Weist, E.A. v Director of Public Prosecutions

[1988] FCA 414

C A T C H W O R D S

EXTRADITION - Federal Republic of Germany - whether statement of

acts or omissions vitiated by reliance on reasons	f o r forelgn
judgment.

Extradition (Foreign States) Act 1966, ss.4(1A), 4(1B), 4 ( 3 ) , 10,

12, 1 3 ( 2 ) , 17(6), 17(6 A ) , 18

Extradition (Federal Republic of Germany) Regulations, reg.4

Euaen Alexander Wiest

~ ~~ ~ ~~ ~~~ ~ .~.~.~.~. . .. - _ _ -

v.    The Director of Public Prosecutions & Anor

NSW G1062 of 1988

PINCUS J.

SYDNEY

2 8 Y 1988

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY

DIVISION GENERAL )

N.S.W. G1062 Of 1988

BETWEEN: EUGEN ALEXANDER WIEST

Applicant

AND:  THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AND:  RICHARD PETER MISZALSKI

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS 3 .
DATE OF ORDER:	28 JULY 1988
WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:

1.    the decislon of the second respondent made on 31

May 1988 to issue a warrant commltting the

applicant to prlson to await the warrant of the

Attorney-General for his surrender to the Federal

Republic of Germany be confirmed;

2.    the application be otherwise dismissed.

NOTE :	Settlement and entry of orders is dealt wlth in
-	Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)

NEW SOUTH WALES DISTRICT	REGISTRY	)
GENERAL DIVISION	1

N.S.W. G1062 Of 1988

BETWEEN: EUGEN ALEXANDER WIEST

Applicant

AND: THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AND:  RICHARD PETER MISZALSKI

Second Respondent

PINCUS J. 28 JULY 1988

REASONS FOR JUDGMENT

The applicant seeks relief under 5.18 of the Extradltion

(Foreign States) Act 1966 by way of review of a declsion of the second respondent, a magistrate, ln proceedings under that Act. The appllcant also attacks the same declsion under the

Administratlve Decisions (Judicial Review) Act 1977.

It should be mentioned that the first respondent to the

applicatlon just mentioned, the Dlrector of Publlc Prosecutions,

also made an applicatlon relatlnq to a declsion of the second respondent, concerning an undertaklng as to costs. It was heard

with the other application, but raises a distinct issue, and wlll

be dealt with in a separate judgment.

application This concerns, principally, the

operation of s.l7(6)(a)(i)(C) of the Extradition (Foreign States)

- Act ("the Act"). That requires, in effect, that the second

respondent have before him a "statement in writing setting out all
the acts or omissions in respect of which the surrender of the

person is requested", and the fundamental contention was that no

such statement was produced. That involves an analysis of the

documents which were relied on before the second respondent and,

of course, an interpretation of the words just quoted.	A second
point taken, closely	related to the first, was that evldence

bearing on the applicant's state of mind was wrongly rejected by the second respondent. A thlrd point whlch was made but not strongly pressed was that the second respondent should have held the attempt to extradlte the applicant to be an abuse of process.

The central provlslon of the Act is s.12, whlch says

that where ~t applles	in relation to a foreign state "every
fugltive from	that state is liable . . . to be apprehended and

surrendered to that state as provided by this Act . . . I ' Section 9

makes the Act apply by its own force to certaln states and s.10

empowers the making of regulations applying	the Act to states wlth
which Australia makes an extradltion treaty (sub-ss.(l)	and ( 2 ) )
or a treaty containing provisions relating to the surrender of
fugitives (sub-s.(3)).	Section lO(4) gives the Governor-General
power to make regulations applying the Act to a foreign state	if:

' l . . . satisfied that, if this Act applied in relation

to a foreign state, the law of that foreign state

would, with or without anylimitations, conditlons,

exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes wlthin the meaning of Part IV

who are found in that foreign state, or within the

jurisdiction of, or of a part of, that foreign

state . . ."

Under s.10(4), there have been made the Extradition

(Federal Republic of Germany) Regulations (S.R. 321 of 1985, S.R.

294 of 1986); reg.3 applies the Act to the Federal Republic

subject to certain limitations and the like.

The Act provides for the giving of certain notlces by the Attorney-General (s.15), the issue of warrants for

apprehension by magistrates (s.16), and the bringlng of persons apprehended before a magistrate (s.17). Here, steps were taken

under ss.15 and 16, but no question arises relating	to them; ~t 1 s
not in dispute that	the applicant was apprehended under a warrant

within the meaning of s.17(6) of the Act, which reads in part as

follows:

"If the person was apprehended under a warrant

issued in pursuance of an authority by the

AttoKney-General in a notice under	paragraph
15(l)(a) or the Naglstrate receives a notice	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 accused

of an extradltion crime -

a duly authenticated forelgn

warrant in respect of the person
issued in the foreign state that
made the requisition for the

surrender of the person or a duly

authentlcated	copy	of such	a
warrant;

a duly authenticated statement in wrlting setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence;

and

(C) a duly authenticated statement in
writing setting out all the acts or
omissions in respect of which the
surrender of the person is
requested; or

...

(b) the Magistrate is satisfied, after taking into

account any evidence properly adduced by the person, that the person is liable to be

surrendered to the foreign state that	made the
requisition for the surrender ..."

In what follows the expression "para. ( A ) " will refer to the above para.(A) and similarly for paras.(B) and (C). The sub-section goes on to require the magistrate, ~n cases like that of the applicant, either to commit the person in question to prison to await the warrant of the Attorney-General for surrender of the person, or to order hls release.

Sectlon 18, under which thls application is brought,

reads In part as follows:

"(1) Where a person (in this sectlon referred to as

a 'fugitive') 1 s committed to prison or otherwlse ordered to be held In custody, or is granted bail, by a Magistrate pursuant to

period of 15 days after the date of the	sectlon 17, the fugltlve may, within the
decision of the Magistrate, apply to the
Federal Court, or to the Supreme Court of the
State or Territory in whlch the Magistrate was
sitting, for a review of the valldity of the decision of the Magistrate.

...

( 3 )

Upon a review under sub-section (l), the Court shall have regard only to the material that was before the Magistrate and shall -

(a)	if satisfied that the decislon of the Magistrate was valid - make an order confirming the decision; or
(b)	if not so satisfied - order that the fugitive be released."

The reference to

the Attorney-General's warrant in

s.17(6) explained by s.l8A, the general effect of which is that If

the magistrate's decision under s.17(6) is not challenged or is unsuccessfully challenged, the Attorney-General may, subject to

certain conditions,	by a warrant order that a person specified in
it take the fugitive into custody	and convey him to a foreign
state and there surrender	him.
It is important for the purposes of the present case to notice that the appllcant is deemed to be a person accused	of an
extraditlon crime withln the meaning of s.l7(6)(a)(l).	Although

he has been convicted In the Federal Republic of Germany in relation to matters the subject of these proceedings, he was not present when convicted, and s.4(3) provldes:

"Where a person has been convicted in the absence of

the person of an offence against the law of, or of a part of, a foreign state, whether or not the conviction is a flnal conviction, then, for the purposes of this Act, the person shall be deemed

not to have been convicted of that offence but	shall be deemed to be accused of that offence."
It seems clear that full effect must be given to s.4(3)

and the applicant suffers no disadvantage, so far as the present

proceedings are concerned, by reason of his having been convicted

in the Federal Republic. As a practical matter, however, hls having been convicted is a source of the problems relating to the application of para.(C), which were raised before the second respondent and before this Court. The course taken was to produce

the judgment and reasons for ~udgment of the Court in the Federal

Republic which convicted the applicant. They were said by the first respondent to be part of the material to which reference should be made to identify the acts or omlssions in respect of which surrender was requested and said by the applicant to be too discursive to fulfil that purpose.

It was argued for the applicant that one may seek

assistance, as to the proper meaning of the expression "acts or

omissions" in para.(C), in those provisions which attach

significance to identlfying the acts or omissions in question. In my oplnion, that is true, but with a reservation. As I have mentioned, the Extraditlon (Federal Republic of Germany) Regulatlons made under s.10 apply the Act to the Federal Republic, but do so subject to limltations; they are to be found in reg.4 and depend upon identifying the "relevant act or omisslon" as

there deflned. The expression "a . . . statement I n wrlting setting

out all the acts OK omissions" must primarlly take its meaning
from the body of the Act, not from the context of a later

regulation maklng the Act appllcable to a particular country,

which uses that expression or llke expressions.

One must identify the acts or omissions In respect of

which surrender is requested for a number of purposes.

One is that there is a limitation with respect to

seriousness, and a "double crlmlnality" requirement, In s.4(1A) of the Act, which uses the expression "relevant act or omission",

defined in s.4(1B). Those two sub-sections are as follows:

"(1A) An offence against the law of, or of a part

of, a foreign state (including an offence

against such a law relating to taxation,

customs duties, forelgn exchange control or

any other evenue matter) for which a

requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if, but only if -

(a) the maximum penalty for the offence is

death or imprisonment for not less than

12 months; and

(b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australla where the person was found, that act or omission would have constituted an offence against the law In force in that part of Australia the maximum penalty for whlch is death or imprisonment for not less than 12 months.

(le) The reference In paragraph ( 1 A ) ( b ) to a

relevant act or omission by a person 1s a

reference to -

(a) an act or omisslon by the person -

(i)which is, in or In connection with the relevant requisitlon, alleged

to have taken place; or

( 1 1 ) of whlch evidence is produced in

connectlon wlth the relevant

requisitlon; or

(b)	any act or omission that is equivalent to
an act or omlssion referred to in
paragraph (a). "

It will be noted that s.4(1B) appears to be drawn on the

assumption that one may find the act or omission alleged in the

relevant requisition; nothing else in the Act says so. It 1s

clear	from	s.17( 6 1 ,	quoted above, that material produced to a
magistrate with a	vlew to obtaining	an order committing	the person

in question to prison to await the Attorney-General's warrant is to include the statement of the acts or omissions in respect of which surrender is requested; that material does not include the requisition. Presumably the material mentioned in paras.(A), (B)

& (C) would be regarded as being "in connection with" the

requisition. However that may be, s.4(lB), although relied on by

the first respondent's counsel, appears to me to throw little
light upon the effect of para.(C).

I note, in passing, that there was no contention that the proceedings in question infringe s.4(1A).

Next, one must Identify the acts or omissions for the purposes of applicatlon of s.13(2) of the Act. So far as relevant, that sub-section is destructlve of liability to surrender to a foreign state unless that state has glven an undertaking, to put lt roughly, agalnst prompt prosecution (unless the Attorney-General consents) for other offences than that ln respect of which he has been extradlted - "any other offence of which the person could be convicted upon proof of the facts on

which the surrender of the person was ordered".

To give a reasonably clear effect such o an

undertaking, then, an adequate definition of those facts	is
necessary.
Again, it was pointed out on behalf of the applicant that s.l7(6A), set out below,	makes necessary the ldentificatlon

of the relevant acts or omissions.

It was argued on behalf of the applicant that, because

( A ) and (B), implicitly, and (B) and ( C ) , explicitly, are

connected by the word "and", there must be produced to the

magistrate a separate	document, identifiable as a statement In
writing under	(C), which is self-contained in the sense of

requiring no reference to either (A) or (B).

For two reasons, I reject that submission. Firstly,

without benefit of authority, I would take it that a statement could comply with (C) although lt made some reference to or incorporated lnformation in, for example, ( A ) , as to details of date and place, rather than repeating it all. Secondly, lt

appears from the decision of the Full Court in Linhart v. -	Elms
(unreported, 20 June 1988) that -

"The Magistrate ... 1 s not restrlcted in his

consideratlons imply to the facts relating speclflcally to thls charge. He can have regard to all other relevant facts put before him In the warrant and supportlng documents" (per Foster J., p.5).

Fox J. expressed hlmself to similar effect at p.21 and Gummow J. at p.10 sald that the "statement in wrlting may or may not be a part of the duly authenticated warrant or copy thereof

...

Whatever mlght have been said in support of the

contention that was made on behalf of the applicant, were the point bereft of authorlty, it seems clear enough from Linhart v.

Elms that a statement made to comply with (C) may be filled out by

reference to, or even contained in, allegations in the warrant.

It must be said, however, that extradition proceedings,

which often seem to involve a great deal of trouble and expense, might run more smoothly if those responslble for preparing the documents for presentation to the magistrate could be induced to

peruse and follow strictly the directions in s.l7(6)(a)(i); the

use of elaborate varlants of that procedure, as here, creates

quite unnecessary difficulty.

Next, counsel for the appllcant contended that the acts or omissions must be stated in a concise and preclse way and not scattered throughout a discussion of a set of facts so that the fugltlve has to undertake a dlfficult ask of analysls to identify the former. This is, as lt seems to me, a problem not expllcltly dealt with in Linhart v. - Elms, although statements made by members

of the Court throw light upon it; they are set out below.	The
terms of para.(C) do not themselves express,	or necessarlly imply,
that the statement may contain	no additlonal material.

AS appears from s.18, partially quoted above, thls

Court's function is to review the validity of the second

respondent's decision on the material before him. Counsel for the

first respondent (who was the applicant below) was asked, when the

matter was before the second respondent, to indicate whlch

document was tendered to comply with para.(C). His answer was to

the effect that the judgment of the Local Court at Bonn, together

with the warrant of arrest and the requisition, satisfied (C). Before this Court, he did not suggest that the requisition could

assist in satisfying (C). It	is necessary partly to set out and
partly to summarise	the warrant and judgment; to set them all out

would be inconvenient, for the translation of the judgment runs to

some 3 4 pages, and includes material which could not possibly	be
necessary under any of the three paragraphs.
The requisition refers to the warrant and the Court's judgment, and in effect requests extradition in respect of	an
offence which is identified as being	that referred to in the
judgment; it does not itself set out any acts	o r omlssions.

The warrant of arrest may be set out, so far as relevant

to the point being discussed, in full

"He 1s charged with having,
late in December 1985 at Bonn,
coincidently,

with the intentlon of procuring for himself an

unlawful pecuniary advantage, damaged another

person's property by arouslng	an error through
false pretences, for the purpose of practislng
deceit	in legal relations, falsifled a genulne

document and used a falsifled document.

The accused and the STRABAG BAU AKTIENGESELLSCHAFT

(company limited by shares) were jointly authorized

to sign f o r the account of a joint venture group formed by them. By letter of December 20, 1985, the accused was sent a transfer order by the STRABAG company, this transfer order being made out

to the amount of 224,600.-- deutschmarks in favour

of HANDWERKSBAU RHEINLAND-PFALZ and signed already
by an employee of STRABAG, and he was asked to put

the second necessary signature to the document. He

himself or an assistant acting according to hls

instructions changed, late in December 1985, the

name of the transferee to "Wiest und Companie im

Auftrag AIT" (Wiest and Company by order of AIT) and inserted the account No. 116 061 with "WEST LB

KOLN (Westdeutsche Landesbank in Cologne), for

which account he had the sole power of dlsposition.

The accused then signed the document concerned.

The transfer order was forwarded to the Bad

Godesberg KREDITBANK EINGETFAGENE GENOSSENSCHAFT (cooperative bank). When being asked about this by a member of the bank's board of directors, the accused confirmed that the alterations had been made with the consent of the STFABAG company. The accused closed the account of the Wiest firm after

the money had been transferred and withdrew	the
funds in cash	on December 31, 1985.

Criminal offences punishable under Sections

2 6 3  (I), 267 (I), 5 2 of the STRAFGESETZBUCH (German

criminal code) ."

The other document relied on 1 s the judgment of the Local Court at Bonn given on February 11 1987. Under the heading "Reasons", there are to be in it found sections headed by Roman numerals. The flrst sets out some of the background of the

applicant, for example, his marital and commerclal status as well

as a previous convlction. The second contalns the Court's findings and the third identlfies the nature of the evldence on which the findlngs were based, that IS, the names of the

witnesses, identlflcation of the documents used and the nature of

certain other inquiries made. The fourth sets out the Court's

conclusion as to four possible criminal offences which were

apparently argued to be based upon the findings; as to two of

those the conclusion	was favourable and as to the other two It was
unfavourable to the applicant.	The flfth section of the reasons

explains the ground of rejection of certain evidence sought to be put forward on behalf of the defence and the sixth deals with penalty.

Some parts of the reasons, for example rulings on

evidence, plainly identify themselves as not constituting	or
relating to the acts or omissions relied on and they will	be

ignored in my summary. Further, insofar as the companies

mentioned in the reasons have been given abbreviated names, I

shall use the abbreviations.

Section I1 says that a firm called STRABAG and one

called AIT had formed a joint venture group called ARGE. The

accused was the sole shareholder in AIT, but hls authority to

represent the company under German law was unclear; however,

he was accepted by "the business partners" as having authority. The joint venture's object was the construction of a building project for an insurance company. The partners had a 50% share each in the profit (or loss) of ARGE, but STRABAG was the manager.

The contract between the partners required that involces

be checked by both partners. The accused was to recelve

DN600,OOO under that contract, for "special services rendered

(development etc.	) " and payment	of that sum	had been
effected.

STRABAG was "not interested ... in executlng the

building project as general contractors" so a building

company called HABAU was entrusted with the work. The ARGE's

bank account was with a	b nk called Bad Godesberg Kredltbank
Eingetragene Genossenschaft, ("the Godesberg Bank").	Each

partner gave authorlty to designated persons to slgn "for the

said account" and, as	to AIT, the designated persons included
the accused.
On presentation of HABAU's final account dated March 1985, the insurance company paid ARGE DN224,600, in autumn	2 2
1985. STRABAG made out a crossed cheque In favour of HABAU on behalf of ARGE in the same	sum. and forwarded it to HABAU

asking it to obtain "the second necessary signature from an
authorised person of AIT". The accused received the cheque

from HABAU, but refused to sign it and kept it. ARGE again

wrote, asking the accused to sign the cheque and the accused

replied to STRABAG saying that he had no contractual

relationship with ARGE, that he "had only been authorised by

AIT and was acting under the latter's instructions". HABAU again "asserted its claim with the help of its lawyers"; STRABAG, for a third time, asked that the cheque be

counter-signed, but the accused replied in the same vein as prevlously, adding that he had been told by AIT to release payments only after "the partner's account had been

balanced". One Dietzen, on behalf of STRABAG, spoke to the accused and was told that the claim asserted by AIT against

ARGE was about DM10,OOO.

On 20 December 1985, AIT wrote to the accused enclosing

"signed transfer slips" being DM224,600 payable to HABAU and an adjustment of accounts of DM12,432 in favour of AIT. The accused was asked "to forward the transfer order to" the

Godesberg Bank without delay	and destroy the previous crossed
cheque made out to HABAU.

In the transfer slip in favour of HABAU, its name was entered as payee, together with its account number and the name of its bank.

Three days later, the transfer slip was submltted to the

Godesberg Bank but had been altered with a Tlpp-Ex correctlon

fluid and a typewriter by "either the accused or an assistant

acting under his instructlons". The payee's account number and bank had been altered so that "Wiest and Company by order

of AIT Bonn" became the	payee and the account number and bank
of that company were glven.	The transfer slip was provlded

with a new "value date" namely December 21 1985, the "l"

being replacement of a " 3 " whlch originally appeared.	The
transfer slip was signed by the accused.

The reasons went on:

"Such alterations were nelther known to nor agreed

upon in any way with the Strabag company, and this, as a matter of course, was fully known	to the
accused."

At that time AIT was in liquidation and the llquidator

was named.

Because of the "obvious alterations" the manager of the Mehlem branch of the Godesberg Bank consulted a MK Wassermeyer, a "bank clerk" and one of the bank's directors, and Wassermeyer tried unsuccessfully to contact the accused and STEWBAG. Later, he reached a Mrs Hurig in the AIT office who told him the alterations to the transfer slip had been agreed with by STFABAG and that she had a note of the

conversation.	Stlll dissatisfied, Wassermeyer succeeded In
contacting the appllcant on Saturday, December 28.	He was
told that STFABAG had glven its consent to	the transfer

sllp's being altered. On being asked for wrltten

confirmatlon of that, Wassermeyer was told that the confirmatlon could only be submltted on 6 January, slnce the STRABAG office was unoccupied. Wassermeyer never recelved a

written confirmatlon, but only a note of the conversation

dated December 18 1985, apparently slgned by Mrs HUKig of the

AIT office. It recorded that Dletzen had said that ". . . the money must be wlthdrawn from the account by the end of the

year. If necessary,	Mr Wiest should alter	the transfer order
after all."

Wassermeyer, however, was satisfied by what the accused

told him on the telephone and gave instructions to execute

the transfer order being "guided by the desire" to comply

with a regular customer's request. The money was duly

credited to wiest and Company, on which the accused was	the
only person authorised to	perate. On December 31 1985, the
accused closed the account and	had the funds paid out to him
in cash.

STRABAG had never consented to any assignment of AIT's

claim against ARGE or STRABAG to Wiest and Company. At the

beginning of January 1986, HABAU again claimed payment from

STRABAG and "the diversion of the payment" was discovered.

STRABAG then sued the Godesberg Bank and was awarded damages

of the amount in question, namely DM224,600, plus costs. Before that suit was begun, the accused told the Godesberg Bank that he wanted to "discharge them from possible claims

raised by Strabag or the ARGE". A "corresponding security"

was promised for May 1986. At the beginning of January 1987

DM150,OOO was paid into the account of a certain firm with the Godesberg Bank and transferred as security for claims resulting from the suit of ARGE OK STRABAG agalnst the

Godesberg Bank. For the same purpose, a security of

DM100,OOO was created on real estate in Bonn-Duisdorf for the Godesberg Bank, but the land was not in the accused's name,

so the bank's security remained unreglstered.

On 28 January 1987, Mrs Hurig received a telex from the

accused and members of his family from the Sheraton Hotel,

Melbourne.

Section 111, after setting out the sources used (as

explained above) said that "the accused has not made a

statement of a defence". It went on to mention inqulrles which had been made as to whether AIT was entltled, or the accused could have assumed on reasonable grounds that it was

entltled, to clalm DM224,600 against the ARGE. Evldence as

to that was obtained from an expert, but the question was thought to be irrelevant. There 1 s then further discussion In support of the conclusion that he accused could not have thought that STRABAG had allowed hlm to alter the transfer order.

Section IV commences by asserting summarily that the

accused is liable to prosecution on grounds of fraud, damaging the Godesberg Bank and on the grounds of forgery of a document committed as the actual or indirect perpetrator.

As to the first, the "act of deception is to be seen in"
the fact that, having sent the altered slip, the applicant

told Wassermeyer, contrary to the truth, that the alterations

had been made by agreement with STRABAG.	The clumsiness of
the alteration was "supposed to suggest	the prior arrangement
of the authorised co-signatory".

As a matter of law, even if Wassermeyer had doubts,

after the phone conversation with the accused, his havlng

carried the transactlon out was enough. After the

transaction the bank's assets were reduced by DM224,600,

taking into account any civil law claims, for ~t was obliged

as a matter of law to credit ARGE with DM224,600.

Wassermeyer was grossly neqllqent,	for his conversation wlth
the accused was not enough to verify	the alterations to the
transfer form.

Further, the bank's claim against the accused by reason

of the deception must, as a matter of law, be left out of account, In determlnlng whether It was damaged by that deceptlon.

The accused "carried out the acts constltutlnq the

offence of fraud deliberately" because he knew what he told Wassermeyer on the telephone to be false. He also accepted that the bank would suffer loss for execution of the altered transfer order. The accused "acted wlth the intention of

procuring for hlmself	an unlawful pecuniary advantage",
namely to gain	the sum of DN224,600.

As to the second conclusion, that the accused was

"liable to prosecution for forgery of a document committed by

him as the actual or indirect perpetrator", this view is
based on the "assumption" the transfer slip was altered In

Bernhardstrasse (the accused's resldence). It followed that

the alteration must have been made by him or under his

instructions. He "acted with intention". He had knowledge of the alteration of the transfer slip as results from the telephone conversation he had with the witness, Mr

Wassermeyer. The forgery was "committed for the purpose of practising deceit in legal relations". That was so because he wanted the transfer executed for the benefit of Wiest and Company and that could only be done if the Godesberg Bank was

convinced of the genuineness of the transfer slip.	The fact
that to that slip	had to be added "supplementary verbal
arguments" did not destroy that conclusion, nor did	the fact
that the alterations were obvious.

Further, the accused made use of the document by

forwarding it to the Godesberg Bank, the forgery and the
later use of the document constituting only one offence as a

matter of law.

There followed explanations of the reasons for rejectlon

of two other posslble offences, one involving "disloyalty to the prejudice of STRABAG or the ARGE" and the other Involving fraud to the prejudice of Strabag or the ARGE. Both these were relected for reasons which were, in substance, that neither suffered any loss.

It should be added that in Section VI which, as I have mentioned, concerns punishment, the Court lald emphasis on the "exceptlonal breach of confidence" In the accused's behaviour towards the bank, and said that he "deliberately put the bank
under pressure" by giving as the value date December	21 1985,

maklng it almost impossible for the bank to verify the transfer

order in time during a holiday period.

Consideration of the questlon whether the reasons for judgment I have summarized, read with or without the warrant, are

too diffuse requires some analysis of what was decided by the Full

Court in Linhart v. Elms (above). There,	the warrant alleged
numerous offences.	All three members of the Full Court were of

the view, like Beaumont J., that offences c. - X . , set out in detail at pp.10-13 of the reasons of Fox J, were insufficiently alleged. The method of allegation (in the warrant) was to begin

with a brief general description	of	conduct engaged in over a
period of time and then to	set out	a list of detalls such as tlme,

injured party and so forth.

Fox J. referred to two charges mentloned in the warrant

as having been expressed "in the one statement, almost

conversatlonally" and in a non-technical way. He added:

' l . . . ~t is to be remembered that the document is a

warrant, and not an indictment."

But if statements In a warrant	are sufficient to satisfy the
requirements of para.(A), that does not necessarlly answer	the
questlon whether they also satisfy (C).

Gummow J. said (p.12), in effect, that considerations

arislng from s . 4 suggest:

". .. that the 'act OK omission' is described or

identified in these sub-sections in terms of

conclusions or findlngs of fact as to the essential

elements or integers of an offence, rather than a plethora of particular facts which, if taken

together, may lead to the ultlmate conclusion".

Then at p.13 his Honour said, in effect, that to satisfy para.(c)

a statement must:

".	. . speak with sufficient specificity	o enable the
magistrate to	be satisfied that	the fugitive in

question is liable to be surrendered ..."

He added that the inquiry as to whether a statement was sufficient

"will be a matter for practlcal judgment and assessment . . . ' l

Foster J. sald at p.9 that:

onus upon the requesting state to produce clear	' I . . . ss (C) should be read as placing a definite
allegations of fact to support the basic proposltion that on those facts or their equlvalent, the accused would have committed an offence under Australian law in the relevant part of Australia."

At p.11, he expressed the view that para.(C) required, in the case before him, that:

"precise allegations of the 'manner and means' of

the making of the baslc fraudulent representations

be provided.''

How strictly should one construe the requirements of

para.(C)? The applicant relied upon views recently expressed by

the High Court as to a statute having a rather similar purpose.

In - R. v. Bolton: Ex parte: Beane (1987) 70 A.L.R. 2 2 5 , Beane, who

was alleged to have deserted or absented hlmself without leave

from the U.S. Marine Corps, was	sought to	be apprehended by United
...

States authorities by use of the procedure set out in a

Commonwealth statute. Two members of the High Court, Brennan J.

and Deane J., strongly emphasised that in construing the statute

one must have regard to its effect upon the liberty of a person

lawfully resident in this country. There is, on the other hand, authority in favour of the view that extradition treaties are not

to be construed in a way which would "hinder the working and

narrow the operation of most salutary international arrangements"

- per Lord Bridge of Harwich in The Government of Belgium v.

Postlethwaite [l9871 3 W.L.R. 365 at 3 8 3 . That case concerned the

effect of a treaty between the United Kingdom and Belgium, glven

effect, of course, under domestic legislation. Article V of the

treaty sald that if, within a certain time, "sufflcient evidence

for the extraditlon shall not have been presented, the person

arrested shall be set at llberty". That seems unequivocal enough. The people whose fate was consldered in the case were held disentitled to the benefit of Artlcle V where the necessary evidence had been presented only in the sense that statements had been sent to the Court; they had neither been tendered nor admltted and were apparently inadmissible. This generous construction of the notion of presenting evidence contrasts wlth

the spirit of the remarks to which I have referred, made in -	R .	v.
Bolton.

I would add that in Zoeller v. The Federal Republic of

Germany	(unreported,	2 2 march 1988) Sheppard J., at p.33,
deprecated overzealousness	in	finding deficiencies in material

sought to be used under the legislation here in question "which is not strictly in conformity with the Act or which is inelegant or

inappropriate". He also, at p.51, spoke without disapproval of

the presence In the material of allegations not "necessarily ... relevant to the guilt of the applicant, but ... allegations which

need to be made and understood for completeness". The ready

acceptance by his Honour of the notion that a statement for	the
purposes of (C) might be contained in "the request,	the warrant,

or in some other document" (p.45) and the acceptance of a similar construction by the Full Court In Linhart v. Elms (above) tend in the same direction. In my view, although the Court is not here dealing with a treaty made with the Federal Republic, the making of the regulatlons shows that that nation enforces extradltlon to

Australia (see s.10(4)), and no excesslvely narrow or pedantic

approach appears on the authorities, to be called for.

In my opinion, the warrant itself is, at least, all but sufficient for the purposes of para.(C). I say "all but sufficient" because there 1s room for argument as to whether or not It sufflciently clearly alleges the necessary state of mlnd,

namely actual fraudulence. In my opinion, the references to

"unlawful pecuniary advantage", "false pretences", "practlsing

deceit" and simllar expressions in	the warrant makes its purport
clear enough, and in arrlvlng at that conclusion I am assisted by
the views of the majority of the Full Court in Linhart v . __	Elms
(Gummow J. dlssenting) as to the first charge considered	in their
Honours' reasons.

If the conclusion just expressed is incorrect, however,

the reasons for ~udgment	of the Local Court make the presence of
the necessary mental	element, namely a fraudulent intention, amply

clear. While the force of the argument hat he second

respondent's decision was not valid because	the reasons contain
too much detail and extraneous materlal must	be conceded, I have

come to the conclusion that that argument must fail. There is

nothing in para.(C) to suggest that a statement, otherwise

adequate, is vitiated by	the presence of additional informatlon,
and I am of opinion that the documents produced were rightly	held

by the magistrate to comply with requirements of para.(C). If it matters, I am satisfied that the inclusion of the extra materlal put the appllcant under no real disadvantage.

The second point taken on behalf of the applicant was that the second respondent erred In declining to allow the applicant to adduce certain evidence. Section 17(6A) reads as follows:

"A person referred to in paragraph (6) (b) is not

entitled to adduce, and a Magistrate is not entitled to receive, evldence to controvert an allegation that the person has committed an act or omlssion In respect of whlch the surrender of the person 1 s requested."

In argument for the second respondent, counsel for the present

applicant made it clear that the evidence sought to be adduced

related to the state of mind of the applicant. What appears to be

a fair sample	of the discussion is contained	in the following
statement:

"Now, In the present case there, the fugitive isn't
able to say I spoke to the man, all he is able to
say is that he was told by his secretary certain

things and that he honourably and honestly relied

upon. Now that is claim a of right and

explanation."

It is my opinion that such evidence falls within the

prohibl tion in s.l7(6A). In SI lbstance it wou ,Id controvert the

whole basis of the case sought o be made, namely fraud. Counsel

for the applicant argued that the expression "an allegation that the person has committed an act or omission" in s.l7(6AI cannot Include an allegation as to state of mind. In my oplnion that is not so; although in some contexts the scope of statements as to acts o r omissions constituting an offence might be so confined, here the Intention is that the question of quilt or innocence shall not be lltigated before the magistrate. In my opinion, a

statement such as that, for example, a deslgnated person

fraudulently carried out specifled actions	is a statement wlthin
para.(C) and also "an allegatlon	that the person has committed an
act" within s.l7(6A).

The third point taken, which was not pressed, was that

the proceedlngs before the second respondent constituted an abuse

of process, because	the appllcant had previously been arrested	In
respect of the same matter.	In substance, that contention	of the

applicant was dealt wlth in a hearing before Davies J. in which

his Honour refused to restrain the extradition proceedings. I

respectfully agree with	the concluslon his Honour then came to	(27
May 1988, unreported).

It should be added that the appllcant relled on the

Admlnistrative Decisions	(Judicial Review) Act	only as a basis for
adducing evidence	of the kind discussed	above, a course which

.

. 25.

!

cannot be taken in a review under s.18 of the Extradltlon (Foreign

States) Act. It is unnecessary to deal separately with the

application insofar as it was based on the former statute.

In the result, I am satisfied that the decision of the

second respondent was valid and that decision will be confirmed.

1 certify that this and	t I leJ4 preceding
pages are d truz -OF\ of the reasons	f o r
judgrreut hcreln of His Honour
Mr. Justice Ptncus

‘Associate

Dated d 8 &I, tY?f