Wiest v The Director of Public Prosecutions & Anor; Wiest v Director of Public Prosecutions

[1989] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 1989

B e t w e e n -

EUGEN ALEXANDER WIEST

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS

First Respondent

THE FEDERAL REPUBLIC OF

GERMANY

Second Respondent

Office of the Registry

Sydney No S8 of 1989

B e t w e e n -

EUGEN ALEXANDER WIEST

Applicant

and

THE DIRECTOR OF PUBLIC

Wiest

PROSECUTIONS

First Respondent

RICHARD PETER MISZALSKI

Second Respondent

THE FEDERAL REPUBLIC OF

GERMANY

Third Respondent

Applications for special

leave to appeal

C~Tl/1/PLC 1 17/2/89

BRENNAN J GAUDRON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 FEBRUARY 1989, AT 9.59 AM

Copyright in the High Court of Australia

MR R.A. CONTI, QC:  In those matters, if it please the

Court, I appear with MR A.s. MARTIN for the

applicant. (instructed by Sly and Weigall)

MR J. SPIGELMAN, QC:  If the Court pleases, in matter

No S7 I appear for the first and second

respondents and in matter No S8 I appear for the

first and third respondents, with my learned friend

MRS. CRAWSHAW. (instructed by the Director

of Public Prosecutions)

BRENNAN J:  Before you commence, Mr Conti, the Registrar

has been adivsed by Mr Roberts, Crown Solicitor,

that Mr Richard Peter Miszalski, the second

respondent in matter No S8 of 1989 does not

intend to appear on the hearing of the application

for special leave to appeal but submits to such

orders as the Court may make, except as to costs.

Yes, Mr Conti.

MR CONTI: 

There are two applications before the Court, however, in proceedings in matter No S7 of 1989

the applicant will not proceed with the intention

to appeal, not pursue the appeal, so that the

special leave application will be confined to

matter No S8 of 1989.

BRENNAN J:  We should make an order formally dismissing

the application for special leave in matter

No S7.

MR CONTI:	Thank you.
BRENNAN J:	It is so ordered.

ClTl/2/HS 2 17/2/89

Wiest	(Continued on page 2A)
MR CONTI:	Your Honour, we have taken the course of

reducing the argument on this application to

writing, so I think it might assist my articulation

of it and hopefully your understanding of the

points that are involved. I wonder if I could

hand up three copies to the Court.

BRENNAN J:	Thank you, Mr Conti.
MR CONTI:	Whilst they are being handed to you, we are

obliged to seek leave under Order 60 rule 4(1).

We were six days out of time in the application.

BRENNAN J:  We need not delay you on that, Mr Conti.

The time will be extended.

MR CONTI:  Thank you. Your Honours, in a nutshell, the

matter of public importance which we would seek

to pursue for the purposes of this application

relates in summary to the section 4(3) point,

and that point alone.

(Continued on page 3)

ClTl/3/HS 2A 17/2/89

.

Wiest (Continued on page 3)

MR CONTI (continuing): If leave was granted then there would

be additional grounds of appeal added in relation

to the efficacy or otherwise of the material before
the magistrate in accordance with the formal

requirements of section 17(6) but we concede that

a mere comparison of the formal requirements with

the materials that were put before the magistrate

do not themselves raise any question of general

importance.

Your Honours, the question that is involved in the section 4(3) point, we submit, does raise

matters of very considerable and fundamental

importance and it is on that point that

Mr Justice Burchett differed with the majority

below. May I say to you at the outset that in

1988 the Parliament enacted a new EXTRADITION ACT

of 1988 and, as I understand it that Act takes

effect on 1 December 1988. Your Honours, in the

light of the equivalent to section 4(3) in the new

legislation, namely, section 10(1) and the

preservation in the new Act of the dichotomy of

accused and convicted persons, the question of

general importance which arises on the existing

legislation will carry through to the 1988 legislation.

Your Honours, the 1966 legislation, we would

observe, the threshold does lack a certain degree of clarity, if not specificicy, so we would submit,

because it makes a number of assumptions based on

the general law as it had developed in England up
until the enactment of this legislation in 1966.

Until 1966 the statute law in the Commonwealth was

governed by the 1903 EXTRADITION ACT which simply

incorporated the 1870 United Kingdom model and it

provided that the powers and authorities which had the Commonwealth.

been vested in the Secretary of State of the United

So that the cases which developed and the

approach taken by the courts right through to the

House of Lords under the United Kingdan precursor

have some particular significance, we would submit,

to the context of the drafting of this legislation.

May we start then by taking you to the legislation

and if you would, at the same time, take hold of

volume II of the application book so that I can

indicate to you by reference to the legislation the

steps that took place in this particular matter.

(Continued on page 4)

C1T2/l/BR	3	17/2/89
Wiest

BRENNAN J:  Mr Conti, just so that I can follow where

we are going, I notice that in paragraph l(a)

you say that:

The meaning and scope of application

of the words "convicted in the absence

of the person"

is the lead point, as it were, in your application.

But yet the proceedings were conducted on the

basis that the applicant was convicted in his

absence.

MR CONTI:  It is not the lead point in the sense of the

most important. The most important is what

we submit is the overriding effect of
section 4(3). But, as it were, to get into
section 4(3) there is this expression "convicted

in absehce" and Mr Justice Burchett saw it

necessary to deal with that point, as it were,

at the conclusion of his discussion of the

section 4(3) opinion which he expressed and

seems to have regarded it necessary to do so.
Whilst I agree that paragraph 2 of my submissions
is ambivalent in that regard, I am not really
entirely sure whether we put that forward now,
or at the appeal, or at all. I was proposing
towards the end of the discussion of the

section 4(3) point in terms of its overriding

effect to come back to that matter. But certainly

I do not put paragraph (a), as it were, as the

lead point arising for consideration. But, I

think probably it may well. A lot will also

depend also on what my learned friend has to say.

BRENNAN J: But how does the problem arise under section 4(3),

if the hypothesis on which the proceedings were

conducted is not a valid hypothesis?

MR CONTI:  Your Honour, we would concede that that should

be the primary position that we should take and

we should ask that question ourselves but we

are concerned in the way in which the judgments

dealt with the matter - all three members of

the court actually decided the point, as it were.

We are concerned that that situation will one

way or another arise and we will have to consider

fall-back positions to answer - - -

BRENNAN J:  The problem from the point of view of special

leave though is to see whether this is

a suitable vehicle for considering the propositions

that you wish to agitate.

MR CONTI: It could arise in that respect.

CIT3/l/JM	4	17/2/89
Wiest

BRENNAN J: Speaking for myself, looking at the papers, the

problem seems to be that the square peg of the

material that was laid before the magistrate on

the hypothesis that it was a case that fell within

section 4(3) may more appropriately have fitted into

another hole, namely, the paragraph (ii) hole of 17(6) (a).

MR CONTI:  On viewing material only in volume II of the

application book, Your Honour would be justified

in forming that preliminary view but as

Mr Justice Burchett said, we really did not have

evidence on the point and the Court did not set

about determining this status question as a discrete

evidentiary point and there is, as we have pointed

out in paragraph (2), some evidence which was before

the Court albeit on the bail application,that is

before the Federal Court,which would suggest that

the basis upon which the German authorities were

asserting that the applicant left the country may

not necessarily have been valid. Mr Grant has dealt

with that in his affidavit in support of the application

for special leave where he has incorporated some material

which was in the bail application which would tend to
neutralize what has emanated from the German authorities
which I will take you to in a moment.

BRENNAN J: Well, you develop your argument in whatever way you

see appropriate but you might bear that consideration

in mind.

MR CONTI: Yes, I will, thank you, Your Honour. If I could

then start with the definition provisions of the

1966 Act and the first one, of course, is the

definition of "fugitive" which embraces persons

accused and persons convicted.

The next provisions are subsections (lA) and (lB)

which have been described in the cases as the dual

criminality provisions where they seek to bring into

tandem for the purpose of extradition, the basic

criteria for an extradictable offence, and were we

pursuing on this leave application the, what I might cal 1

the paragraph (c) point of section 17(6), I would have

taken you to those in more detail.	Subsection ( 3)
then appears on the same page:

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 -

ClT4/l/SH	5	17/2/89
Wiest

J:,,!R CONTI (continuing):  The words "whether or not the

conviction is a final conviction" are words that are

inserted for the first time into section 4(3). The

1973 amendment merely referred to a person convicted

in his absence under a final conviction. And

"final conviction", of course, is not a concept really

known to the common law except in so far as the

common law has sought to describe the finality or
otherwise of criminal convictions in other European

countries and hence the historical reason why that

concept has been engrafted into our extradition

legislation. Section 12 is the next important

section. It is, as it were, the pivotal provision of

the Act. It provides that:

Where this Act applies in relation to a

foreign state, every fugitive from that state

is liable, subject to this Act and to any

limitations, conditions, exceptions or

qualifications to which the application of

this Act in relation to that state is subject - and pausing there, those "limitations, conditions,

exceptions or qualifications" will normally be

imposed either in the context of a treaty or, as in

the case of Germany, in a regulation published under

the Act. There is no treaty with Germany, but it has

been brought into this extradition relationship by
virtue of the regulation-making power which we
notice later. And going back to the second line

"is liable" and then jump down to the fourth line:

to be apprehended and surrendered to that

state as provided by this Act.

Then section 13 deals with restrictions on the surrender

of persons to foreign states and these provisions, as

you can see in subsection (1) refer to restrictions
where the offences were of a "political character" or

where if the person is surrendered the facts

constituting the offence for which he is accused or

the offence for which he has been convicted, would

be used, in effect, for a collateral purpose by

trying him in relation to other matters.

(Continued on page 7)

ClTS/1/SR	6	17/2/89
Wiest

MR CONTI (continuing): Section 13 is directed to possible

abuse on extradition; political offences or,
as it were, as to collateral purposes for getting

him out of the country to try him, really, for

other matters and not the offences the subject

of the requisition.

Then the same theme is taken up in

section 14 and section 15 is, on our argument

of critical importance. Subsection (1) provides:

Subject to sub-section (2), where a

requisition for the surrender of a fugitive

who is, or is suspected of being, in or

on the way to Australia -

and there one has the starting point for, as

it were, the condition for the Attorney-General

exercising the discretion to issue a warrant

for apprehension in the terms therein set out.

"Requisition" is not defined but, as observed

by Mr Justice Burchett, "requisition" has an

accepted international meaning in the law of

extradition. It is the point at which the requesting

country sets in motion the whole procedure.

As I say, "requisition" is not here defined but

it would be our submission that unless the requisition

is directed correctly to the purpose of surrender
or extradition and addresses the correct purpose

then the procedures commencing with section 15 should not be set in train and should not have

been set in train in this case because it is

fundamental to the law of extradition that a

man is requested be surrendered either for retrial

or trial - I use "retrial" in the sense he has

been convicted in his absence - or for sentence.

If he is requisitioned as an accused person

but it is merely to serve a sentence and it is

not for retrial then the requisition is misconceived

and the proceedings should not have been set

in train and the requisition founders. That,

of course, has been the approach that has been

taken right through to the House of Lords in
the English cases which I have collected at the

foot of page 4 of our written submissions.

That assumption, we submit, is at the heart

of the legislation. So that where section 4(3)

speaks about, on the third line:

for the purposes of this Act -

it has an overriding effect in that it addresses

the very purpose of the dichotomy between accused

and convicted persons, namely that they are to

be surrendered or extradited on a status basis and

ClT6/l/SDL	7	17/2/89
Wiest

for a purpose: the status basis being accused or

convicted and, correspondingly, the purpose being for
retrial in the case of conviction and absence; trial

if merely accused; sentenced if convicted otherwise

than in absence. That is the focal point-the trigger -

for the operation of the Act and that was the approach

Mr Justice Burchett took and we would seek to embrace

that approach.

Now, the requisition in this particular matter

appears at page 199 and it refers in the third line -

that is at 199 of volume II - to enclosing -

a warrant of arrest -

_w h i-c h I w i 11 show yo u sh or t 1 y -

in a judgement by the local court of Bonn - and then,at line 19,it proceeds -

The German Government requests the extradition

of Mr Wiest from Australia via Malaysia and the United Arab Emirates for the purpose of

prosecution.

And the~ over the page,on page 200, line 24:

Furthermore it is advised that the extradition of Mr Wiest is now sought for the execution of

a prison sentence of one year and three months

after an appeal of the above-named to the

Higher Regional Court of Cologne has failed and

the sentence of the Local Court of Bonn has

become final and enforcable by execution.

So that what we are saying there is, look, he is

being requested for a prosecution but if the appeal to the court in Cologne of the accused is dismissed

then the requisition is, in effect, merely for

surrender. And, of course, we know that the appeal to

the higher court in Cologne of the applicant was

dismissed. It was heard while the applicant was in

Long Bay here in Australia.

BRENNAN J:  It had been dismissed at the time of this

requis_ition?

MR CONTI:  No, Your Honour, it had not. I am sorry, Mr Martin

has informed me it had been dealt with at the time of

this requisition, I am sorry.

ClT7/l/BR	8	17/2/89
Wiest

BRENNAN J:  The next two lines seem to indicate that.

MR CONTI: That is so, Your Honour is perfectly correct.

BRENNAN J: Is the proposition this: that a requisition

in terms which appear at page 200, lines 24 to 28,

is an inappropriate requisition in a case which

falls within section 4(3)? Is that the point?

MR CONTI:	That is the proposition; that is the point.
BRENNAN J:	And the hypothesis on which the proceedings

were conducted in the courts below is that the

case did fall within section 4(3)?

MR CONTI:	Yes.
BRENNAN J:	But that is a hypothesis which did not find

much favour with the majority. Well now, ought

we then to grant special leave to consider
the sufficiency of a requisition of this kind
on a hypothesis which appears to have been
falsified in the tentative view,at least,of the

majority?

MR CONTI:  Your Honours, we submit that you should,

and it will be necessary to look at the

question in that event of the justification for

the majority taking that particular view in
the light of what we wish to further submit.

But assuming that you accept that the question

as to whether he was convicted in his absence

was one which should be regarded as applicable

for the purpose of the appeal, as indeed seems to proceed on the same assumption that the
to have been the view that was taken by the

appeal proceeded before the Full Federal Court

then, we would submit that would be, with

respect, the just way to deal with the matter

so far as the applicant is concerned because

if the appeal had proceeded before the Federal

Court on any other basis, in other words, if the court had said, "We look at this

requisition and take the view that the applicant

is a convicted person and that this is a

requisition to extradite for sentence only, then

it would have been open - if that was the view

that the court took and if that was the view

that was pressed, then it would have been open

for the applicant then to have pursued the question

and ventilated the question on a wider basis below

as to whether or not the court was justified in

accepting the contention of the German authorities

that the applicant had left the country for the

purpose of absenting himself from the continued

CIT8/l/JM	9	17/2/89
Wiest

proceedings and in circumstance which would

constitute a waiver.

BRENNAN J:  I can understand that there may be some

substance in that view, but from the point of

view of special leave, the proposition, as I

understand it that you are advancing,Mr Conti,

is that this Court should pass upon the

question of the sufficiency of a particular

document, namely the requisition, on the

hyposthesis that the case is one which falls

within section 4(3), that being a hypothesis

which did not commend itself at least to the

majority of those in the court below.

MR CONTI:	Yes.
BRENNAN J:	So that as far as this Court is concerned

we would either have to examine de novo

the question of whether the case did fall
within section 4(3), a problem which was
never adverted to in the courts below, or

deal with it on a hypothesis tha4 looking

at the judgments below, was probably false.

That is a very hypothetical judgment for this

Court to be asked to return.

(Continued on page 11)

CIT8/2/JM	10	17/2/89
Wiest

MR CONTI:  Yes, but we would want to persuade you - and that

is precisely why at the culmination of these submissions

we have gone on to deal with the question of the

characterization of the applicant to meet this

very matter, in case it was a matter of concern

on special leave.

BRENNAN J:  But did you not get a certain advantage out of

that hypothesis in the courts below? Namely, in
the courts below you were seeking the protection of

the requirements of 17(6)(a)(i) rather than being

limited to the problems of 17(6)(a)(ii) and, having

failed to succeed in the protection that you sought,

the hypothesis now is one which is at the heart of

the present application which focuses on the

requisition.

MR CONTI:  Your Honour, that is true. We found in arguments

on 17(6)(a)(i) below, that is correct and we do not

pursue those any more. Indeed, as I understand the

history of the matter, this particular 4(3) point

was a matter which troubled the court and resulted

in - although it was not fully argued before the
court on during the hearing - it troubled the court

to the extent that the counsel were asked to attend

chambers. The point was ventilated and counsel were

asked to write written submissions which they did on

this particular point and in the upshot the point
which, it must be said, with respect, is very

critical in terms of the operation of this legislation.·

If I may pause there, if section 4(3) is merely material

for the purpose of 17 ( 6) , and has just merely this documentary

forr,1.ality role rather than the overidding effect

which. we contend, that must be per sea matter of

public importance.

The matter having proceeded that way, we would

- perhaps we could be so bold as to say ,surely it would
be unjust if we are now precluded from seeking to

have this Court prefer the view of Mr Justice Burchett

rather than the majority merely because the Crown had

proceeded on a certain hypothesis and that certain

hypothesis was one that found favour with two, but not one,of the members of the court but it was not an hypothesis. It was, ~sit were, ventilated with

evidence and so on.

If you are satisfied that the way in which the proceedings have evolved, it would be wrong for -

as Mr Justice Sheppard seemed to suggest in his

judgment - as it were, the respondents to change

course midstream, because this was the basis upon

which they presented the case, and surely it would then be

right for us on that basis to pursue a matter of

general importance as a special leave point because,

if we succeed on that point, then it is 1 as it were,

ClT9/l/SH	11	17/2/89
Wiest

that point alone, we would respectfully submit, that
the Court would on appeal take the view, "Well,

whether or not we have a private opinion on a

limited amount of material, this man was convicted

in his absence or not. Whether we have that private

view, the case has proceeded on the other basis and we

will deal with the 4(3) point untroubled by what might

have been the outcome had there been a more thorough

factual investigation into the question".

BRENNAN J:	I understand the way you put it.
MR CONTI:	Your Honours, then, the judgment materials which

I will not take you to appear from pages 202 to 236 and what Mr Justice Gummow and Mr Justice Sheppard

held below, we would observe merely in passing, was

that the warrant, which I am about to take you to

now, was sufficient compliance with the requirements

of 17(6)(a)(i).

(Continued on page 13)

ClT9/2/SH 12 17/2/89

Wiest

MR CONTI (continuing):  But if it was not quite sufficient

then, supplement with the judgment and that was enough

to satisfy the formal requirements. The warrant of

arrest appears at page 241 and you will see that
it is issued on 11 February 1987, which would be

before the appeal to the Cologne court and some

considerable time before the requisition of

29 April 1988 which I showed you at page 201. And

the warrant on the second line of the body of the

document refers to:

the accused real es tatc dealer ...... -:.Jies t .... .

is charged with having, late in December 1985

at Bonn, coicidently -

and so on. Then at lines 23 and 24 on page 242:

He is strongly suspected of having committed

this criminal act -

bear in mind the appeal has not yet been decided -

because he is considerably incriminated by

both documentary evidence and evidence of

witnesses. By the judgment of the Bonn .....

court ...... dated February 11, 1987, which has

not yet become final, he was sentenced to

imprisonment for a term of one year and

3 months.

At page 250, and I will not ask you to spend any

time, this document is the certified copy of the

applicable German civil law statutes dealing with the

offences. Then before I take you to what is on

page 253, the Attorney-General's notice which post-dates

what is on page 254 - I will take you to page 254

first if I may, because historically one or two things

could take place and section 15 accommodates both.

The relevant organs of government could go to the

magistrate and get the warrant of apprehension first,

under section 16 - which I am yet to take you to,

and then go to the Attorney-General, which they did here, and the Attorney-General would then act under

section lS(l)(b). In other words, he would act after

the warrant of apprehension had been issued. Or

alternatively the procedure could have been followed,

which was not followed in this case, nothing turns

on it. The Attorney-General could have issued his

notice first and then under section lS(l)(a) the

magistrate could have issued the warrant. I only

say it by way of explanation because you may wonder

why the warrant on page 254 is dated 27 April 1988,

but the Attorney-General's notice is dated

1 May 1988. Now you will see on page 254, the warrant

for apprehension, i.n preamble (a) the fifth line

uses the word "accused". So that the view has been

ClTl0/1/SR	13	17/2/89
Wiest

taken from the outset in Australia that section 4(3)

applies. On page 253, preamble (a), the sixth line,

again the word "accused". Then when the magistrate's

warrant of connnittal was issued, following the

hearing, which was the second hearing as you may recall

from reading the application book, the second line,

paragraph (a) refers again to Mr Wie.st being accused.

So that you can see there that, in summary, the

procedures of sections 15, 16, and 17, were indeed

conduct upon the basis that section 4(3) applied.

(Continued on page 15)

ClTl0/2/SR	14	17/2/89
Wiest

MR CONTI (continuing):  I take you briefly to section 17 and

in particular subsection (6).

BRENNAN J:  Can I just interrupt you for a moment to ask,

is there a prescribed form for a notice under 15(l)(b)?

MR CONTI:  Yes, I think there is to the regulations. Can I

answer that in a moment, Your Honour.

BRENNAN J: Perhaps your junior could have a look at it.

MR CONTI:  Yes, Your Honour, there is. It is called form 5

to subregulation 15(2) and the form, as do all of

the forms, have printed:

accused/*has been convicted -

and then a note -

*Omit if inapplicable.

In other words, the forms - I do have the form for

the warrant for surrender which I do not propose to get any assistance on the interpretation of the Act from the form, but purely as a matter of illustration

if I could just show you form 13 which again,

consistently with the earlier forms, in a preamble (a)

uses the words:

accused/*has been convicted -

so that the forms have never really accommodated -

and form 13 is the one that puts the extradited person

on the aeroplane. Your Honours, underlying the

discussions in the speeches in the House of Lords in

the judgment in England is the concept that the person

who was extradited or surrendered is accorded a

particular status. He is either a person who is

convicted and sentenced and he is going back to be

punished or else he is a person that is going to be

tried or retried and consistent with that is the

expression of the courts that he is surrendered for
either one of those purposeR.	It follows

reasonably and logically that the requesting State

should requisition for the correct purpose because it

could result, of course, in a miscarriage of the

intention of the procedure if the requisitioning

government should requisition for the wrong purpose

and the government responding should extradite for the

correct purpose.

If there is no consistency between the two

then where is, as it were, the comity or the

reciprocity inherent in the whole notion of extradition

that what the responding party understands as being

done is in fact what the requisitioning party intends

should be done and if there is not a perfect coincidence

ClTll/1/BR	15	17/2/89
Wiest

between requisition and response then, of course, there

is a great capacity for, or great potential for

injustice or oppression et cetera of the extradited

person. And that is why Mr Justice Burchett concluded

that the requisition in the present case just did not

support, to use his expression, the section 15 notice

of the Attorney-General.

The Attorney-General, as it were, got it right

on page 255 when he said the man was accused but he

had been requisitioned for sentence.

~cHUGH J:  But that has got to be right, has not it, because

section 17(6) has a dichotomy. You are either an

accused person or you are a convicted person.

MR CONTI: Precisely, yes.

McHUGH J: If you are a convicted person then the requisition

must be - there must be produced	certain material
and authenticated document.	If you are an accused
person you must produce different material.	Now,

all 4(3) does, does it not, is simply to say for

the purposes of the Act you treat a person who has

been convicted in his absence as an accused person

and he is deemed not to have been convicted.

(Continued on page 17)

ClTll/2/BR	16	17/2/89
Wiest

MR CONTI:  Precisely, but, Your Honou~ the starting

point - the Australian authority has got it right.

They used the correct expression, but where the thing

has gone astray is that the requisition was for the

purpose of sentence. They have dealt with the

matter, we would say as a matter of - if one

understands the historical evolution of this

legislation, what the Australian Government has

done by treating him to deem to be accused is

in effect saying, "We are send in[', this man back to

you for re~rial. He's accused, but he is going

back to you for retrail because he is an accused
person, but 1,ou have requisitioned his surrender
for sentence', and so the requisition, as

His Honour found, just does not support these documents. What the government should have done

is said, "We don't respond to your requisition at

all because you are asking for his sentence. We

read him as having been convicted in his absence.

If he's been convicted in his absence, then your

requisition must be for retrial because that is

inherent - - -

GAUDRON J:  But does the Act have anything to say about a

requisition really -

MR CONTI:	No, it does not.
GAUDRON J:	- - - other than to make it the starting point?
MR CONTI:	Your Honour that is the difficulty.
GAUDRON J:	Well why would you read section 4(3) as

applying to the requisition?

MR CONTI:  For a number of reasons, Your Honours, and that

is why we really have to develop the historical

arguments. It is not an easy answer. If one was
to take the short-cut ready answer on the face of

the statute without regard to the history and the

evolution of the expressions and the underlying

purpose of it all, one would take the approach of the majority and say, "I only see a significance put on the dichotomy in section 6. It's merely a

formality thing", and that is the end of the matter.

And so on that basis one really does have, one

might have thought, the - I hes it ate to use the

word "absurd", although that was the expression

used by His Honour Mr Justice Burchett - of looking

at formalities in subparagraph (1) which one might

say were tailored for a person to face trial or

retrial; one looks at those formalities, but he

has been convicted and he is going back for

sentence.

Why does one not just look at the formalities

of subparagraph (2)? There is no point in

section 4(3) one might have thought really at all,

ClT12/l/HS	17	17/2/89
Wiest

certainly in terms of its interrelationship

with the formalities. He has been convicted.

Why not just have the conviction then?He is going

back for sentence, and that is why one really is

pressed in - - -

McHUGH J:  On that hypothesis, if he was convicted in his

absence you could never extradite him.

MR CONTI:  Not unless there was going to be a retrail

because, Your Honour, the starting point of the

historical exegesis which has been undertaken by

Mr Justice Burchett is that in England fugitives

were only extradited for trial. They were never

extradited for sentence. Then, as was noticed

in COPPIN's case, which we have reproduced in our

written submission, in France

there was this concept of conviction for contumacy -

and I do not use the French or the Latin expression -

this conviction for contumacy, to use the

Anglicized translation - where a person is

convicted but if, as it were, he re-presents
himself, then he is entitled by law to a retrail.

And then it subsequently emerged in a case

involving French fugitives, there were two tiers

of conviction for criminal offences in France.

One had, as it were, the first tier called

conviction for contumacy where if you re-presented
yourself when you were convicted in your absence,

for whatever reason, so the cases show - in fact

there was one case where it was clear that the

fugitive deliberately absented himself to avoid

the proceedings - but if you re-presented yourself

you are entitled to a retrail, but then there was

a final form of conviction which is also spoken

about in French law by the experts in French law

when they gave evidence in these matters which was

not a conviction for contumacy and if he re-presented

himself he was going in for sentence only.

(Continued on page 19)

C1Tl2/2/HS	18	17/2/89
Wiest

MR CONTI (continuing):  What the authority collected at. the

foot of page 3 of our written submission was

addressing in 1866, before the 1870 legislation

in England, which was adopted in Australia as

I have indicated, what the Lord Chancellor

said there was that when he goes back he is

not a person condemned; he is a person accused

because he gets a retrial. Your Honours, as

we have said in paragraph (',), why was all t.his because,

if I may refer you to the top of the page 3,

section 4(3) reflects the essential principle

of t.he criminal law that the trial at least of an
indictable offence has to be conducted in the

presence of the accused, the trial meaning the

whole of the proceedings including the

sentence, LAWRENCE V R.

Your Honour, now it is true, as I think

McHARDIE'S case referred to by Mr Justice Gummow

indicates and was so held by the Court of Criminal

Appeal in New South Wales, a person can waive

the right to be present or the entitlement to

be present at his trial right through to his

conviction and sentence and it then becomes a

matter for the discretion of the court as to

whether because of his absence the trial is

aborted or not. McHARDIE' s case was a case where there were conspirators and the view was taken,

"Well, we are not going to abort the trial

because the other conspirator is here. We think

in the public interest and the exercise of our

descretion, we should proceed and convict him,

if he is going to be convicted, along with his

co-conspirator." So, it is a matter for the

discretion of the court.

It is a misnomer in many instances to talk

about waiver; the question is really, according
to the common law in New South Wales, the

court may as a matter of discretion regard the

conviction in the absence of the person as

something which can be lawfully imposed as a

matter of discretion.

McHUGH J:  Mr Conti, if in this case the Federal Republic

of Germany had simply said, "We want you to

surrender this man", would the requisition have

been a valid requisition?

MR CONTI:  No, Your Honour. It must be a requisition,

as I will endeavour to show you from the case,

it must be a requisition for - it must indicate

the status of the man to be extradited and/or the purpose of his requisition, because it is

fundamental to the general law which was engrafted

upon the 1870 English legislation and which can

be assumed to have been fundamental to the drafting

CIT13/l/JM	19	17/2/89
Wiest

of the 1966 legislation here, t~e extradition

procedure was predicated upon a requsition

for a purpose; the person had a particular

status.

McHUGH J:  But does not 17(6) exhaust the material that

is required in support of an extradition?

MR CONTI:  Your Honou~ it exhausts the evidentiary

documents in terms of what must be before the
migistrate, but totally fundamental before the

matter even has to come to the 1D3.gistrate,

at the point of Attorney-General, at section 15,

long before section 17.

BRENNAN J:  Mr Conti, at the end of the day the Federal

Republic of Germany has ended up with an order

for extradition with which they are content

but on your submission it is an order for

extradition for retrial.

MR CONTI:	That is so.
BRENNAN J:	Now, that is the result of the proceedings

which,by common consen~ were conducted on the

footing that it was a case of a section 4(3)

application. Well now, your proposition is, as

I understand it, that that should not be

right because looking at what the requisition is,

this was a requisition for sentence, and so the
hypothesis on which we agreed was wrong and

therefore the order that was made at the end of the day was wrong and we should therefore grant

special leave to set right that which is the outcome

of a concession made by both parties which you

say, looking at the requisition, was false?

(Continued on page 21)

CIT13/2/JM	20	17/2/89
Wiest
MR CONTI:	No, Your Honour.	No, the concession which was made

was that my client was an accused person, was

convicted in his absence. There was never any

concession that the requisition expressly -

but, making that concession - I am sorry, I will

put it this way - - -

BRENNAN J:  I am not suggesting that there was a concession

about the requisition.

MR CONTI:  No, but making that concession does not implicitly

cure the invalid requisition because the invalid

requisition in the first place, as I said, should

have expressed the correct purpose. Now, that is

fatal in CARBON V WATERFIELD, as I will take you

to in a moment, if one, as it were, extradites on

a particular basis and the basis, in effect, has

become misconceived because the basis upon which he

is now being extradited is for retrial. He is an

accused person and he is being extradited for retrial.

Now, CARBON V WATERFIELD would say that, in that

particular event, the magistrate's decision must

be set aside and whilst Mr Justice Salmon in

delivering the judgment of the three members of the Court in a habeus corpus application in that

matter said, "Well, it is not a very meritorious

result but this is the way we are going to ensure

that these extradition procedures are faithfully

observed. That is going to be the result".

BRENNAN J:  Could you direct me to the passage in the trial

judge's judgment where that problem was agitated?

MR CONTI: In the trial judge's - - -

BRENNAN J: Trial judge.

MR CONTI:  No, you see, this point was never vent~lated before

Mr Justice Pincus.

BRENNAN J: Well, then, it went before the magistrate on one

basis; it went before Mr Justice Pincus; the point
was not agitated; it went to the Full Court and

in a dissenting judgment, the point emerges which

is now sought to be agitated on a hypothesis which

may or may not be true.

MR CONTI:  Yes, that is right. Your Honour, I sought to deal with

that matter in paragraph (3) on page 2 of my written

submission. We have said briefly on this basis the

by section 18 of the Act, which at the time - which refers merely to the making of an application for review, not to any essential

subsection 4(3) point which found favour with consideration

ingredients of the application such as the grounds

of the application.

ClT14/l/SH	21	17/2/89
Wiest

In this regard, Mr Justice Burchett distinguished

NILE V WOOD. Mr Justice Gummow found it unnecessary

to decide if the reasoning in NILE was applicable to the EXTRADITION ACT and rejected the contention that the respondents would be prejudiced if the amendment

were to be allowed.

So, it is true, these matters were not raised.

Mr Justice Gummow was firmly of the view that, in

effect, there was no prejudice to the respondents by this point being ventilated at the heel of the

hunt.

Your Honours, can I just take you, please, to

page 4 and if I could just walk you through the

balance of the submissions and - - -

BRENNAN J:  If you were to succeed, if special leave were to

be granted and you were to succeed on this point,

what is the order which you would seek?

MR CONTI: Well, we would seek leave to - I actually had some

grounds of appeal to - - -

BRENNAN J:  But what is the order,thoug~ you would seek at the

end of the day?

MR CONTI:  I am sorry, yes. Your Honour, the order we would

seek at the end of the day - I have not directed my

attention entirely to that matter; I should have.

McHUGH J: Well, the warrants would be quashed, would they not?

MR CONTI: Yes, I am not sure how far the quashing would go but

I suppose it would have to be a quashing of the warrant

for comm.ital and whether it is also necessary to set

aside the Attorney-General's notice, I might just

have a little bit of - take that on notice if I -

well, Your Honour, it would be an order - if one

goes to section 18(3), the order would ultimately be

one that the fugitive be released.	The warrant would
be quashed and the fugitive released as occurred on the

last occasion when the magistrate found that the

government's undertaking required by section 13 had

not been properly furnished as a foundation to the

proceedings.

(Continued on page 23)

ClT14/2/SH	22	17/2/89
Wiest

BRENNAN J: Yes, it is curious result, though, is it not,

when the point on which the order would be made is

one which found no reference in the proceedings

before Justice Pincus?

MR CONTI:  Your Honour, having looked at a number of

extradition cases for the first time in my life

the last two days, I can say there is an awful lot

of curious cases that I have encountered. But,

of course, we are in the area of criminal law, on which

I do not profess to be any expert, where the

liberty of the subject is involved, his advocates

will, and I would submit with respect, justifiably

so, fight to the last conceivable matter that is

fairly open to argue. By the end of this month he

has served half of the sentence for which he was

convicted in and sentenced in Germany - which would

certainly have a significance in Australia.

On page 4 of my written submission, if I could

just trouble you with what we are seeking to say here.

What we are in effect saying in the concluding sentence

of paragraph 5 on page 4 is that section 4(3) should

have this overriding effect and that - could I correct

something which is in paragraph 6(a). I have said

that the amendments made to section 4(3), would you

cross out the words "in 1973 (page 75) and

subsequently". You cross those out because if you

go to page 75 of the appeal book, His Honour picks

up the amendment which was made to the original

legislation. The original section 4(3) is on page 74,

the preceding page, in which you will see that the

English progenitor expression, "conviction for

contumacy" is there to be found. Now this track in

the legislation is high important, we would respectfully

submit, because you can see there that in 1966 the

Australian law, in effect, was adopting entirely the

English position. You will see subsequently it becomes

wider - more liberal. Where there is a conviction

for contumacy, which has come to mean - the accepted

meaning in the law of extradition in this country is,

conviction which will be set aside if the man reappears.

A conviction which will lead automatically to a

retrial if the man reappears.	And that is how the
legislation was in 1966.

Then if you go over the page to page 75. In

1973, the words "conviction for contumacy" were omitted

and instead there was substituted the words:

the conviction is not a final conviction.

You see that at line 6 on page 75. That is 1973. So

the legislature was saying there, "Well, we interpret",

ClT15/l/SR	23	17/2/89
Wiest

so Mr Justice Burchett went on to say, "the

concept of final - which is not a final conviction,

as really being the nature of a conviction for contumacy."

So no great change in 1973. Your Honours, what

happened in 1985, three years ago, in inserting the

new section 4(3) is of radical importance - it

produced a radical change for two reasons. First of

all, the legislation now reads:

whether or not the conviction is a final

conviction -

'whether or not"-so there can be a final conviction.

He has got to go back for a retrial or not at all if

he is convicted in his absence.

(Continued on page 25)

ClTlS/2/SR	24	17/2/89
Wiest

McHUGH J:  But that is not what the Attorney-General said.

I mean, he got it wrong when he spoke about guilt

but in a speech he made on 20 March 1985 when

he introduced 4(3) he made it plain that the whole

purpose of 4(3) was simply to assimilate the

position of the person convicted in his absence with

a person accused and if you had to produce evidence of the acts or omissions. He said guilt.

MR CONTI:  Your Honour, we would respectfully submit that

whatever regard one pays to the second reading

speech, one would not take it that the second reading
speech was producing a radical change in the law

because particularly, as in 1985, the need for the
magistrate to find a prima facie case was taken
away. Now, given that the need to find a prima

facie case was taken away and given that the

legislation was even widened to say whether or

not it is a final conviction, the broadest possible language,/tonviction in one's absence'~ why would one

assume that the whole of the history upon which the

legislation of this country since 1903 was set at

nought and section 4(3) had this perfunctory

formality procedure and a procedure that does not

make sense. It that is its purpose, it does not make

sense to interpose a 'conviction in absence'concept
into the former requirements of the first limb of

section 17(6)(a). It does not make sense.

McHUGH J: What would have been an even more radical change

is that you would have a class of persons who could

never be extradited at all.

MR CONTI: That is so but, Your Honour, is that so radical in

the light of common law history? If one, on the one

hand, is liberalizing to say, 'well, look, we will

even trade treaties by regulation but we will stand by

our common law principle: people convicted in their

absence should be either retried or not extradited at

all:' What is wrong with that?	Why would not one
assume that that sort of protection would be maintained?

I mean, in a statute which deals with the derogation

of personal liberty, why would not one make that

assumption in fa .. ,our of the accused person or the

convicted person?

Your Honours, the three cases at the foot of

page 4, if I could just take you to one of them -

it will serve my point. That is the earlier one of

CARBON V WATERFIELD. What occurred there was, one

would have thought,on its face <a most unmeritorious
result for the accused but very importantly for the

upholding of the strictness of the procedures

required in extradition matters. Can I just

sunnnarize the headnote without asking you to read

it as it is a little bit long.

ClT16/l/BR	25	17/2/89
Wiest

The Secretary of State had got it wrong. He

thought that the conviction of the accused in
that particular case in France was a conviction

for contumacy and therefore he was going to deal

with the man merely as an accused person and

on that basis whereas, in fact, he had been finally

dealt with in France and he had to go back for

sentence and the writ of habeas corpus was held

a lie.

Mr Justice Salmon delivered the judgment

our list.

of the court and at page 509, in the second paragraph - on

McHUGH J:  No. There are extracts from Mr Justice Burchett's

judgment - 77/78.

(Continued on page 27)

ClT16/2/BR	26
Wiest
MR CONTI:	You can see the approach at the foot of

page 77 of the appeal book.	Mr Justice Salmon
concluded:

Looking at the realities of the situation

he is, in the fullest sence of the words,

a convicted person and in no sense an

accused person.

The government thought he was an accused person

as they thought it was a conviction for contumacy.

In our view, the parties to the treaty

agreed that the persons referred to in

article VII(c) should be treated as accused

persons because, in reality, that is what

they are. There is no reason to suppose

that the parties intended that those who

are in reality convicted persons such as the

applicant should be dealt with otherwise than

as convicted persons.

Earlier on page 76, line 25, His Lordship said:

When an accused person is cormnitted under

the first paragraph of section 10 -

His Honour interpolates -

(a provision corresponding to s.17(6) (a) (i)

..... ) and surrendered to a foreign

government he is surrendered for trial.

You see, the concept of purpose, "surrendered for

trial.

When a convicted person is cormnitted under

the second paragraph of section 10 ..... and
surrendered to a foreign government he is
surrendered to serve his sentence, in which

case all that is necessary in the magistrates'

court is to prove his conviction.

In the present case the applicant was

committed under the first paragraph of

section 10 as an accused person but there is no

question of his being tried if he is

surrendered. He has already been tried,

convicted and sentenced in France. If
surrendered, he will go to prison to serve

his sentence without any further proceedings.

Accordingly, if section 10 means what it

plainly says, the magistrate has wrongly

cormnitted the applicant under the first
paragraph of section 10."

Now, Your Honours, what one gets there is this

underlying concept of purpose for surrender. The

Australian legislation, having regard to what it

CIT17/l/JM	27	17/2/89
Wiest

is fundamentally predicated upon, namely a

requisition for a purpose and committal for a

purpose would require, in our respectful submission,

that a person in Australia who has been convicted in

his absence can be extradited or committed for

retrial only and for no other purpose. Once there

was, you might say, the protection here that the magistrate had to be satisfied there was a prima

facie case. So, understandabl½ the 1973

amendments did not take the original statute

much further, but now, because one could have

the circumstance, as His Honour Mr Justice Shepphard

referred to in his judgment at the foot of page 55:

there will be cases where people are in

fact tried and convicted in their absence in the requesting State who will not have

an opportunity of being heard in defence

of the charge either in the requesting

State or in Australia.

The contention we make, we would submit, is one of fundamental importance because where a

person is convicted in his absence, for whatever
reason, we would submit section 4(3) is in the widest

possible terms, for whatever reason, final law, not

a final judgment. If he is going to be

extradited for sentence he will not have had the opportunity here - no longer require him to find

a prima facie case - or in the country where he

was tried in his absence to present his case.

That is the position that is left if the decision

of the majority is right and we would respectfully

submit that cannot be correct, particularly in

the light of the way in which matters have

proceeded in the United Kingdom.

(Continued on page 29)

CI17/2/JM	28	17/2/89
Wiest

MR CONTI (continuing): Now, Your Honours, can I just read

to you briefly, then, the concluding pages of the

written submission. At the top of page 5, we

submit that the judgments in the English cases cited

above speak of the statutory dichotomy of an accused person and a convicted person in terms of the status by which they are extradited or surrendered, such

status being governed by the purpose of extradition

or surrender, that is to say, "surrendered for trial"

or "surrendered to serve his sentence".	I cite
Mr Justice Salmon there.

It is unlikely that the Australian legislature

would have intended to confine the role of the

accused/convicted dichotomy to satisfaction of the

differing documentary requirements of

paragraph 17(6)(a). Rather, the dichotomy is
directed to the more fundamental function just for
the purpose of the Act. It does not say for the

purpose of section 17(6), for the purpose of the

Act which meant the dichotomy is directed to the

more fundamental function of distinguishing the

different purposes for which extradition may be

granted.

Your Honours, if there was no section 4(3)

there, we would be saying the dichotomy of accused
and convicted person is not just for the purpose
of section 17(6). It goes to the whole overriding

notion of extradition on the basis of the authorities.

Inserting section 4(3) does not make any difference

to the utility of the dichotomy, its fundamental

utility to the Act. Rather, it brings the

dichotomoy into an acute focus and would say that

persons convicted in their absence must be surrendered
only for retrial.

Your Honours, our submission is that, at the foot of paragraph (b) on page 5, as the English cases

essential element of the international procedure	indicate, the foreign State's requisition" ..... is an
with which the EXTRADITION ACT is concerned"- I am
citing His Honour Mr Justice Burchett-" ..... Until
the requisition has been made ..... the Act has no
relevant purposes, and the offence camot even be
referred· to as an extradition crime."

BRENNAN J:  But let us assume for a moment that the hypothesis

on which these proceedings were conducted is correct

and this requisition was received, stating correctly

that the applicant was convicted and sentenced and, at the end of the day, section 4(3) having applied, the order was made and was made, I take it, in the

form in which it was made in this case. What would

then happen?

ClT18/l/SH	29	17/2/89
Wiest

MR CONTI:  A writ of habeus corpus would necessarily lie because

the order which would be made would not be supported

by the requisition.

BRENNAN J:	Why not?
MR CONTI:	Because the requisition fundamentally was saying,

"Extradite this man for sentence". The warrant and

the Attorney-General's notice would have said, "This

man is an accused person.	He cannot be extradited
for sentence.	We cannot respond to your requisition".

BRENNAN J:	Yes.
MR CONTI:	So, the notice could never have been issued under

section 15 in the first place.

BRENNAN J:  How does section 4(3) operate in a case to which

it is intended to be applied?

MR CONTI:  How it operates is that it categorizes the status

of the person sought to be extradited and it says,

"This man can only be extradited for trial or retrial".

BRENNAN J:  I appreciate that but the foreign State, so far as

its laws are concerned,have convicted and sentenced a

person. They apply to Australia for an extradition

order. Section 4(3) comes in and says, "For the

purposes of this Act, this is not a convicted person,

he is an accused person". So, proceedings can then

be conducted against him as an accused person.

(Continued on page 31)

C1Tl8/2/SH	30	17/2/89
Wiest

MR CONTI:  No. Your Honour, the proceedings cannot be

conducted at all because the requisition which

is fundamental to setting in train, as 1 have

indicated there at the foot of paragraph (b) in

that language, is where the train never, as it

were, leaves the station.

BRENNAN J:  So a requisition which is entirely in

accordance with the law of the requisitioning
country is one which, if it comes into collision

with section 4(3), is nugatory?

MR CONTI:	Yes, that is so.
BRENNAN J:	Now, section 4(3) defeats the possible

application of itself in a case which it was

directed to?

MR CONTI:  No. What section 4(3) would then compel the

Attorney-General to say is under our law, our

inherited common law as implicitly at the heart

of our legislation we cannot respond to this

requisition other than to send him back for retrail.

Either you amend your requisition and say you are

going to retry him or we cannot respond at all.

That must be the response.

BRENNAN J:  1 think we understand that point now, Mr Conti.

ls there anything further that you wish to add?

MR CONTI:  Your Honours, not greatly encouraged by the

last remarks, all 1 was hoping Your Honour

would - - -

BRENNAN J: It was not intended to either encourage or

discourage you, but simply to apprise you of the

fact that I think we are seized of the problem that

you have raised.

MR CONTI:  I was just hoping that Your Honour would have a

moment to be able to just glance through the

remainder of the written submissions, but 1 do

not want to press my presence too strongly.

BRENNAN J:  The Court will adjourn briefly to consider

the course which it should take.

AT 11.18 AM SHORT ADJOURNMENT

ClT19/1/HS	31	17/2/89
Wiest

UPON RESUMING AT 11.32 AM

BRENNAN J:  We need not trouble you, Mr Spigelman.

MR SPIGELMAN: If the Court pleases.

BRENNAN J:  The applicant, against whom an order has been

made by a magistrate under section 17(6)(c) of the

EXTRADITION (FOREIGN STATES) ACT 1966 Commonwealth

applied under section 18 of that Act to review the

magistrate's decision. Mr Justice Pincus dismissed

the application and an appeal to the Full Court of

the Federal Court was dismissed. The proceedings

were conducted at all stages on the footing that

the applicant had been convicted and sentenced by

the local court of Bonn in the Federal Republic of

West Germany and that an appeal to the higher

regional court of Cologne had been dismissed. But

nevertheless, he was a person to whom section 4(3)

of the Act applies. Thac provision reads as follows:

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 final

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.

The applicant, relying on the hypotheses on which

the case was conducted below, points to the

inappropriateness of an order of extradition for

sentence. He suggests that there is a fatal

disconformity between the original requisition and

the hypotheses on which the case was conducted.	We
doubt whether the terms of the requisition would
properly have fallen for consideration by the
magistrate in any event.	But whether that is so or
not, no such question was raised either before the

magistrate or before Mr Justice Pincus on review

under section 18. Moreover, the hypotheses itself

may well have been false as the majority of the

Full Court seemed to consider.

It would not be appropriate to grant special

leave to raise questions not raised at first instance

in a case where the hypotheses on which the proceedings

were conducted may well have been incorrect. The

case is not a suitable vehicle for that purpose.

Accordingly, special leave is refused.

AT 11.35 AM THE MATTER WAS ADJOURNED SINE DIE

ClT20/l/SR	32	17/2/89
Wiest