlth a number of ocher young

people -- mainly students -- who were opposed to what has been

described in t5e evidence

as "the 5ChOOl selecrior! system".

Neither the preclse nature

of this system nor

the reasons for

opposltion to lt appear from the evidence but nelther

of those

matters is material. Knat does matter is zhat the 6pplicant

is said

t o have cornmltted various crimnal offences in the

course of the campaign of opposition.

it is in relatlon to

these offences that

his extradition is now soughr;.

During k r c h and Aprll

l 5 e 2 some of the people

involved Ir. the campaign were lnterrogated. On l7 March a warrant vas issue6 by the 3eputy State AtLorney at

l032

Padua for

the apprehension of eleven nazed persons, lncluelng

the

applicant. The warrant charged 20 separate offences, not ail

involving all of the accused, but, as I understand the

warrant, Mr Prevato was alleged. by che warrant to Save been

associated m t h all but one offence. Trle numbers of the

counts are discontinuous and reach to no.60. The warrant

attributed to the applicant an address in Padua, but it

appears that he was not then arrested. The evldence does not

disclose his movements between that tlme and

29 September

1985, upon which date he was arrested in Sydney pursuant to

. .

warrant issuet bp a lccal naglstrate under the authorlty

5.16 of the Estradltion (Foreicn States! Act.

The applicant

was taken into custody at the Metropolitan Remand

Cencre, Long

2ay ?rlsor;, Malabar, where he remained untll my order f o r

release on 31 January 1986.

Following the arrest of the applicant

a requisition

was made by the Italian Government

to che Attorney-General

for

the Commonwealth of Australia for the surrender of Kr Prevato.

Cm 4 November 1985 the Attorney-General isslue2 a notice under

s.15(l)(b) of the Act, addresse? to any magistrate before whom

Mr Prevato mlqht be brought, indicating that

a requisition had

been made to

him as Attorney-General by the Republic of Italy

for the surrender of Mr Prevato, ”a	fugitive who is accused of
L

Lhe offences of ..... ” . There follower’ a list of L4 offences

- .

ic’,entrzled by	title and by reference	tc the article ~n the
r

~izaila

Penal Code creating the relevant offence.

3rocedure for committal and review

Section 17 of the Extradition (Foreimi States; Act d?als with the proceedlngs before

a magistrate in relatlcR

t?.e extradicion of a fugitive. The section was heavily

amended by the Extradition (Foreisn States) Amendment Act 1985

-- which Act took effect from

1 July 1985 -- an6 it was

further amended by the Statute

Law

(Miscellaneous Provisions)

(MO.?) Act 1985.

Ic a_cpears that no print of the latter Act

I . ’

c .

is yet available but cour.sel fsr the Attorney-General have

klndly made available a copy

of the Bill.

They indicate their

instructions that tni. flnal form of the Act followed that

the Bill and that these latter amendments came into force

shorcly before the

day, 23 December 1985, upon which the

msgiscrate committed the applicant to

prison.

Tne relevant provisions of 5.17, as Lhat secLion now

stands, are:

“ 1 7

. .

If the person was apprehended under a warrant issued in pursuance

of an authority

( 6 )

by the Attorney-General in a notice under

paragraph i5(1)

(a) or the Magistrate receives

a notlce by the Attorney-General under

paragraph 15(l)(b) and --

(a) there is produced to the Magistrate

!i) in the case

of a person who 1 s

accuses of an extraditlon crime --

( A ) 2 duly adthenficated

foreign warrant in respect

of the person issued In

the foreign state that

made the requisicion for

the surrender of the

person o r a duly

authentlcated 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

7 .

!C) a duly aLthenticatea

szatement In wrltlng

settlng out all the acts

or omissions ln respect of

vhich che surrender of the

person is requested; or

(ii) ...

and, if the applicatlon of t h i s Act

to the foreign state that made the

requisition for the surrender of the

perscn is subject to ar?y

llmitations, conditions, exceptions

or qualifications, any other

documents required by those

limitations, condi~ions,

exceptions

or qualifications to be produced:

and

(b)

the Magistrate 1s satisfled, after taklng Into accounc any evisence properly adduced by the person, that

the person is liable to be

surrendered to the foreign state

that mace the requlsition for the

surrender,

t h e Magistrate shall, either --

with the

form prescribed for the purpcses

-.f

this sub-section, commit tbe person

to prlson to await the warrant

the Attnrney-General for the

surrender 3f the person; or

!d) in the case

of a person --

(i) who has been charged

with an

offence that 1s alleoed to have

Secy. comm;Eced in hscralia,

belnq a charge that has not

been disposed of; or

(ii)who has Seen convicted in Australia of an offence and is not in custody 1" respect of that offence,

on the persofi's enterins Into such

recognlzances as the Magistrate

thinks appropriate, grant bail to

L-

d e person penbng the slgnlng of a

warrant by the Attorney-General for

the surrender of the person,

but otherwise the Magistrate shali order that

the person be released.

( 6 A )

A person referred to in paragraph

(E)(b) is not entitled to adduce, and a

Xagistrate 1 s not entitled to receive, evldence to controvert an allegation t'nat the person has commltte2 an act or omission in respect of which the surrender of the person

1 s requested.

( 7 )

Idhere the Magistrate is of the

opinion that it would be dangerous

to the life

or prejudicial to the health

of the person to

commit him to prison,

he map, in lieu of

committing him to prison,

by warrant, order

that he be he12 ln custody at the place where

he is for the tune being, or at any other

place to which the Maoistrate considers that

he can Se removed wFthout danger to

his life

or prejudice to his health, until such time as

h e can wlthout such danger or prejudice be

committed to prison cr he is surrendered

and,

in such a case, Ehe warrant shall be in

accordance with the form prescribed for the

purposes of S&-sectlon

( 6 ) wlth such

variat1or.s as z r e necessary tc me?c	the
clrcumstances of the case.

IQhere, in pursuance of this section,

a Maglstrate commits a person to prison o r

otherwise orders that he be held in custody,

or grants bail to a person, he shall forthwith

se?d tc the Acccrney-General a certiflcate to

( 8 )

-1- - -cc

= - - P c ~

and such report, if any, relatlng to the proceedmgs as he khinlrs fit . . . ' I

Section 17A of the Acz provides for review, in his Court or ~n the Supreme Court of the State or Terrltory in which the p3rcon was apprehended, of any order by a magistrate for the release of that person. The new section which was

suSscltuted as

s . l E

late iast year provides for eview of

the validity of decisions of maglstrates, inter alia, to

conmlt a person to prison.

The section relevantly provides:

"18(1) Where a person (in t'nis section referred to as a "fugitive") is committed to

prison or otherwise ordered to be held in

custody, or is granted bail, by a Magistrate

pursuant to sectlon 17, the fugitive may,

within the period of 15 days after the date

the decision cf the Magistrate, apply to the State or Terrltory in which the Magistrate was sitting, for a review of the valldity of the decision of the Magistrate.

( 2 )

The fugitive is not entitled to

make an application under

subsection (1)

after ;he expiration of the period referred to

in thac s&-section.

( 3 ) Upon a review under s?&-section

(l!, tne Court shall have regard only to r;he

material that was before the Xagistrate and

shall --

(a) if satisfled that the declsion

:'ne Xapstrate was valle -- make an

order confirming the 2ecislon;

!b) If not so satisfled -- order that

the fuyitive be released.

An apseal lles to t'ne Ful l Court of the Federal Court fron ar! order made on an

( 4 )

appiica'lon

by che fugltive under sub-section

(1) if the appeal 1s institutee within

15 days

after the date of the decision of the Federal Court CL' th? Supreme Court in relattcn to the appilcation.

( 5 )

In an appeal under sub-section

( L ) , the Full Court, shall have regard only to

the material to xhich regard could be

had by

the Court that made the order from	which the
appeal was lnstltuted.

( 6 )

Except as provl6ed by sub-section

( d ) , an appeal does not lie fron an	order
referred to in that sub-section.

I ,

( 7 )

Maqistrate shall, when

committing a fugitlve to prise? or otherwise crdering that a fugitive be held in custody,

or when qranting bail

C O a fugitive, pursuant

to section 17, inform the fugitlve that the

fugitive will not

be surrenlered until after

the expirazion of the period referred to

sub-section (1; and that the fugitive may make

an application to a Court as provided by that

sub-section.

( 8 )

. . . "

I make two comments about this section.

First,

chere is no Provision in the section for any extension of

the perioc! of l5 days allowed for

the making of an

appilcatlon f o r review.

m e reason, no doubt, was that it

was Ehought desirable to enable

an early decision by the

Attorney-General upon the question

of surrender and, If the

declsion was co surrender, prompt surrender. Speed

desirzble; in the interests both of the fuqitive, who is Seinq held in some form of custody pending a decision and who y e t m a y not Le sLrrenderee cr m i y be acqLitt-6. of the

relevanr; charge or charges, and of the admlnlstration of ~ustice ln the requesting State. aut t h e absence of any

provlsior, for extenslo?.

crf the relatively short time allowed

for the nskinq of an sppiication for re-?lew throws a

particular responslbllity upcn zhose scting on behalf

of the

fugltive to ensure that any application for revlew

1 s nade

,in time.

No doubt this is one reason for the requirement of

s.18(7) that the magistrate inform the

fugitive of his

position. In this connectlon it does not appear from	the
transcript of the proceedings in this case that any

nct;ficatlon

untier s.lE(7) was given bp K r Miszaiskl.

Xotxithstandinq that apparent

mission, Ehose representlng

the applicant reallsea the Fosition and

-- despite the time

of year -- flled Applicacion G.6 of 1?86 xithin the required

15 days.

The second comment is that 5.18 contains no provision for the reviewing Court to suspend the operation

of the magistrate's

order, or to admlt the fugitive to

bail,

pendinq Ehe determmacion of the review.

In my oplnion this

is unforcunate. in many

cases, no doubt, ic will be

deslrahle to keep che fugitive in custody pending

review;

but this may not always be s o .

The present case is one

where, upon the informatlon presently avaliable to

me, ir;

may h a v e been appropriate to release the iugltlve from

cuscody pe3dir.g the determinatlon of h1s applicatlon for

review. As will appear, the macter.: in respect of whch the

fugitive was coaaltted

to pison to await eztradiLion are

rslatively minor. They took place a long time ago.

Tne

uncle of tne fugitive, an Australian citizen w50 0-wns h l s

o r ! home In Sy?ney, has sworn an iffidavit in wkich he

offers to provlde accommodation for the

app1icar.t. I was

inicrmed by counsel that the uncle was willing

to enter lnto

a surety for the

appearance of the applicant as required.

In the ever.t the matter of release of the applicant pending

the decerminatlon

of the case

was not pursued by

his

counsel. Counsel for the Attorney-General indicated that

12.

they would wish

an opportunity to present evidence on that

question and counsel for the applicant preferred to use the

time which I was able to make available to argue the merits

of the substantive Application. In the absence of any

evidence which might

have been adduced on behalf of the

Attorney-General I speak tentatively, but it seems to

likely that a person in the position of Mr Prevato awaiting

a trial in respect of like offences alleged to

have been

committed in Australia would

be granted bail. A magistrate

may grant bail to an apprehended fugitive pending

consideration by the magistrate of the case

in support of

extradition: see

s.i7(2).

It is difficult to see any valid

objection to Investing the superior courts

with a like

discretion in respect of the period during	which an
application for review is before them.

"he observations I have just made are direcced

primarily to the operation of 5.18 in the Supreme Courts of the various States and Territories. In this Court there is an alternative procedure available: an application for

renew pursuant to the Administrative Eecisions

(Jueicial

Review) Act.

The making of an order uncler s.17(5) of the

Extraditeon (Forelan States) Act 1966 is a decision to which

that Act applies. The recent case of Rilev and Eutler v

Commonwealth of Australia -- see (1583) 50 AL4 593, (Fox

J.), (1984) 57 ALR 249 (Full Federal Court) and the yet

unreported decision of the Yigh Court of Australla given on

1 .

18 Decerr.ber 1985 -- was ar? example of the use of the

Adm:niseratlve Decisions (Judicial Review) Act to obtain

prison pending posslble extradition to the United States.

review of a. magistrate's decision to commlt two fucitives to tl?e enactment of 5.18 of the Extradition (Foreian States)

Act.	- ?2-e tlme available for an applicatlon under the

Administrative Decisions (Judicial Fevlew) Act is 28 days

and t h l s period may be extended upon good cBuse being shown:

see s.ll(l)(c) of that Act.

Moreover, 5-15 of the

Administratlve 3ecisions (Judicial 2eview) Act gi-Jes to che

Court power to make

an interlm order suspending the

operation of the eecision the subject

of review pending the

leterminatlon of the review. 'This "over would appear

sufficlenc to enable the Court, in a proper case, -3 skspenl

the operation of a cormittal order upor? appropriace

conEltiozs as to bail; cf A1p3s lan v Kinlster for

Irniqratior. a!?d

Etk-?.n.'-c Affir1i-s (unreported, Gray J., l6 J u l y

1585). It 5s curlous that a more restrlctive reqime was

selected In respect

of Supreme Courts -- or this Court under

t h e ExtraCiticn iFsreicr? States) Act -- than 1 s av;allaSle

under cke Pdr,inistratlve Decisions (Judicial Peuiew) Act.

It seems unfortunate that the fugitive

is require2 to be

Informed only of those more restrictive rules.

14.

The charses

Mr Miszalski committed the applicant to prison

respect of five only of the charges referred to

in the

notification by the Attorney-General.

He held in respect of

the remainder that there was

no evidence sufficient to

justify putting the applicant

on his trial. Those five

charges were identified as charges 2,

3 , 44, 45 and 46 in

the warrant of the Deputy

State httorney for Padua. Counts

2 and 3 relate to a single incident which is alleged

to have

occurred on 29 Jarmary 1979 when the applicant -- then aged only 16 years and 8 months -- was a student at the Marconi Technical Institute in Padua. It is necessary to read those

charges in association with charge No.1, to which charqes 2

and 3 refer. Charges 1, 2 and 3 , as recorded in che English

language version tendered to Mr’Miszalski, are

as follow:

“1) ... in complicity with one another, the

first 9 as promoters and organlzers, In

execution of a program adopled by the

‘Ronde

Armate Proletarie‘ (proletarian armed patrols)

of which they were

members, which program was

intended to oppose ‘selection‘ in schools, and RUGGERO, PAESOTTO, GRIGGIO and PREVhTO having mat.srially committed the facts - set fire to

the reglsters and class works of the teachers

of the Technical Institute ‘Marconi‘ in order

to destroy them, thus putting the school

building in danger of fire.”

CThr applicant was not named as one

of the “promoters and

organizers”, being named last in the list of 11

names].

“ 7 ) ... in complicity with one another and in

the capacities mentioned bove (sic) -

destroyed the school registers (public deeds)

mentioned

above.

15.

3 ) ... Ln complicity wit5 m e another, in

thelr aforesaid capacltles and

I? order to

make an attem.st on public safety and to commit

the offences mentioned above

- possessed

Inflammable substances, and lr: particular a

c m containing three litres of petrol."

Charges 44, 45 and 26 each relate to an incident sald tc

have occurred at the Selvatico Technical Institute on 8

September 1980, -,he appilcant bein.; then aqed 18 years.

Those charges read. as follow:

"44) ... 13 compliclty wlth one another and for

purposes of terrorism and eversion of the

democratic order - decide6 to damage and

subsequently damaged

Kith metal bars an

electronic laboratory and an electronic computer in the Secretary's Office of the Technical Institute 'P. Selvatlco',

threatening persons

'and causing damage to

other iEems existing in sald Institute

(telephone sets, arm-chairs, a writing-desk, a

chair, typewriters, an arplifier, a mini

computer, a painting by Marzu accent and a

polyptych by Tono Zancanaro),

thus causing

sal6 Instltute 50 suffer heavy frnanclal

damage (not iess than ten

llllon llre).

naske.' 2nd in order to subvert the democratlc

4 5 ) . . . in complicity with one another, being

grder - decleed to threaten and acfGally

tkrreaEer.ed puSiic officlals (teachers and

??her mrr.bers of the 1nstitur;e 'P. Selvatico'

w b l e in the exercise

of their duties).

4 6 ) ... in complicity with one ancther and for

purposes of terror;sm and. everslon 3f the

democratic order - deprlvec! the teaching and

non-teaching staff of the Institute

'Selvatico' of their personal liberty, said

staff Seing public officials 1n the exercise

of tilelr duties.

Tne Zxtradition (r'oreiqr! States) Act is made tc

aFply in relation to the Republic of italy by the

Extradition (2epublic of Italy) Requlations; but the

. I

16.

application 1 s sujlect tc the terms of the Treaty of

Extradition Setween Australia and the Republlc

of Italy

sign&

on behalf of the Governments of the two countries

78 Nove,mber 1973, a text of which is annexed to the

regulations. The effect of making the application of the

Act sub~ect to the terms of the Treaty is to require, in any particular case, conpllance wlth the requirements of bath

the Act and the Treaty:

see 2ilev and 9utler ( 1 9 8 4 ) 57 ALR

249 at pp.252-253. Article I1 of the Treaty Ceals with

offences for which extradition may be granted.

Relevantly,

it provides

Extradition shall be granted for an act or omission constituting an offence coming

"1.

wlthln any of the following descrzptlons of

offences if the offence is, according to the

laws of both ContracLing Farties:

(a)

punishable by a punishment not less

severe than mprlsonment s r other

form of deteptlon for zwo year:;

and

!b) olie for which extradition can be

granted:

...

(viiil Kidnapplng; abductfon; false

lmprlsonment.

( xvi

) Arson.

(xvii) Malicious damage to property.

(xxiii)

Attempting ... to commit ... extradition may be granted

under

pr sent

the

Treaty.

- - _

17.

5 .

2. ExtraBitlon shall also Se granted for

any ozher act

or omisslon constituEmg an

offence If the offence is, according to the

laws of both Contracting Parties:

(a)

punishable by a punishment not less severe than lmprisonment or otier

form of detention for two

years;

and

(b)

cne for which extradition can be granted.

3.	Extradition shall also be Franted for

partlcipation in an offence to

which this

Artlcle applies if the participation is punishable by the laws of both Contracting Parties by a punishment not less severe than mprisonment or other form of detention for two years.

...

I have set out all of the

offences listed in sub-para.(b)

para.l arguably relevant to the present

case.

It is a fundamental requirement

of Art. I1 t k t , tz

be extraditable, an offence must be "punlshable" by a

punizhment not less severe than imprisonment for

two years.

I c :S a characterlstic of each of the five cffences in respect of which the -3plicant was committe? ts prlson that

t L e maximum punishment which mlghr: be imposed mder the

Italian Penal Code is

a term of imprisonment exceeding

two

years.

But, In relation to each offence, provision is made

far a minimum

term of less than two

years and -- at least on

I *

l e .

m e interpretation of brt.225 ~f the Code -- this minlmum

term is sub~ect

50 further reductlon in Lhe case of offences

committed by "respmsible minors", that is persons aged

between 14 and l8 years. Under those circumstances counsel

for the applicant argues tbat none

of the offences falls

within Art.11.

He says that since it is lawfully open to

the Italian court to lmpose ln a partlcular case a sentence

of less than two years imprisonment it cannot be said that

the offence is "punishable" by imprlsonment for more than

two years. The offence may lawfully be punished -- and ln

the particular case may In fact be punished

-- by a lesser

term of imprisonment. Counsel draws attention to the

circumstance that this

Treaty -- urdike the Treaty wlch

Sweden referred to In Fuharka v Webb C19837 2 NSKLR 31 at

p .36

-- does not s ~ e a k

of a rrasimum term cf imprlsonment

two years.

-	I do not accept the construction of Article Ii

urTec! on behalf of t'ne applicant. It appears to me

erroneous to approach the matter by reference

to the

ZvailaSIe mlnlmum sentence. T're requirement of the Article

1 s that "the offence is ... punishable by a punishment not

less severe than imprisonment .. . for two years". In other

words, the offence must, in law, be abie to be punished by

such a term. An offence is so able notwithstanding that it

may also be able to be punished by imprisonment for a lesser

term.

Such an interpretation not only accords

with the

- -

I * I

I ,

19.

natural mea!i:ng

of the words but

l c sensible in applicatlor..

F i e Surpose of the provlsion 1 s to prevent extradltlon for offences of a trivial natxre. A s Deane J. sald In Riler and

Butler " ... lt is a well-recognized standard. of the

international community ... that extradition -- wlth its

attendant deprivation of liberty and disruption

of lives --

should or.ly be requested or granted in cases where the

alleged offence is a serious one". Upon the construction of

the words advanced on behalf

o the apslicant no offence

would be extraditaSle if, either in Italy or Ausrralla,

were lawfully open

to a courr, not to impose a sentence of

imprisonment; for example by imposing a fine or requiring

the offer.de.- to enter into a good behavlour bond.

Tne vide

discrezlon given to Australian courts,

at least, to take

those courses would immeciately rule out extradltlon for

almost 311 sffences.

1 1 1 2 0 .

+ . .

m d e ?lie requlsi'icn

fcr s.Lrrender". In the case cf Italy,

extraditioc is only to be granted if

such proofs are

provided. Article

XI(1) of the Treasy, provides:

"1.	If a request for extradition relates

LO an accused person, extradition shall not be

granted unless evidence is furnished that the

offence for which his excradition is sought is

one for which extradition may be granted under

the present Treaty 2nd evidence

which would

Se, accordin? tc the law of the requested

Party, sufficient to ~ustify

his trlal if t'ne

act or ox1sslon conszizuting the offence had

taken place in its territory."

Counsel for the Attorney-General tendere?

magiszrate, M? Miszalski, three authenticated szatemenxs

referrlng to che participatlon of the applicant in the two

t3 the

events the sub~ecc

of the five charges. Those seacements

constituted the whole of the material before the magistrate

wh~ch

arquably imFLlcatec the applicant In the alleged

3ffences. Two of tb-ose statements were made Sy a person who third statement was made by a person separately charged in respect of the same offence. Each statement was obtained in the course of questioning by officials concerned with the

- -

was

h~rr.self

,C L ~ & i.:

the warrant i s a co-offender.

The

prosecution cf t?Le offencss, alch3ugn 2iey were gerei-ally in

nayrat:,?	form rather than in the form	of responses to
questions.

Counsel for the applicant contends that statements by accused persons are noL admissible against

a fugitive.

He em~haslses

the r'equirement of Art.XI(1) that the evidence

. I .

2 1 .

I .

furnis5ed lr. suppzrt of the request f o r extradition be

"according EO che law of the reqJested Tarty" -- that is, In

i3.i~ case, the law of the reievant part

of Australia --

"ZuffTcient to justify

his trial" if the acC or omission

constituting Che offence had taken place

In that part, that

is NEW South Wales.

It follows, he says, that only evfdence

~hich

would Se acimiscible in a trIal of the appl2car.z in Kew

South Wales is admissible 12 extradltlon proceedings aqainst

him: a record of intervlew not being so admlssible these

statements may not be received as evldence against his

client.

I accept the first step in this argument. The nazter was dealt with in the Judgment of the Full Court in

.v.llev and Eutler (1984) 57 ALE at p.271:

"The apslication of Art VI resolves or?e other

~ S S U ~

debated kefore us:

whether the evldence

u p m wainlch thi+ naqistrate may act 1 s cJrf;ned

. -

to ev:d.e?ce

3:imlcsible ir. CrlTiiAa- proceeC;ngs

12 -%us~ral~a.

Tiis questlon rr,ust 3 e answer&

afiirrnacively, bc;t sub~ect

CO the

understandlng that

t h e test is one of

sukstance. not of form."

Fowerer, lt Is In my oplnio?. errcneous L@ equate

?he sr;at=ments tendered in tke present proceedings

to a

recorl of interview of one accused. C,end?red

at a'trial

against Inother accused. Such a document is inadmissible at

a trial not because the author

of the statements made

therein is himself or herself

an accused person or because

the staEements were elicited through the questioning

of the

I - -

,I,

2 2 .

L *

z u r k o r by polics officers, bGt simply bscause it is

defective in form. A document contalnlng assertions as CO

the acts or omisslonc of another person is qenerally

inadmissible agamst that ?erson at his o r her trlal.

Subject to some

exceptions, which are not presently

relevant, that principle a?plies to any extracurlal

statement, whoever be the author and whatever be the

circumstances OZ ~ t s

making.

30th the Extradition (Foreim States) Act and the

Treaty with

Itaiy envlsage that evidence in ertradltion

proceedings shall be provided

by authentlcated statements

macle outside cowt:

see s . 2 6 of the Act and Art.X(2) of the

Treaty. Art.XiV(1) of the Treaty requires "the authorities

of the requested.

Tarty" to "admit as evidence, in any

proceedings f w extradition, a sworn depos-t-on o r

- -

ar:lrmation taker. in the zerritorp of ~ h e

requestlnc Tarty

. . if it is duly authencicated". Tke obvious reason for this procedure is the impracticallty of havlng witnesses

attend court in the requested State to give oral

evidefice on

oath.

So It is not to t h e point that the statements

L~.dered

- n

againsr: the

applicanr were made

oldt cf court. tI

interpolate that It does not appear that he statements have

been sworn or affirmed, as envisaged by Art.XV(1). Yowever,

Art.X(2) may permit the courts of the requested State to act upon unsworx, though authenticated, statements. As no point

was taken that the statements were

unsworn, and the matter

has not beer! arTLed, I ex2ress no oplnion a s to whether this

would have Seen a good ground for their rejection by the

magistrate.7 T:;e

question, in relation to admissibility,

musc be whether, if the authors of the statements were

called at a tri2.i to give oral evidence

to the sane effect

as their writter. statements, that evidence would be

adrussiSle, under the law of Kew Sourh trlales, against the

applicant.

A s s ~ m ~ n g

for the moment the relevance and

probative value of the contents of the statements, this

questlon must be answered In the affirmacive. Under our law

SWOY:! evidence Fiven at a trial by an accused person -- even

a ,erson

who is iimcelf i defendant in chat trial

touching the ccnduct

of another accused. person 1 s evidence

egains:

that person. And, of course, it makes no difference

that the incrir;nating evidence is given in response to questions put a: che trlal by a ?erson concerned wit5 the prosecution of ?:?e offences, such as in cross-evanlnarion by

ck?e Crown FroserlJtor. %is

gelleral ob;ection to the

admissiSility c5 the statements must be rejected.

Colcr!;

7 :

urlma facie case

I have +Ireaay referred

to the test

posed by Art.XI

regarding the e-:;dence

required to Se adduced before any

order for commirtal may be made, that is t5at it be

"sufficient to ;ustlfy his trial";

sufficiency be?ng

deterxi!;ec! by lrcal standards. There 1 s a 2uestion -- to

1 2 6 .

which I vill rffurn -- ?.S

to what is

r!eant S y thst tect but,

upon any view, It must mclucle the reqmrement that the

evidence adduced to the magistrate be sufficient to indicate

a prima facle case of the guilt of the fugitive In respect

of the offences in relatlon to

which his extradition is

sought. 9y "prima facie case of guilr;" I mean evidence which, if it stood alone at a trial, could be accepted by

reasonable jury, properly

ciirecte?, as a basis for a fmding

of ~uilt. In order to constitute a prima facie case there

must, of course, Se evidence capable of acceptance against

r;he fugitive in res2ect

of each element in the relevant

offence.

It is convenient CO firsc consider the submlsslon

put by counsel for the applicant

-- in relation to each

charge -- that no prima facie case has been made our; agalnst

hls client.

C~unc

3 ?.rises o u t of the sl leged incident st the

Marconi Institute.

That incident 1 s referred r o I"

the

statements of Diego Ruggero and Maluro Paesotto. in a

statement made at

1625 hours on 14 March 1982 at the Police

Xeadquarters, Pacluj. ancl in the presence of the duty defence

lzwyer of the day, Mr 3uggero deait wlth a Rumber of

izcidmts in which he was ir.vclved; incidents spread over

some years.

The statement included this passage:

"After the abovementioned convalescence,

towares the end of 1978 when I was enrolled at

the ITIS Marconi College in the last year of a

course for Heating technicians, I decided to

join an Inter-College Commlttee which already

existed.

This Commlttee could be described as

25.

a people's p , d l l c scrluccure for all studencs

from ladua, set L? to promote debates,

scrlkes, dem-nstrations and other actlvlties

m the struqqle against the education

a,dthorities,

...

Daring rhe ytar when I joined the

inter-College Committee, in December

1978, the

following were also members: Mauro

PSESOTTO,

Mario MUhTAP.1, Gienpaolo BOXTOLFITO, someone

called Giam.: nicknamed "Trudi" ane also a

person

ca1le;i- "Isa"

, Raul FREATCCSCYI, Zdoardo

RZ:?ETTO (whc left anyway a couple

of months

later) and ssmebody called Lorezzo	whom I saw
very little cf at the meetings and	I found out

later that

k i p had gone off to India shortly

after I joified. Mauro PAESSOTTO (sic) was at that time hezd of the Committee or Lather in

charge of it an2 the armed bands.

Within the activities of this Committee, it was declded 12 Zanuary 1979 to carry out an action against the school 'selection' system

which we thodght was especially severe ln my

college. I remember that this was the sub~ect of a number 5f discussions and

at a meeting

held in the

Ztudent's Room in the Faculcy

Fhysics in \-:a Marzollo, we declded to take actlon. We :>lamed to mtroduce a group of us

into the Ist:tuL,c Yarconi during the evening

cf an holld;:-.

'=1:~y were to get the teachers'

reqisters ar: recures and burn them. irnder rhe Ieldersh-p cf Faesotto, ALL those

named above -_ttended this meeting

and

altogether it was declded that

I was to be

entrusted wi-h this action, that I was to

choose someme from the same College

to 2 9 % ~

me and thsth (sic! aFother two people

- who

were not p r ~ : e n t and I don't knox thelr names

- were to "rsvlde

backup from rhe outside

warclng ::? ~-ith

a walkie-talkie radlo

if che

Police c r witchmen showed up.

I chose my f:iend

Libero William PREVATO to

come wlr;h m? and asked hlm to get us a

walkle-talkle radio. Once we had it I kept

one half ant gave the other to Paesotto t h e

day before the planned action and agreed on

tne timing of the sald. actlon with him.

I. I,

2 6 .

It was a 3mciz.y eveninq. Frevatc enl I clmbed over one of the outside gates at the back of the school and. enteree the school

through a window after brezking the glass

wich

a stone. After encering ~ h e

building we went

to the tezchers' room

- we knew exactly where

It was locates - and got the school reglsters out of the teachers' cupSoards. Ne had to

force some of the locks of the latter.

Diled all the registers up in one

of tine

nearby corridors and. poured about three litres

of petrol over them. I had bought the petrol

earlier an5 broug3-t lt along 12 a tank. Me

set fire to the reglsters and the ~erry-can

well an2 ther. left by the same wcy we had

entered wlthout meetinc anyone. Everybody

went cheir respective ways

home."

Mauro ?aesotto, the the leader of the group, provided a series of statements

persor: named by Mr Rugqero as

referring to many incidents. Ir! a sta:ement

made on 16

March 1962 he mentioned the Narconi Institute

incldent, jut

without speclfyzng the date upon whlch it occurred. :le referred, without further identiflcation, t3 "Prevato"; szglnq that "Frevato" did n o t cake part In t5e organlsatlon

of the atzack because ac that tire he d;d not belonc zo the

E o d e Armate Proletarle.	3 2 s description of the Incldent
reads as follows:

"As to the esecldtion of the atzack in whch I

confirm I toov. ?art, I rer;.ember

lt was

executed on a Sunclcy evenlng ant the operative

group consisted of RTJGGaG, PRFJATG,	Liuretta
GRIGGIG and. I.

RUGGERO and PREVATG entered x t o the College

which they knew because they were students of

It. Lauretta and I waited outside; we pretended to be a couple in love; we had a halkle-Talkie FRFJATO had got before, so we tried to keep track of him and RUGGERO, since

'. I I

2 7 .

. . .

they ilso ha6 the- same instrument. 5.xt the

comection wasn't possl5le because the

instruments Sidn't work. In splte of this,

the action was skccessful."

I aqree with counsel for the appiicant that Mr Paesotto's statement furnishes no evidence that the

applicant committed either

of the offences alleged agalnzt

him in resgect of the Marconi Institute: destruction of the

school registers and possession

of petrol with intent to

destroy the records.

It 1 s not made clear that Mr Paesotto

observed Mr Ruggero and the applicant to enter the College,

but even assummq that the statement should Se so construed,

it says no more than that. Ths statement makes no reference to petrol, to a jerry-can or to any other equipment taken on

+ ,he mission, other than a walkie-talkie.

No information is

provided as to what was done In the college by Mr 3uggero

and the applicant.

Mr Paesotto does -.ay thst "the actlcn"

was sGccessFul but

he dces ?.~t

d z s c r ~ b e

tLe nat-uie of "the

action", stlll less does he xdlcate rhat he himelf

observed It being successfully completed.

Cc~xsel

for the Attorney-Generzl drew

at:entior, to

a ?assage in the Full Court ju5gmenr: in F.ilzv ani Sctler ar:

(19843 57 AL.2 272 in which reference was made to authorities

upholding the admissibility

of evidence in extradition

prgceedings in which a conclusion is expressed; the

evidence not specifically indicarlng that the concluslon was	'
cierived from t:?e personal observations of the witness. aut

., .:

2 8 .

_ ) _ _ i .--

L ~ I C x - z i 5 UpwI L

iCh

SLrk cv;firncr w%c hdmitted in those

czses was that it appeared f r m the evidence that the

witness was in fact in a position to speak from his personal

knowledge; though he omitted to say that he was actILally so

doing. That approach can have

no application to a case,

such as the present, in which the evidence shows that the

witness was not

in fact in a posltlon to observe

the

relevant acts. Tke statement indicates that Mr Paesotto

remained on watch outside the College

with Lauretta Grigglo.

It follows that, in stating hls conclusion that "che action was successful", Mr Faecotto must have beer? reljrlng on what he was toll by someone else.

In a subsequent statement, made

on 7 Aprll 1582, Kr

Psesotto repeated r:hat "Prevato" had no part in ~lanning the attack on the Marconi Institute. 3e said hat "Precato" did r.ot ]z:n the 2onde luntll shortly before 3 Oecember l979. Ee corifirmtd what he had previously stated regarding the

esecutlon of the attack but

he took the account

PO further.

Counsel for the ap?!.:cant

concede- that the

stztement cf Mr 7u~gero

-- if, contrary to hls submission,

a&niSSiSle againsc his clienr: -- establishes r:he physlcal acts necessary to make out a prima facie case against his

client ir. respect of cocnt 2 .

h'owever, he urges two reasons

why it should be

held that no prima facie case has been

established: that the evidence does not establish the

recrssary crinnal intenc and that, by reison of so2nrthinq

enerqing from a later scacenent of Mr Rugqero, the

magistrate should have refused

to act in rellance upon

material in the statement

of l4 Elarch 1982.

In relation to the

course1 refers to R v Phillios and Prlncle Cl9?33 1 NSWr-R

175, wherein the Yew South Xales Court of Criminal AFpeal

set aside the convictions of the appellants f o r malicious

first matter, criminal Intent,

lnjurg to FroFerty arismq out of their action in sawing

down t5e goal posts

of the Sydney Cricket Grouzd urnq the

1571 tour of the Ssuth Afrlcan Ru5Sy team. Kerr C.J. and

Jacobs F. held that the trial judge should have left to the

>dry, l n connection with the issue of malice, the question

wherher the accused had

an.

“labful cause or excuse”.

Jacobz P. Es:;lained. at ~ . 2 8 $

that this phrase does not

Itlean

a :??:a1

right.

Rather, C S the exzmples qlven by bsth their

Honours make plain, :t	means a? explanation inconsistent
with a guilty minc?.

It seem to fie that Phillios an2 Princrle is dlstxngulshakle frorr. the presenc case. in Phillioc and

Princle the sccused kad relied at

their trial ~ p o n

vzr1ous

United h’ations‘ resolutlons upon racial discrimination.

The

quescion on the appeai wzs whether, this matter hzving been raised, the prosecution had established beyond reasonable doubt the absence of malice, that is the absence of lawful

,‘,

3 0 .

L .

c%se or excIuCr. EL?

r a s e says nothing about the usuai

situation where 20 clalm of lawful excuse is made and in

reiatlon to wkich

-- although the prcsecution always retains

the onus of proof -- mallce may be inferred

from the mere

fact of deliberate damage to property:

unless, cf cgurse,

something appears to suggest thac the usual inference is

Inappropriate. There w;s

material to raise an lssut ~ p o n

that questlon ir. Fhillios and Prinule;

there is none in the

present case. Mr ?uggero and the applicant may well

have

thought themselves

t o >e morally ~ustifieci, in pursuit

th~lr

cause, in destroying the registers; but there is nc

suggestion of objeccrve facts which would amount	to lawful
cadse or excuse o r of any belief by them of their

entitlement to take such action. m e clandestine nature of

?he operatlor! 15 a clear Indication to

-,he contrary.

I turr. t-c 5ke seccnZ su5mlsslon, bass? upon the

later st-tement. 2n

29 March i982, two weeks after h;s

statement to the prosecutlon authorities,

Mr Ruggero

3peared Sefore ar, Investigating judge. Xe made a statement

- 2

his sarller statement. Ir. rela’;ix ts some m.tters he confIrme(? what h e had. prevlously sLated;

In relation to

_ _ _JLng

other matters he denied o r corrected what had been said. He

said nothlng, one way or the other, about the Marconi

Instltute incident involving the applicant. €!ut

explanation of his mlstak about a name mentioned in

connection with another matter he said: “at the tlme of my

The 5tatemer.t of 29 Karch 19E2 was part of the

extradltion material sent by

the Gcvernment of Italy to

Australia in connectior. wlth Its request for extraaltlon. Howsver, it was not tendered to the magistrate Sy counsel for the Attorney-General. When the statenent was tendered

to the mgistrate by counsel for Mr Prevato, counsel for the

Attorney-General objected

LO its admission upon the basls

that s.17(6.9) of the Extradition (Foreiun States) Act

forbids the reception of evldence from the fugitive

"to

controvert ap. alleqatlon t5at the person hss comntted an

act or mission In respect cf whlch the surrender cf the

persg> is requested". 3 1 s ?revision, ic is said, precludes

t F e receptlcn %y z ~egistrate

from the fclpitlve of 5r.y

e ~ l 6 e n c e

i.?h:~h miqht tend aqainst the case s ? t 122 >y The

Attorcey-General.

SuSsection i 6 A : appears to have Seer. lnserted Into

LIP

1eqlslat:on

in order to make

It clear t k a c the task of

*he magistrate, in relatlon to the questlon whether the

evidence is sufficient to justify a trial, is merely to

evaluate the case against the fugitive. The maqistrate is

not CO conduct a preliminary trial of the fugitive in

whlch

Ke hears evidence In denial

of the allegations from the

3 2 .

fd;itiVE- G?' fro!:: vitnesses celled on his or her behalf. It

would be dlfilcult, If not Impossible, satisfactorily to

resclTle S contest in relation

to guilt by weighmg evldence

in the form

of statements nade by

sbsent witnesses against

sworn evlCence on behalf

of the fugitive aSout which there

may be no opportunity even to obtain instructions.

Tne inttrpretatlon I have suggested is conslstent

with an

explanatlon given by the Attorney-General in

his

Second Reading speech

upon the Extradition (Commonwealth

Countries\ Amendment ail1 1985, which Bill was debated at

the sane time

as the Extradition (Foreign States! hnenirnent

Sill l9R5 and which

was desianed, inter alia, to insert into

the Extraditlon (Commonwealth Countries) Art 1966 2

subsecticn in like terms to

s.i7(EA) of the ZstraCltFon

(Torelm States! Act.	M r Bowen szid of the relevant
sub-clause:

"Yvltence chat may Se led Sv a fuqitlve: Ar!

extradltlon hearinc; is not lntended to

determine the guilt or innocence of the

iugitlve but whether a case exists which would

justify the fugitive's trial

in the requesting

country. Magistrates have in the past

serrltted fuTitives to lead evidence to

c'nallenge the merits of the prim facle case

scught 20 be established by the requestin5

country. This amendment will mske it clear that such evidence may not be led. Tie

fuqitlve ;r.ay of course argue

that a prima

facie case is not established."

See House of Representatives Weekly Kansard, 2 0 March 1985, p. 596.

3 3 .

I- is noz inconslstent w l ~ h

=he interpretation I

have suggested. 2x6 the intention referred to by

the

Attorney-General that the

macristrate should be entitled to

receive macerial which emanazes from, or is adopted by, che

prosecution wltness who is the maker of the relevant

allegation and which quallfies, explains or casts doubt upon

that allegation. The prolibition ir. s.17(6,9) is upon the

reception cf "evidence to conr;roirert an allegation". To

"contrcvert" is to dispute. Tne nntion is one of contest

becweer! an allecation made

by one person and evidence

emlnating frcm another. T h e r z may, of codrse, be some

ir?ternal inconsistency in the evldence of the accuser -- :he

whole of wkich constitutes the "allegation" -- Sut this

xrereiy means that the

whole of the evldence must be

conslrlered I n order to detsrmlne

what, In the end, is

allerje.3. by that person agaxst the fuTitive.

Counssl f o r

t h ~

At:crney-Ge?eral ;~cce>t

:?-a:

thelr argurnent l .?voivez the

proposition that, In a case In which a witness hacl cn page

one of his statement named

A as the perpetrator of a

criminal act and

on page cwo had corrected thls

identlflcaticn stating that

he was nistaker? and that

the

perpetrator was in

fact 3 , the Attorney-general woclLd be

.-ntit:e.?,

in extradltion proceedinFs aga9nst

A. t o tender

page one alone and

to have page twa re~ected

under 5.17(6A).

Fortunately, as it seems to me, this is noc t'ne law. The

question for the magistrate is the nature

of the allegation

made by the witness, that is Ehe allegation current

for

* .

. I .I

- -

consiterztion at t h e -,+ne of the proceedings f o r ccmmttal

to prlson.

If the witness has nade or-ly one scatement, Yie

magistrate is er.titled to have the whole

cf the relevant

statement so that he or she may understand the

contexr; and

be satisfied that incriminating material in one part is not

cut down elsewhere. The same position must apply

if the

wSr;necs happens to have Bealt with the matter in two

separate statements.

The second statemenr: would not be

tendered in controvertion

of the witness' ailegation bct in

proof of whar; the allegation now is. Accordlngly, I am of

the view that the statement

of 29 March was atmissible

before the maglstrate in relation	to his evaluatlor? of the
earlier statment.

m e arcrument put on Sehslf of t5e appllcant 1 s that

the later statement showed thar: the earller statemeRC

was

cStainel ,unrler such cLrcuK.stances thiat a!,

h u s t r a l l s ? caurt

would, l.? the exercise of ~ t s

discretlon, exclude ~t frcm

evidence. 2eference was made to the well-known line

cases relating to

the tender of evidence of admissions made

5y 5ccaseC perscns w'ners it is s k o m that those aSrr.lss:ons

have been obtained 2 s a result of I ~ p r o p e r

or unlawful

questloning: see 4 v Ireland. (197C) 126 C L 2 321, 3ur.r.lnq v Cross (1978) 141 CLF! 54, Cleland v The been ( 1 9 8 2 ) 151 CLF.

3 5 .

Tkere are difficulties about trinspcsinq the

rlaies

goverr?inq the receptlon

of evcdence of extracurial

adnlssions made by an accused person

-- which rules are

based upon the

need. for-fairness to such a person -- to

Extracurial statements, relevantly admissible in curial proceedings, tendered against others. Fairness to the maker

of the statement is not, in such a case, a relevanr:

consideration. %e real question is the reliability

of the

statement. If zt appears, perhaps from the silbsequent statement, that the earlier statement was made under

such

circumstances as to

be unrellaSle, i= will be appropriate

omit it from consideration. Indeed, if thls is known In

advance, it may be preferzble to reject its tender

as Sein-j

a document having no probative value. But the process is one 35 evaluatlon of -che e a r l i e r document in the liqlt of

the later document.

111 the present cas? the magiszrate was

er,ritled tc

t a k e the view, as he apparently did, that the contents

tle later statement did not require

him to discard the

allegations mste by Kr E u g e r o ac?.inst Fr Trevato zr! the

ear11er statement.

3espite the claix of 12ck of s l e e ~ ,

2ugZero did ngt suFgest that everytling

he had prevlousiy

stated was Incorrect

o r that he hac! not appreciated wh3t he

was saying. He corrected certain particular itens perhaps signlficantiy, not this allegation. The earlier

but,

stateaezt was not made unCer circumstances

which indicated

- -.

F:: f a c i e unrrlisbility.

rJn t h e contrary -he incerv:ew

was

in t h early afternocn in the presence

of a laijyer attending

to protect the interests of Mr Ruggero.

Admittedly, the

lawyer may not have kno-m. much &out

the case but

he would

presumably have intervened if it had appeareci to him hat Xr -3ucgero was in such a conciiticn as to not appreciate whac he was say1ng.

I re;ect each of the arguments put by the in answer to the contentior? that the

a~plicant

statement escablishes a

prim.

facie case in respect of count 2 and hold that there

1 s s ~ c h

a case.

Cowt 3:

p r i m facie case

The charge referred to'm count 3 of the warrant,

+=sesslng

r - -

m izflammaSle slLbstance, Fs not an offence listet i.? Art. II(l;(b) sf the Treaty.

Y O W P V ~ ~ ,

t 1 s salt

on behalf of the Attorney-General that the alleged offence

1 5 made extraditable by para.3 of Art.Ii, the offence being

zLnish351? by a term cf inprlsonment of not less than t w o

years in b o t h Italy and Ne3 Scuth Wales.

Tnis appears to be

ccrrect: see

Art.435 of the Italian Penal Code 2nd 5 . 2 4 9 Of

the Crimes Act 1500 (NSW).

3 7 .

Tk:e evidence relating to ccunt quote4, in the context of discussion of ccunt 2.

3 has alreafiy Seen

That

evidence indicates tha t it was Xr Ruggero, noc %e physlcai coztrol of the petrol o r that he was aware of r;he contents of the jtrry-can 5eing carried Sy Kr hggero. But ~t 1 s said on behzlf of the Attorney-Genera; that th:s does

applicant, who Srought the petrol to the Marconl Institute.

not matter, that the possession

of tine ~erry-can

by Mr

Ruggerc wes ?ossession pursuant o the common Fmpose between him an6 the applicant so that such 2cssessim cccstituted possession by the applicant. Coumel referred

to Trzaodi v The Oueen (1951) 104 CLR 1.

One dlfficulty about this submission

is thzt there

1 s no svidecce as to any preconcert between

Nr "uggero and

I.'..- Trevatc '10 sec allqkt the rsqlsters c'r to take +n

infiiamable slubstance inco the Institute. Mr Rugqero's

statement makes it clear chat the applicant dld not attend

the meeting at which the attack was planned; he was not

thee a xember of the group. The applicant was brouzht m t o

the matcer becalus~ he was a friend of Mr Ruggero and be wis

askel to get a walkie-talkie

radio, which Mr Rluqqerc gave to

Xr 3aesotr;o on the

day before the planned action. The

scatemezt is silent as to what, if anything, M r Prevato was

told about the planned activity. Surmise is an insufficient

basis for 1 findin? of ccmmon YJrpose. ?.E

merraers of t h e

Hlgh Court who decided TriDodi emshasised -- at p.7 -- the

nee5 to prove preconcert:

"When the case for the prosecution is that in

the commisslon of the crime a nuF3er

of nen

acted in preconcert, reasonable evidence

the preconcert must

be adduced before evidence

of acts or wores

of one of the parties in

furtherance sf the common purpose

vnich

constztutes or form an element cf the crime

beccnes admissible aqamst the other or

others, that is to say of course, unless some

other ground. for admitting tle evidence exists

in the givsr.

case. ...

It musz be remenbered that the basal reason

for admitting the'evidence

of the acts or

words of one against the other

is that the

ccmbination or precomert to comK.:L

the crime

1 s consiclered. z s implying an authcrlty to each

to act or speak in furtherance

of the common

purpose on behalf of the others."

3 fsrther difficdty zSout count ? arlses out of

ths inclusion in the charge of the al1ega::on

that the

I, .

%.cC'2S..d

p c ~ ~ s e s s e d

t h e petrol

l n crder to ;ake an a~ternpt m

-2Yihlic safety". This is not mere surplusr+-e. Article 435

af the Italian Penal Code, up3n vhich the zhzrqe

is based,

provides as follows

"435 .

Khoever, f o r the pur;r:mse of

attacl.r igalxst

puS:<c

sdet:; ,

~ , m -

. fz.ctures,

acquires @r pcssesses c?ynar.lte or other

explosive, ssphyxiating, bllndlnz, toxic or

infiacmable rztsrials,

...

shall ?e punished

by imprisonment for

from one to f:ve years".

Bltsough the term is not defined, "public safety" appears to

Se used in the sense

of dznqer to members

,sf the public;

that is to life and limb. There is no evitence of any such

danger in relation to the destruction

of the registers. The

- -_

r ,

39.

incFdent toor: place on B Sun52y eveEin9. So far as the

evldence indicates, the

buildincr was deserted. Counsel far

-,he Attorney-Generai submits that the

mere llghting of a

fire, doused with petrol, would create

a rlsk of a

conflagration of the building; which conflagration might

attract fire fighters who mi9ht thereby be injured. Perhaps

so; although it woult %e mpossible to assess the extent of that risk wichout more information about the corridor in

which the fire was lit. But even if the possibillty of

injury tc, flre flghters be conceded, this poksibiiity

is not

enough. Article

435 requires that the offender have the

ir.fiaIrma%le materials in his o r her possession "for the

purpose of an attack against puSlic safety". Count 3,

recognizing the necessity for intent, alleges that

c'ne

petrol wes possessed "in order to make ar: attea?: m public safety". PDssession with intent to use Ln such a maEner as

m.y ;ncldentally create a danger of Injury to mer;l-er's

of the

FUbilC 1 s nr~t

enough.

The evidence does not disclose

a Srima facie case

in relatloE te c o l a t 3 .

Comts 4 4 . 05 and 46 :

srima fx;e case

Counts 4 4 , 45 and 46 each relate to the lncident said to have occurred at the Selvatlco Insticute

on 8

September 1980, by which date the applicant is said to have

,' .

. I

40.

1 -

5ecom5 a memSer 3f the Bond5 Armate Proletarie. FE three

comts may Se consic',ered togezher.

In a statement furnished to the Deputy State

Attorney on 1 March 1982, Walter Buzzi, a person who was charged by a separate warrant, admitted to having "taken

part ~n ch..p e?isode that occdrred. in the 'P. Selvztico'

Ir!stltute on 2 SepternSer 1980". He named as "p+rticipants"

l1 persons including "Prevato", without fuller

identification. Later he sait that "twenty or so others

called in frJr the occasion" alsa took part in the raid on

the Institute. Mr Buzzi attended a meetmg which took place

2 few days Sefore 8 Septem3er	I at which "Prevato" wzs
present. HP went on:

"T5-e meeting took place at about 5 ?.m. an6 t3e

action was discLssed and declded srlectlvely.

hcccrdlng to our Intention, it was to be B

lemonstrati-Je act1cn Yithin the context 3f che

5 ? ' ~ 1 c e d to gather at 1i a.m. on the 9th

stxccle - _ aqainst selection ~n the scho~ls. i?Te

Se,?zrrr.ljtr outsize t h e 'Selvatlco' and then to

go Inside in separate groups: one was to take

the teachers in their respective classrocms

and concentrate them ir! the hall;

another one

was to nake the demonstrative 'writings';

another one was to

g3 to the premises where

:'?e	video terminal was irlstalled, wanting t3

s = c p this from working, but

I do not h o c ; :he

precise reason for that.

It was also decldec;

that each parclclpant should take some garment

for p ~ g o s e s

of disc;uise, and

a wooden stlck.

Lastly, we agreed to concentrate in two

d1ffere.n.t

places: one group of about twenr;y

youngsters was to

be in the public gardens by

the 'Siamic' coach station; another

groap,

perhaps a bigger one, was to gather Ln front

of, or rather close to the Institute.

- . I

a l .

Tr-e morning of the Eth Septernber, ar: the

arranged tune, I joined the second qroc2,

wkich was shcrtly afterwards joined

by th?

other one. ne all went in togetiner: one

group headed for the classrooms, another one

went along the corridors

to wrlte up the

words, and another one headed for the room

where the video terninal was. We were all

disguised with handkerchiefs and scarves and

were holting sticks. I personally was

displsed with a red handkerchief.

Iunong those takxg part :n the action I recognized all those I have named, because, shortly before entering the Institute, I had seen then with cheir faces not covered over.

Ne tisoulsed ourselves only

the moment we

crossec the entrance to the Institute. On the basis of the task assigned to me, I joined the group !consist%ng of 10/1? youngsters)

supposee to carry out the action Ln the

classrooms, to take the teachers out of them.

We went to

more or less all the classes and

there was no violence.

The teachers were

xvited to line up in the corridors and in the

hall.

Dluring these operations, one of us, I

Selleve lc gas Paesotto, used a whistle to coortkite the actlons of the groups.

During the phases I have CEscrFbed, some of us

scayed S? the entrance to prevent

myone from

c o ~ n g	17. or going out.
m

IX 3cr:ior. lasted in all stx Dr sever. rrindtes. of us qolng

h9:ez

we left ihe Institute, we split up, ezch

his own way.

‘I

.	A t a subseqluent interview, made on 6 April 1982 In

p r i s o r . Lefore t h e invrsS:gatmg

Tudge, Y r Euzzi recsnted %e

allegations made %R che staternent cf 1 Mhrch 1982, and in

one later scatenent; claiming that he had bsen suS~ecte6

psychological pressure and

had been s1appe.l and punched by

police officer E O that he preferred to admit all the

charcres

and to name “the youngsters I knew because I used to meet

them in Piazzl

dei Sigzori or at the movement meetings.

4 2 .

. +

They ;?ere the IiEmeJ os per5zns ci?piccIed i!:

t5e phc, toguag ls I

w2.s ckr.own ;n

t h e police station". Despite certcin commer.ts

by the Investigating judge Mr

Buzzi maintained this

pos~tlon, asserting that "hiat I sal6 to the Public Prosecutor in my previous two examm+tlons 1 s not true.

am Extr=neous to the

facts with which I have jeep charge<,

and I know nothing abolut sal6 facts".

Whatever may be

the truth about the circumstances

in which the first statenent was made, t h e fact of the

recantation makes M r Buzzi's evidence a dubious b a s i s f o r

the making cf any findmg abour; the applicant's

participation in th2 rai6 at tke Selvatico Instltute. And

it is the o-ly evidence offered as to the events

3f that

&y.	1.k 3aesotto refers in one of his st2tements to a

meetinr;, attended both by himself 2nd

"Frevato", at

%h:ch

:?IS rcl? vac- piamed but '?.e i s s e r t e -- In contratictisn of I+ 9XZZi who hac hlm (Caesott~)

Slowing a whistle -- that 011

?:?e day itself he "had some mishaps at home" and could not

90 to the Selvatico Institute. But even if weight is 31ven

to Yr 3 ~ z - i ' ~

firct sl;stement, It establishes no mcre

against LIE applicant then that

he participated in the

plan!:iny of t h e rsid a!?& tkat he WIS one of those who

asser?.bled outside the Institute immediately before the raid.

Kothlng is said as to the applicant's subseqJent actions.

He may have joined one of the three groups

-- according to

Mk ?aesotto it was planned that

he would be in the second

qroup which uould cake =he teachers fron their classrooms and sssemble them In the hall -- but wkrether *e did s o is

not shorn. it?.ether

he participated In any of the actions

referred. to in co,mts 44, 45 or 46 doe5 not appear.

Theye is no 9rima facie cace aqainst the a2plicant

~ r ,

respec-c of m y cf comts 44, 45 or 4 6 .

Evidence sufficien-c to justlfy trial

My findlng that there

1s no prima facle case Ir.

respect of each of cour,ts 3 , 44, 45 azd 46 means that there

was not evidence adduced to the magistrate sufflcient to

justify the trial of the applicant upon any of those counts.

'ut

I have held that there

is a prima facie case in respect

of comt 2 an6 this makes 1

necessary to cozsider whether,

as counsel for the applicant subnizs, the evl&ence wodlS

nevertheless Se lnsufflcient to ~ustlfy

kis trlal I f the

relevent acts had taken plice in

New Sobtl? Wales.

rou-se1 50:-

the aFpl:cazt

p u t s two sl-bmissions In

relation t3 this Issue.

He says that, in consxiering the

sufficiency of the evidezce, the maaistrlte was required to

have reghrd not only to the probative value

of the evidence

upon the issue of guilt or innocence

but also to the

surroundir,g clrcumstances which that evidence disclosed and

which related to the question whether it would be

a Froper

I '

c ,

44.

I *

':o~!t-se

:l?

r ~ z u i ~ r e

t h e applicanz !-IOW tG stand his trial

Italy. Counsel polntc out :het

the :-eievant alleges offence

i5 said to have ~ccurrrd

seven years ago, when the applicant

w a s aqed only 16 yeirs and R months, that zhe applicanr: w a s

not then a menber

of rhe group but 5ecame lnvolved only

becaLse of his friendship with Xr Ruggero -- who was six

years hTs sexor -- that, so far as appears, the darage

resulting from the offence was merely the deetruction

some records of the Institute and that the applicant has

already spent four months in prison in Australia in relation

to the excra2ition proceedings. It is mconceivable,

comsel sugge-sts, that a person in the situation

of Mr

Prevato would. be requrred to stand trial in

Xew South Wales.

HP ref%-:-s to P v Freeman ( 7 5 Octo-her 19R5, unreported) in vhic'r. t h e Kew Scdth Xales Court of Crircmal Appeal had

recard to t 3 e fzct that the re1evar.t coneuct took place over

___.

? - 7

pears

p r e ~ i o u s l 3 ~ .

and thac

~ h f

appell~~ts

hac! served a

Srlef _=trio< ln cxstoZy ar,d underg0r.e a lengthy rrral, in

6eclining to order a	new trial after sftting aside	their
convictions.

I sgree w i t h counsel that It 1 s highly unlzkely

L - Z i t a persm lr? the position of Mr

Trevato would

now be.

asked to stand his trial in New S o u t h Kales;

but it is not

clear to me that the magistrate w a s entltled to take that matter into account. Counsel for the itpplicant refers to

Malavsia-Sinqaaore Airlines Limited

v Farker C19723 3 SASR

r5 .

The Justices Act 1 9 9 2 (NSW) requires a msglstrate,

in prcceedin,Ts for

comoitta~

- L C ~

2 - trial first to ccn-.l?er

&ether there is evidence capable of satlsfymg a reasonable

~l-lry, properly Instructed, of the qullc of the defendant

5eyond reasonable doubt:

ser s . 4 1 ( 2 !

read with s.Gl(ei.

that question is answered affirmativeip, certain procedures

a r e to Se r;aken i r .c ldding the provlslon of sn opportmicp	to
the dtfendznt =G give evidence. Upon completion of those

p:-oceEures the msglstrate must determine whether

reascnabie ~ 1 ~ ~ 5 7 ,

prgprly ins-ructed. "wculd not lIle I~].:?l_v

- .

t r ~

ccnr1cc t h e defendant".

nnly 11 t?.e maqistrate 1 s not

r?;3t r~,~in~c.n

m s y h e c u m n , i t fcr

zriLj-l:

see S .Al.

6 ) .

Sertim 41(5j was amtnded following the derlslon ~f

tke bJev Sclu'h

Whles Court n f P.ppea1 In i-kntworfh

v 2ocers

C13fi41 3 !ZhTF, 433 .

Ir. Car l l r ! v ~C!::dkh~~r.thoi (13 iCovernSer

' ?Ss , nct rzporzed) G'Erien C.;.

uf Cr.3 analyzed the

requirement of t h e Fresent subsecticn.

Hls Honour referred

to the necesslEy for

the maqistrate to give attention "to

the weiqht 3.nd acceprability of the evidence In

relatlm to

the character of the evidence itself and the credlbility

...

, I

4R.

~ h e

v i t n E z ? e s

whn

2ave

i t " h~

h e

r e 2 e c t e l

t h e z . r c u n e n t

-,hat

%he word c ~ f a conv9czion.

"likely" 1mpor;ed an Lnquiry as t o

t h e p r o b a b i l i t y

FIe went

on:

"257

this

s t a g e

t h e p r o c e e d i n g s

r;he

m a g i s t r a t e

has

d e t e r m i n e d

t h a t

upon a l l the

evidence

f o r

the

p r o s e c u t i o n ,

i f

believed, a

] c r y c o u l d r e a s o n a b l y f i n d

the

of fence proved

Seyond

ressonable

doubt .

Having

heard

a l l

tha t	ev	idence	and	then	the	e v l d e n c e	f o r	t h e
. -

QeiPnCP he

i s t o make

f o r e c a s t of

the e f f e c t

a l l the evldence	would	have	upon	such a	j u r y .
. . .

In de t e rmin ing then whe the r

de fendan t shou ld

3r committed f ~ r

l a l

the

f u n c t i o n m t e n d e f i

by s.41(6! as b e s t

s e r v i n g

the

I n t e r e s t s o r

cornpeclng

i n t e r e s t s of

a l l concern&

i s , i n my

:Flnion,

that the <=fenclan'. should be

m s c h a r q e d

when

ar,

o p i n i o n

c a n a f f i r m a t i v e l y

be reached that there i s no real chance

p r n s p e c t

c o n v i c t i o n b u t

th+t i n

t h e a b s e n c e

such

an o p i n i o n tke defendant

should

c o s i n t t e d . "

_ I -

1?,'2r?

:~i~.?,:lvec!

in t ! ~

innti7stion and plsnninq

cf th? allege6

9ireni.e than 1s :he applicant. In flavies v Zlrector of

- -

?.J?IL~J:

? r o s e c u t l c q s

E19543

278 at 2 . 2 5 7 Lord Sxnonds,

L.C., speakmg fo r the House of Lorck,, approved p.V

Easkerville EiSi63 2 KE 658, in which the Court

of Crlmlnal

.i..ppe&l set cut at

p.6E3 t h e law relating to the evidence of

accomgiLces in these terms:

"There is no d2ubt thar: the uncorroborated e n i e n c e of an accompiice is admissible in

law: . . .

But it has long been a rule of

practice at common law for the ~udge

C O warn

r;he jury of the danger of convicting a

prisoner on the uncorroboraLed testimony	of an
accorr2llce or accompllces, and, in the

discretion of the judge, to adnse them nDt to

coEvict upon such evldence; but the judge

snoulc! point out CO the ~ u r y

that it is wlthln

their legal srovince to convict upon such

lunconfirmed evldence: . .

This rule cf practice has becoFe virtually

e~uxvalrnt to a rule of lax, and since the

-slur1 si Criminal "ppeal Act :&me lnto

f:lgera:fon

this ICourt hzs held that, in :h?

;ib!se-:ce $3-

such a w a x i n g by

the

~ u c i g ? , the

c c - ~ : ; ; c r ~ x ~

mu:;

55 q~ashed:

. . .

if air;e:- the

; r - , p ~ r :?.1ctlcn

b:7

::-LE.

! u d q ~ . the

~ u r y

nevertheless c m v l c t the prismtr, this lC2ur:

m'lli not qxash the conviction merely upor, the er9und that the accomplice's testimony was

uncorroborated.

It can but rarely happen that

the jury would convict in

zuch

circ1umstances."

The Sosrt went

t3 discuss wht constituted czrrshrative

evidence: concluding zt p.667 with this statenent:

"X? hnld that evidence in corroDoration must 5e

independent testimony vhich affscts the

accused by connectin9 or tendmg to connect

h i m wlth the crime. In other words, it must

be evidence whlch implicates him. that

i s ,

which confirms in sane material partlcular not

only the evidence that the crime

has been

committed, but also that the prisoner

committed it.

59 .

Cour.sel

for the Ittorney-General argues that the

ztct-mrnt cf !3r Paesstto furnishes corrobgration of the

statement of Mr Ruggrro.

I do not + h m k that it ices. I put

to one side the drficlencies In that statement which I have

alrezdy noted: the lack of proper identiflcatlon of the

person referrec! c5 as "Prevato",

t h e :;cl.:

of a date for

t k e

incident ana the lack

of any Indication that

Mr Paesotto

himself saw Mr Prevato on the evenmg in question. If these

matt2rs be assumed hgainst the

fugitive, there is matsrial

tend~ng t~ confirm that c?? an unidentified Scndsy evening Mr Frevato enterpi izhe Narconi Institute in ccmpany

Kifn Yr

Euggero;

X j l r Taesntto standing watch outslde

with Xiss

Grigglo.	3ut t h e r e is no admssible evidence in Mr
-7-

r - s s o c t o ' s statement ',c

show "that the crime !:as

been

~comrnirtet", stlll less

to show tha t Yr PrevaLo comrittee it.

?.?d, In 6r.p event, a Iury wouid have t o

war.&

that Xr

C a e s c t t o =as himself

an accorr,plice so thac eve? his

corroboration must be treated wlth extreme caution. Given

izhe age, sources 3rd lack of partlcularity of the statements

a re3scnable a u k - y ,

crrcperly lnstructe?, wxlld, in rt.y

rNpinion, be

l i k e l y to re3ari the evieence ZLPY contaized 6s

l?sufficientip r;robatlivs to warrant the cozvlctlon of the

applicant on counc 2.

In the words of C'Srirn C.J. In 2r.D.

the apFrcFrlatc Zplnion

1 s that there vould be

"no real

chance or prospect of convictlon" upon this evldence;

I ,

si.

. -

"Clffence of a Dolltics1 character"

Sectix 13(1) cf the Extrsditlon (Foreicrn States:

m Frovldes that a person 1 s not llable to be surrendered

C O a forelgn state

" ~ f

the sffence to which the requisltlon

for his surrender relates is, cr is by reason of the

circumstances 1'1 which lt is alleged to have Seer, commlttea

or c.-as committe8, an offence of a pcllitical character o r if

the requisition for

hls surrender has in fact been made with

a i'lew

L 3 try o r pX?iSh him f o r ar? nffence of a political

Article VI11 of the Treacy between ?-usl;ralia %c6 Ital:y sontalns .z slmilar, althcugh nct ldentlcal,

-,rcracter".

' ~ C - J l s l ~ p .

t-elaclnq to the

sppllcation of that provision but counsel

f o r the Attorney-General submit

zhat It 1 s unnecessary for

the Court, in the ?resent case, LO conslder those

authorities because, In this case, the question whether any

of the alleged 9ffences was

an offence of a political

5 2 .

* .

~hsir3ct-r 1 s a natter fr~r

:he Attornep-Genersl alone, and

not for the Court. Ccunsel draw attenElon to the scheme

xhe Art, pcxting out that , if at the relevant time the

Attorney-General is of the opinlon that the relevant

offences are of a politic21 characcer,

h e or she is

fcrbiciden both to initiate estraciition proceedings in an

hstralian cour~

( s . i 5 ! 2 ) 1 and to Issue a wzrrant for the

surrender cf the fugitive (s.lEA(1)). Counsel concede that the maT-lstr=te is entltled to have regard to the question whether the offence 1 s one of a political character In a

case where

t h e fugitive has adddced evldence to that effect.

T h s concessloc 1s made upon the basls that

s.l7(6)!b!

permits evldence to be adduced by the fugitive on that

issue, a permission which would be pointless if the

aaTistrste wzc required tc disregard chat evidence. Puz it

1 s zald that where no such evidence

is presented the

n i q ~ s t r z t e

-- and OR rfvieW E ~ L ~ S

Court -- is not concernet

c;lth the .;ues~:cn.

I do not accept this con-tructlon

of the Act.

l _ - l _

Ssrt'oy

1 3 1 1 :

~r-..v;des

surrenderee" f-.r extradition if the relevant oifencs- is an

Iffence of a political character. 9y s.l7(6>(bj the

that a person "is not lis51e

to be

magistrate is required to be

satisfied, before making an

or-dsr for cmmlttal of a person, that the person "is llable

EO be surrendered". This Ip.eans khat, in any case in which

any claim is made of non-liability to surrender pursuant to

z . 1 3

i see

a n ?

E $ ~ t l e r

( 1 9 R L ) 57

2 5 5 ' ,

t3-5

migistrate mlust

sa t i s f ied that

t?,?

c l a i n i s u n f o a n ~ e d a n 6

that

t h e p e r s m 1s i n law

l i ab l e t o Se

s u r r e n d e r e d .

For

t h e

p u r p c ~ s r s of

d e t e m i n i n g thar:

m a t t e r

the

maclstrate

i s

r equ l r ec !

t o cons ide r

"any

evidence

proper ly

adduced by the

p e r s o n " ;

b u t

i t

i s n o t

p re -cond i t ion

such

5 e t e r m i n a t l o n

chat

ev ldence

his

been

iciduced.

Tre

p o l l t i c a l

c k ~ r 5 c t e r

t h e r e l e v a n t

alleged. z f f e n c e may

a p ~ e a r

from

the evidence

adciuced

t o the m+giEtrate on behalf

t h e

At to rney-Genera l ;

c f .

the comment cmf

L x d Goddard C.Z.

i n p-

Governor

n f

P r i x t c n P r i s o n ;

p a r t e RolczvnsKi

Cl9551 1

172

5 4 2 a t p .550 . A t t o r n e y - G e n e r a l

I t

i s t r u e ,

c o u n s e l f o r

the

p o l n t s

o u t ,

that

i s l i k e l y that

the

Attorney-General

Fill have had all of

th i s nar :e r l& l before

him it ??;e t;nr

-.+en

he dec12ec! t o i n s t i t u t e t h e t s t r a 5 l t l o n

g r o ~ e e < l n p s C O t k A % t , i f

r.3

e\-iderrc?

idduced

C ~ R S e h a l f

f > ~ ? i t l ~ ,

t';s

nicris-rs'e

1 s p laced

i n t h e pnsltior, 9; 5

b e i n ?

-.sl.rec!

tcs

r e v i e w

t h e

op171m cf El;?

Attorney-General

upon that p o i n t .

But

t h e r e 1 s nr, anomaly i n that ;

i t i s

u n r e a l i s t i c

t o expec t

that

the

Attorney-Genersl would have

1.-

.=L

4 r).t

~ 5 . ~ 5

oppcrtunlt;

:'.e

m a F l r t r a t e

f c r

unhur r i ed

c u n s i d e r a t l o n

the

r a s e and ,

cource ,

the

Attcrney-Generzl wculd

l a c k

ths

b e n e f i t

arFunent

behalf of t h e

f u g i t i v e .

F i e p o l i c y

t h e

E v t r a d l t l o n

: F ~ r e i r ; n

S t a t e s ) Act

i s t o e n s u r e

t h a t ,

a t each stage of

the

e x c r a d i t i o n p r o c e s s , c o n s i d e r a t i o n

i s

g iven

t o

a.n.y

m a t e r i a l

c u g g e s t l n g

that

t h e o f f e n c e

was

p o l i t i c a l c h a r a c t e r :

I ,

54,

as was sa:& by 7iscount Fadrllffe in 3chtraL:s ac 2.556 in

relaczor. to t h e simllar scheme cf c;?e 'Jnlted KinTdor Act:

"it seen?s to Se the evident Intention	3f the ccaLuLe that
L-

L n ~ issue" (of political character) "should be cons;dered

a substantive matter at any stage by any authority,

maglstrate, court or Secretary of State, which has a duty to

serfzrm in relation to the extradltLon". In tkat case fresh

ev:dszce upon that issue was permftted to be adchced even In

the House of Lords. The question whether the offences in relation to which the extradition of Mr Prevato is sought

B ~ E

offences of a political character fell wlthin tne

jurlsdic~ion of the maqistrate. Upon an application for

review of the magistrate's decision it is a matter f o r thls

Court.

The flrst c?.se

>Ander S. 3 ( 1) of t h e Unlted Kingdom

ZtatJte W B S In re NCzstlonl C18911 1 9s 149, a case In which

ertrsditioc was cc1ugb-t ~ p o n

a charge of r u r i e r .

The

prisoner w.25 sald to have partlclpated in an armed

lcsurrecticn against the government of the canton of Ticino

'vitzerland

111 tke course @f w h c h he shoz i

aexber of

the State Councll of the canton.

T%e

givisional Court

>~~rph.;ld

the fuqitive S claim t ha t the offence was

one of a

political character.	All members of the Court emphasized
L.

diat lt was not enough that the alleged offence had taken place in the course of a pclitical disturbance -- a person

might use such

a disturbance as a cloak for an act of

. .

private -:2ngeance

o r greed -- b2J.t that t h e crime WES

political if committed as part of a polltlcal actlnty and xith 3 political object in mmd. Each member of the Court

acrepced that an offence was

of a political character if,

with the requislte object, it occurred in the course	of a
political dlsturbance.

1Jo attempt was made in Castionl to frame

exhaustive ciefinition of "offences of a politlcal

zhar&cter". Neither was It necessary to determine whether

It =as an essential characteristic of such m offence that

there %e a disturbance cf the peace or that there

b e

political parties contending for

power; both features were

?resent in Castlor.1.

The latter question, however, arcse

xhre? ~ P E ~ S

later in !?e Meunier Cl8947 2 QE 415;

a case 19

whch FL-?.!?cP sought t h e txtradltion of E

self-confessed

snar:'nizf

cn c h x ; ~ . s

of wilfully causLng c e r z z x explzcions,

ccras:cn:ng death. rill? i,isr<slcn&l Court htld that, in crier to constitute an offsnce of a political character there must

3~ :%WO

c8 r mcre parties competing for Government in the

:-.*ql.:p-:t:t-:c

Stars, e a c h seekin? to ~mpoce

=he qovernnent of

their cyi2:c" up,^ the other. As the parcy ~

whom M

I ~ ~ ? J R L ; . ~ wzs zssociated was oppose? to all governments, this condition was not fulfllled.

5 6 .

7 more recent tlmes th? nzrrow lnterpretatlon

adoptec II? KeurLier has h e n rejected. Thus in KoL.czvnsl.1 the Divisional Couriz upheld a claim of political character

made by seven members of the

crew of a Polish fishing

tr3wler who took charge of the ship whilst

it was in the

North Sea -- assaultlng and/or imprisoning certain officers

In the process

-- and brought it into port at HJltbg, where

they soug’nt political asylum.

in answer to exizradition

proceedings brought by Poland, based upon various charges	of
assault, wodncing and damage to property, the seven men

arFued that the offences were

of a political charzcter in

that it as a rebellion against the politLcai offlcers

commanding the ship: or alternatively that the requisition

had been made with a vlew to trying o r punishing them for an

3:fr;nce of B politrcal character. Nocwithstandlnu that ?Gland. wss i 3ne pr’y Sti-t;., and that :he

s?ven men wert

r-.t members of

2 p z l f t i r - h i group, they succeeded on the

S K X . ~ ! grmnd.

?he Co1u-t was saclsfled thht the offsnces

for which the men would be tried were che offences alleged

in the extraditfon proceedings

-- all of which were

extralltzble offer.css and not cSvio,Jsly _=.olltical in

characr;er -- blut

c h z t ,

h ~ v i n g

regard 50 evidmce as t,s the

recording of thelr conversations and. the circumstances in

which the rebellion occurred, the prosecution would in	fzct
be a political prosecution.

The concept cf an "c.ffer.ce of a polltlcal

characrer" received extensive attentlon m che House of

L O L - ~ S ir: Zrhtraks. The fugltivc clam& of perjury and chlld steallnq alleged against him

that the offences

by Israel

f e l l withln this description because they arose out

f hls

intervention to ensure

that the child, his nephew, =as

krodght up l n the 3rthod3s Zewish faith.

E ~ t h

the issue of

religious upbrlnqinq and the case ltseli were matters

polltlcai controversy in Israei but the fugitive

had. acted

merely out of personal conviction and not

as a men?Ser of z y

2clltical party. ?is claim of political character failed.

h r f Seid pointed out, at p.581, that the llst of

extradltabie crimes did not include any offences wkich

were

m-ertly political, so that the question for

the court must

-.lr,Jags 5e to U e t e r ~ l z e

w!lethpr

sn offence which

15, on its

face, an ordinary crlminal offence

has in fact a pclitical

charact?: .

At p.513 he ~ b s e : - ~ e d

that

t h e ;.al-lrt

7 2 s p > r

concerned with the ques+-ion

wnetser ar,y

political c s ~ ~ ! s e

espoused by the fugitive was good

or bad -- 2nd compare the

observatim c.f Denman J. in Castloni at p.158 that the court

1 s r,?t ropcrrned wlt5 t k e wisdom of czrr:.rir.$- ,3ut tht

rele-;?nL act in the advancement

of that cause -- but that

" t h e ngtlve and pl-lrpose of th;. zcc~~cec!

In cam~lttlng

the

cfiencr Rust be relevant and may be

decisive". His Lnrdshlp

V ~ J I ~

,111

to r e j e c t the nrcessity f o r open incurrection o r for

an intention to change the compcsition of che government:

5 5 .

“An underground resiszance movement may be

atcerpting to overthrow

a government and it

could ‘nsrdly

Se that an offence committed. the

day before open disturbances broke out would similar offence commltted two days later would be of a political character. lind I do not see why the section shouic! Se limited to attempxs

to cverthrow a government.

m e use of force,

or it may Se other means, to compel a

sovereigr. to change his advisers,

o r to conpei

a Tcvernment to chan?e

I t s policy may be just

as politlcal in characzer as the use

of force

r o achleve a revolution. And

I do not see why

it s‘rroulcl be necessary that the refugee’

party should. have Seen trying to achieve power In the State. It would be enouqh if they were trying to make the government concede sone

measure of freedom but not attempting

supplant It.

”

Viscount Radcllffe thought

that the concept of

political rJffence should be limited to opposition between

citizen and government; Lhat it

is not enough that tLere be

a cmtest hetw~en

cpposing poiitical forces not In power.

Fe	ss13	?it	r p . 5 ? 1 - 5 9 2 :
I -

-q my ,cpinicn the ide2 that iles behlnd the

phrase ‘offence of a pslitical character’ 1s

t h t the fugltlve 1 s at odds with the State

that apslies for his extradition on some issue

connected with the polltlcal control

pvernment of the country. The analogy of

political’ in tnis context is with

‘pcllticsl’ In such Fhraees as

’polltlcal

reflJgee,

’ pnlltlcal asylum’ gr ’~glitical

?rlsoner.

‘

It does lndicace, I t i n n k , that

r_he requesting State 1 s after :-:m

for reasons

ozher than the enforcement of the crlmlnal law ln its ordinary, what I may call its common or international, aspect. It is this idea that

early cases of In ye Castioni and In re

=he judges were seeking to express in the two offence with an uprising, a disturbance, an insurrection, a civil war or struqqle for

power: and in my

opinion it is still

necessary to maintain the Idea of that

connection.

It i s nct departed iron 39 ~ a k n g

a llberal view as =G what is meant by

disturbsnce or t h e s o other words, proviced

that the idea cf pclitical opposltlcn

bjetyeen fugltlve and requestFng State is not

lost sight of: b1uE it would be lost si55t of,	- i think, If one were to say that all offences
were polltical offences,	so lonq as they could

be shown to have been cortmitted for a

Dolitical object or

with a political motlve or

?or the furtherance of some political cause

caxnpaign. There may, for Lnstance, De all sorts of contendi?.g politlca.1 organisatlons o r

forces in a country and nembers

of then; may

cornmt all sorts of infractions of the

criminal law In the bellef that by so doing

they will further thelr polltical

en&: >ut

l f the cer.trsl qovernment stands aparL and is concerned only to enforce the criminal law that has been violated by these contestants, I

see no reason why fugitives

shoulc! be

protected Sy this couztry from

I t s

~nrlsdiction

or! the ground that they are

polltical offenders."

Sktes) Act, In relation to a pn6ing criminal trial in

the

Federal Popublic of Germany.

Tne offences were alleged to

hcve occurred in

Khite Russia durnq the wartime occupation

of that area by Germany. Barwick C.J., with whom Gibbs and

Stephen JJ. agre?d in terms and Mason

J. agreed in

- - _

- -

50 .

cl-bz-,ince,

s p ~ l l e d

t;?? xor3s cf YrscxnL 3adcllffE to

dismlss the claim. At p.184 his Sonour sald:

"Here, the offences of wi~ch

Alberr: Rruger is

accused are founderl upon acts which are not

snocjn to have been dcne in any sense

by way

cf, or in performance of, political opposition

by him to Germany as it formerly was, or to

West Germany which now prosecutes him: nor is

~t shown that the17 were done In the course of

3 political dlsturbance.

I will refer shortly to two recent English decisions cited by counsel: F: v Governor of Pentonville

Prison: ex parte Chencr C13737 AC 331 and R v Governcr sf

PEnLorville Trison; ex parte Sudlons C13803 1 KL!? 1110. soughr: the extradition of a Talwanese ciLizen, resldent In C,he 5nitci States, who was a member of an organization op2osed to 5he rulinu Na~ionalist Farty government Ir.

Tzi~??.::.

I<r Cieng wzs accused cf the attemptei rnurcer of tile

TP;tws:-,est

- _.

~,ricc-pre]p.ier d ~ i - i r , ~

- ~ i ~ l t

of the latter to -i

-:e

i J n i ~ e 2 States. 9y majcrity, Lord Eodson, Lord P:plock and Lord Salmon, Lord Wilberforze and Lcrr! Sinon of Glalsr!aie

tissenting, the Xouse of Lore5 re_:ected

his clslm that the

z f f e n c e was one of s pclizlcal sh+racter.

The majcrlty

appll4 che words ~f Vlsccunt 2adcllffe 13 Sch5rakz 5'3 hold

that there must h corflicz upon a pclitical matter between

the fugitive and the government of the requesting State. In

the case under consiteration the fugitive

nad no quarrel

with the Unlted States go-Jernment

-- the requesting State

but only wlth the Taiwanece government.

The facts cf Chenq &re remote from zhe present case

but the speech

of Lord Diplock 1 s interestlng for its

em~hasis

Llpon single plurpose.

At 2 .945 his Lordship said:

“So, even apart from authority,

I would hold

thit prina facie an act committed in

a foreign

state was not

‘an offence of a politlcal

character‘ unless the

o ~ l y

purpose sought to

Se achieved by t h e offender in committing It

were to change the Fovernment

of the state In

whlch it was committed, o r to induce it to

change its policy, or to enable him to escape

from the ~urisdiction of a government of whose

pollclcal policies the offender dlsapproved

but despaired of altering

so long as he was

there.

‘I

Budlonu wes also a case in whch the United States sought extradition; on this occasion of two persor.2 sald to

hsve Seen involved irl Surqlarles of various offlces of

Unir;e.’ States government agencies.

The burglaries were

comritr4 by mmSers of the Chl-lrck cmf sclentclopy with the

~ ~ r c c s e

(zf ckt3ininT infcrmaLion r?r;irilnT actis::- r-aksn

sqalnst the Church by those agencies. The Zivisimal Court rejected +he clzim of polltlcal character, saylng st p.1124:

” . . . chat the qplicants did not or&er these

S~r7laries

t3 take place in order to c‘nallsnge

t h e pc’lir;lcal consrol cr qovernment of tke

Unlted States; they Lid s o CO further the

1nteresr;s of the Church of Ecientology and its

mrnbers . .

Counsel for the Attorney-General polr.ts OUL tha t in

E,udlon,T there was no reference to the ob~ect

of changmg

cpvernment 2olicjr;

but the case cannot be regarded as

z luzhcr l ty for the ~ l e w

tkat suck ZT.

o k j e c t

m a ~ y nzt

sufficient to mstizute an offence of a poiltlcal chracter.

This would be inconsistent	with the speeches ir! both
Fchtr-iLks and Chencr.

Tl~e evidence in the present

case, emerain? from the

stateaents of all t h r e e wiinesses, was tLat the acts ln

relation tc which .M.r Prevazo is chargei occurred in the

CGUTZ? of a long and bitter campaigri to induce a change in

educational policy in government S C ~ O O ~ S

m Padua. The

evidence ioes not show whether these schools were conducted

by the natlonal government or by a provincial or local

qmernment but it is not an essenzial requirement of a

2olitical offence thst the relevant contest be

with the

natlonal goTrerr?ment. Czstlcni ckows that. The early fie5ate

upon tke necessity fc:

there to be a chmpalqn to change the

Tovernrnent itself W'S

cl-rcisively resolve5 111 the negat lvs 12

5ch:raks;

It 1 s encuqh that there

he a cmcerted carnplgn

to c:~ange government policy. Not every offence committed

the course of opposition to government policy is

a political

- -

.?::enc~.

%?re

m u - c t be, it leazt, an crTanized, Frolorqecl-

canpaiqr. lnvolviny i number of peo7le.

The offence must be

~d~rpct_e3.

s c l e l y t o that purpose;

it nwct not

i ~ v o l v e the

sstisfactlon of pr1var;e ends. And the

offence must be

comnltted in the dlrect prcsecution of that camrjaign:	sc an
assault upon a political opponent In the course of the

. - C . -.lrp5ign Inay

a pqlitical cffrnce bLt dn zsseult

upon a

h n k teller :n the course of a robbery carried out flmds f o r use in the campalgn would not be.

t o obtain

In the present case these requirements

are all

satisfied.

The matter of purpose does not depend only upon

the st&tements G f the three co-accused mer..

it 1 s

fundamental to the case alleged by the Republic of Italy

against Mr Prevato.

Nor; only is there no suggestlon of

prlvate purpose; count 1 of the warrant alleges that the

persons named thereln carried out the alleged offences

' ' m

execution of a program adopted by

t h e 'Ronde Armate

Froletarie' of which they were members, which program was

Lntended to oppose 'selection' in schools". Tie mcidents

at the Merconi Instlrute %R?. r h e Selvatizo Ir.stitdte were

35'. acts preliminary or incidental to the canqalgn; the11 -

acrlve act5 of protest, >art of r5-e politiccl campa:Tn

1t:eif.

Cnce It 1 s ,:?termlneC thar:

zhere 1 s no necrss1r;y

for the relevat caxpaign to h e one seeking a change in

government, that it is enough that the campaigners

eek a

.:h=n~.- of gcvernment policy, rhtre is no valle distlncrzm

Setwe?n thls case and Casti0r.i.

To adopt the words cf Lord

leid in Schtraks, this was a c z s e of "the use cf fcrce . . .

to compel a government to change its policy" and, Upon the

evidence and the allegations, for no other purpose.

For

these reasons I am of the opinion that the

o f f e m e s

alleged

ayainct the applicant

are all offences of a political

64.

Grders

For

k-?as~xi5 I have set O ~ U T it seemed

to me

proper, on 31 January 1985, to eake orders In Application

G.6 cf 1985, In respect of each of the five counts in

relation to wkicb Lhe applicant was committed to

Srison,

that i', be declared thzt the evidence adduced before M Miszalski was not sufficient o ;ustify his trial if the various acts or omission; constituting the alleged offences

had taken place in !Jew South Wales and that che offence was 3~ offence w?-ici, Sy reason gf the clrcmstances in which It

GlZS committed, w?.s

an nffence of a policlc2.l character, in

respect of whlzh the a2pi:cant

was n c c Ilabie to be

sL:rrendere?.

I nrdered chat the decislx? of M r IJlSZalski be

set sslde and in lisu thereof that the

applicant be released

2nd that 'he

Attorney-General pay the applicant's costs.

As I ha-~e

mentioned,

Appllcaclnn

16 af 1986, 1 s

,i:t-ected to a linLted Issue: che questlon whether the msglstrate accorfie3. natural ~ustlce in relation to the

tqus-ction whether the applicant should be

imprisoned, as

distinct from being held ln

some other form of custody

pending the decision of the Attorney-General. In view of

_ _

- -_

- -

the views I have formed, 2nd the orders I have mad?, in

matter G.6 of 1986 that questlon is now academic. I prop3se

to express no view on the question raised but sunply to

order that Application G.16 of 1986 be dismissed with no

order as to costs.

I certify that this and

the slxty-four

( 6 4 )

precedlng pages are a true copy of

the Reasons for Judgment herein

hls Honour Mr. Justlce Wilcox.

Associate: y

A-

Date: 6 February 1986

Counsel for the applicant:	Mr S M Littlemore
Solicitors' for the applicant:	Messrs Malcolm Jobs Company
Counsel for the respondent,	Mr D Rofe, QC with
the Attorney-General for	Mr J Agius
the Commonwealth of Australia:
Solicitors for the respondent,	The Director Public
the Attorney-General for	Prosecutions
the Commonwealth of Australia:

Solicitor for the respondents,

Mrc J Elliston on behalf of

The Governor, Metropolitan	The Crown Solicitor for
Emand Centre and Richard	New South Wales
Peter Miszalskl, SM:
Dates of hearmg:	24 and 31 January 1986

[1986] FCA 13

31 Jan 1986