oO r t Q HWORDS EXTRADITION - Review of decision of magistrate to commit fugitive to prison to await warrant for surrender to Republic of Italy - Alleged offences committed in 1975 and 1980 in course of campaign of opposition to school selection system - Powers of court reviewing magistrate's decision - Meaning of requirement in extradition Treaty that offences be "punishable" by not less than two years imprisonment - Admissibility in extradition proceedings of statements made by co-accused persons - Whether evidence in relation to charge of malicious damage showed necessary criminal intent - Admissibility, on tender by fugitive, of subsequent statements made by prosecution witnesses retracting or qualifying tb < J fp 0) nee relied on by prosecution - Admissibility of statement optained as result of improper or unlawrul questioning - Whether prima facie case against fugitive in respect of each - Whether chis formula involves consideration of te Cid su n QOit br — oO bm) o wu mn [3] th putting fugitive on trial - Relevance cf fact that evidence against fugitive is from accomplices in determining whether a jury "would not be likely to convict" the fugitive at a trial in New South Wales - Whether offences charged against fugitive are "offences of a political character" - Entitlement of magistrate to consider this question. be int Extradition iFore1an States) Act 1966 ss.13, 15, 16, 17, 18, 182, 26 Extradition (Republic af Italy) Recuiations Treaty cf Extradition between Australia and the Republic of staly Arts.11, ¥(2), ¥I(1) Administrative Decisions (Judicial Review) Act 1377 ss.5, ll, 15, 16 Justices Act 1902 (NSW) 5.41 Bedaood v Keener of Her Maiesty's Penitentiary at Malabar £i975] 2 NSWLR 144, Cariin v Chidkhunthod (13 November 1985, nov reported), | Rv Baskerville £1916] 2 KB 658, In re Castioni C1891] 1 QB 149 applied. Riler and Butler Vv Commonwealth of Australia (1983) 50 ALR 592 (Fox J.), (1984) ALR 249 (Full Federal Court), i9 December 1985 (Hich tourt. not yet reported), Alpaslan Vv Minister for Immicration and Ethaie Affairs 'unreported Gray o., 16 July 1985), Puharka v Webb £19823] 2 NSWLR 31, Fov ireland (1870) 126 CLR 321, Bunning v Cross (1978) 141 CLR 54, Cieland v The Queen (1982) 151 CLR 1, Tripodi v The Queen (1361) 104 CLR 1, Rv Freeman (25 October 1285, New South Wales Court of Criminal Appeal, not reported), m v Governor of Brixton Prison; ¢x parte Schtraks £19643 AC 556, Beese v ener of Ashford Pemsand Centre £1972] 1 WOR 1426, Rv rnor of Brixton Prison; ex parte Mourat Mehmet £1962] 2 o8s, Rv Governor of Prixton Prison: ex parte Sadri £19623 © 12764, Wentworth v Rowers C1984] 2 NSWLP 427, Fe = 1294] 2 OB 415, Pv Governor of Brixton Prison: ex sarte aiczynski CISSf] 4 OB 540, Poy Governor sf Pentonville on; 6x parse Cneng C1S73] AC $21, R v Wilsen: ex parte ess PT (1276) 135 CLR 179, BR v Governor of Pentonville on; @y carte Budlong £19803 1 WLR 1110 referred to. Pov Phillips and Pringle £19733 1 NSWLR 175, Malaveta-Sincapore Airlines Limited v Parker £1972] 2 SASR 360 distinguished. NEW G.6 of 1986 LIEEFO WIELTAM FREVATO wv TH CENTRE & ORS s Le NSW G.16 of 1986 LIBERO WILLIAM PPEVAT oO vy RICKARD PETER MISZALSKI & ANOR Wilcox J. Sydney 6 February 1986 Ww The proceedinas The first Application (No.G.6 of 1986) is an apolication for review made both pursuant to 5.18 of the Extradition (Foreign States) Act and to the Administrative Decisions (Judicial Review) Act 1977. This Application challenges the validity of the magistrate's decision that the applicant is liable to be extradited. The second Application (No.G.16 of 1986), which is founded only upon the Administrative Decisions (Judicial Review) Act, seeks review of the decision to commit to prison, as distinct from ordering that the applicant be held elsewhere in custody, pending the issue of the warrant for surrender; in connection with that matter it is said that the magistrate denied to the applicant natural justice in that he afforded to him no opportunity to submit that he should be held in custody otherwise than in prison. The respondents to the proceedings are the Governor of the Metropolitan Remand Centre, in relation only to the first Application, Mr Miszalski and the Attorney-General. Only the Attorney-General, of the respondents, has taken an active cart in the hearince, he putting submissions in support of the magistrate's order. The applicant is an Australian citizen, having been born in this country on 7 May 1962. His parents, apparently, had come to Australia from Italy. They returned to Italy when the applicant was aged about four years, taking him with them. He grew up in Italy. During the last stage of his education, at least, he lived in Padua; and it is in respect of his attendance at an educational institution in that city that his present difficulties arise. It appears that, in the period 1979-1980, he became associated with a number of other young people -- mainly students -- who were opposed to what has been described in the evidence as "the school selection system". Neither the precise nature of this system nor the reasons for opposition to it appear from the evidence but neither of those matters is material. What does matter is that the applicant is said to have committed various criminal offences in the course of the campaign of opposition. It is in relation to these offences that his extradition is now sought. During March and April 1982 some of the people involved in the campaign were interrogated. On 17 March 1982 a warrant was issued by the Deputy State Attorney at Padua for the apprehension of eleven named persons, including the applicant. The warrant charged 20 separate offences, not ail involving all of the accused, but, as I understand the warrant, Mr Prevato was alleged by the warrant to have been associated with all but one offence. The numbers of the counts are discontinuous and reach to no.60. The warrant attributed to the applicant an address in Padua, but it appears that he was not then arrested. The evidence does not disclose his movements between that time and 29 September 1985, upon which date he was arrested in Sydney pursuant to a Fa = yc rN A AR NR A I a — 5. warrant issuec by a local magistrate under the authority of s.16 of the Extradition (Foreign States) Act. The applicant was taken into custody at the Metropolitan Remand Centre, Long Bay Prison, Malabar, where he remained until my order for release on 31 January 1986. Following the arrest of the applicant a requisition was made by the Italian Government to the Attorney-General for the Commonwealth of Australia for the surrender of Mr Prevato. On 4 November 1985 the Attorney-General issued a notice under s.15(1)(b) of the Act, addressee to any magistrate before whom Mr Prevato might be brought, indicating that a requisition had been made to him as Attorney-General by the Republic of Italy for the surrender of Mr Prevato, "a fugitive who is accused of the offences of..... ". There followed a list of i4 offences identified by title and by reference tc the article in the Ttailan Penal Code creating the relevant offence. Procedure for committal and review Section 17 of the Extradition (Foreian States' Act deals with the proceedings before a magistrate in relation to the extradition of a fugitive. The section was heavily amended by the Extradition (Foreign States) Amendment Act 1985 -- which Act took effect from 1 July 1985 -- and it was further amended by the Statute Law (Miscellaneous Provisions) (No.2) Act 19385. It appears that no print of the latter Act 6. h tt yet available but counsel for the Attorney-General have kindly made available a copy of the Bill. They indicate their instructions that the final form of the Act followed that of the Bill and that these latter amendments came into force shortly before the day, 23 December 1985, upon which the magistrate committed the applicant to prison. The relevant provisions of s.17, as that section now stands, are: "17 f poe (6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and -- (a) there is produced to the Magistrate -- fi) in the case of a person who is accused of an extradition crime -- (A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such @ warrant; (B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and ' ,* ' 7. {C) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested; or (ii) ... and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and (b) the Magistrate 1s 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, the Magistrate shall, either -- (c) by warrant in accordance with the form prescribed for the purposes of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person; or fa (d) in the case of a person -- (i) who has been charged with an offence that 1s alleqed to have been committed in Austraiia, being é@ charge that has not been disposed of; or (ii) who has been convicted in Austratia of an offence and is not in custody in respect of - that offence, ? | a 8. 1 t on the person's entering into such recognizances as the Magistrate thinks appropriate, grant bail to the person pencing the signing of a warrant by the Attorney-General for the surrender of the person, but otherwise the Magistrate shali order that the person be released. (6A) A person referred to in paragraph (6)(b) is not entitled to adduce, and a Magistrate 18 not entitled to receive, evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person 1s requested. (7) Where the Magistrate is of the opinion that it would be dangerous to the life or prejudicial to the health of the person to commit him to prison, he may, in lieu of committing him to prison, by warrant, order that he be hele in custody at the place where he is for the time being, or at any other place to which the Magistrate considers that he can be removed without danger to his life or prejudice to his health, until such time as he can without such danger or prejudice be committed to prison or he is surrendered and, in such a case, the warrant shall be in accordance with the form prescribed for the purposes of sub-section (6) with such vaciations as are necessary to meet the circumstances of the case. (8) Where, in pursuance of this section, a Magistrate commits a person to prison or otherwise orders that he be held in custody, or grants bail to a person, he shall forthwith send to the Attcrney-General a certificate to that effect and such report, if any, relating to the proceedings as he thinks fit ..." wn ection 17A of the Act provides for review, in this Court or in the Supreme Court of the State or Terratory in which the person was apprehended, of any order by a magistrate for the release of that person. The new section which was Wo substituted as 5.i8 late last year provides for review of the validity of decisions of magistrates, inter alia, to commit a person to prison. The section relevantly provides: "18(1) Where a person (in this section referred to as a "fugitive") is committed to prison or otherwise ordered to be held in custody, or is granted bail, by a Magistrate pursuant to section 17, the fugitive may, within the period of 15 days after the date of the decision of the Magistrate, apply to the Federal Court, or to the Supreme Court of the State or Territory in which the Magistrate was sitting, for a review of the validity of the decision of the Magistrate. (2) The fugitive is not entitied to make an application under sub-section (1) after the expiration of the period referred to in that sub-section. (3) Upon a review under sub-section (1), the Court shall have regard only to the material that was before the Magistrate and shall -- (a) if satisfied that the decision of the Magistrate was valid -- make an order confirming the decision; or (b) 1£ not so satisfied -- order that the fugitive be released. (4) An appeal lies to the Full Court of the Federal Court from an order made on an application by the fugitive under sub-section (1) if the appeal is instituted within 15 days after the date of the decision of the Federal Court or the Supreme Court in relaticn to the appizrcation. (5) In an appeal under sub-section (4), the Full Court shall have regard only to the material to which regard could be had by the Court that made the order from which the appeal was instituted, (6) Except as provided by sub-section (4), an appeal does not lie from an order referred to in that sub-section. win time. 10. (7) A Magistrate shall, when committing a fugitive to prison or otherwise erdering that a fugitive be held in custody, or when granting pail to a fugitive, pursuant to section 17, inform the fugitive that the fugitive will not be surrencered until after the expiration of the period referred to in sub-section (1) and that the fugitive may make an application to a Court as provided by that sub-section. (8) we. " iI make two comments about this section. First, there is no provision in the section for any extension of the period of 15 days allowed for the making of an application for review. The reason, no doubt, was that it was thought desirable to enable an early decision by the ttorney-General upon the question of surrender and decision was to surrender, prompt surrender. Speed , if the is desirable; in the interests both of the fugitive, who is being held in some form of custody pending a decision and who yet may not be surrendered or may be acquittec of the relevant charge or charges, and of the administration of justice in the requesting State. But the absence of any provision for extension af the relatively short time allowed for the making of an application for review throws a particular responsibility upen those acting on behalf of the fugitive to ensure that any application for review 1s made No doubt this is one reason for the requirement of s.18(7) that the magistrate inform the fugitive of his position. In this connection it does not appear from the transcript of the proceedings in this case that any wee ee il. novcification under s.18(7) was given by Mr Miszaiski. Notwithstanding that apparent omission, those representing the applicant realised the position and -- despite the time of year -- filed Application G.6 of 1286 within the required 15 days. ~ The second comment is that s.18 contains no provision for the reviewing Court to suspend the operation of the magistrate's order, or to admit the fugitive to bail, pending the determination of the review. In my opinion this is unfortunate. In many cases, no doubt, it will be desirable to keep the fugitive in custody pending review; but this may not always be so. The present case is one where, upon the information presently avazriable to me, it may have been » 'dO 'd[e} priate to release the fugitive from custody pending the determination of his application for review. As will appear, the matters in respect of which the fugitive was committed to prison to await extradition are relatively minor. They took place a long time ago. The uncle of the fugitive, an Australian citizen who owns his own home in Sydney, has sworn an affidavit in which he offers to provide accommodation for the applicant. I was unformed by counsel that the uncle was willing to enter into a surety for the appearance of the applicant as required. In the event the matter of release of the applicant pending the determination of the case was not pursued by his counsel. Counsel for the Attorney-General indicated that . 12. they would wish an opportunity to present evidence on that question and counsel for the applicant preferred to use the time which I was able to make available to argue the merits of the substantive Application. In the absence of any evidence which might have been adduced on behalf of the Attorney-General I speak tentatively, but it seems to me likely that a person in the position of Mr Prevato awaiting a trial in respect of like offences alleged to have been committed in Australia would be granted bail. A magistrate may grant bail to an apprehended fugitive pending consideration by the magistrate of the case in support of extradition: see s.17(2). It is difficult to see any valid objection to investing the superior courts with a like discretion in respect of the period during which an application for review is before them. The observations I have just made are directed primarily to the operation of s.18 in the Supreme Courts of the various States and Territories. In this Court there is an alternative procedure available: an application for review pursuant to the Administrative Decisions (Judicial Review) Act. The making of an order under s.17(6) of the Extradition (Foreign States) Act 1966 is a decision to which that Act applies. The recent case of Riley and Butler v Commonwealth of Australia -- see (1983) 50 ALR 593, (Fox dg.), (1984) S57 ALR 249 (Full Federal Court) and the yet unreported decision of the High Court of Australia given on 218 December i985 -- was an example of the use of the Administrative Decisions (Judicial Review) Act to obtain review of a magistrate's decision to commit two fugitives to prison pending possible extradition to the United States. It does not appear that this position has changed, despite the enactment of s.18 of the Extradition (Foreign States) Act. The time available for an application under the Administrative Decisions (Judicial Review) Act is 28 days and this period may be extended upon good cause being shown: see s.11(1l)(c) of that Act. Moreover, s.15 of the Administrative Decisions (Judicial Review) Act gives to the Court power to make an interim order suspending the operation of the decision the subject of review pending the determination of the review. This power would appear + sufficient to enable the Court, in a proper case, *O suspenc the operation of a committal order upon appropriate conéitions as to bail; cf Alpaslan v Minister for Immigration and Ethnic 2ffairs (unreported, Gray J., 16 July 1985). It is curious that a more restrictive regime was selected in respect of Supreme Courts -- or this Court under he Extradition (Foreion States) Act -- than 1s available fa under the Administrative Decisions (Judicial Review) Act. It seems unfortunate that the fugitive is required to be unformed only of those more restrictive rules. 14. The charges Mr Miszalski committed the applicant to prison in respect of five only of the charges referred to in the notification by the Attorney-General. He held in respect of the remainder that there was no evidence sufficient to justify putting the applicant on his trial. Those five charges were identified as charges 2, 3, 44, 45 and 46 in the warrant of the Deputy State Attorney for Padua. Counts 2 and 3 relate to a single incident which is alleged to have eccurred on 29 January 1979 when the applicant -- then aged only 16 years and 8 months -- was a student at the Marconi Technical Institute in Padua. It is necessary to read those charges in association with charge No.1, to which charges 2 and 3 refer. Charges 1, 2 and 3, as recorded in the English language version tendered to Mr°Miszalski, are as follow: "L) ... in complicity with one another, the first 9 as promoters and organizers, in execution of a program adopLled by the 'Ronde Armate Proletarie' (proletarian armed patrols) of which they were members, which program was intended to oppose 'selection' in schools, and RUGGERO, PAESOTTO, GRIGGIO and PREVATO having materially committed the facts - set fire to the registers and class works of the teachers of the Technical Institute 'Marconi' in order to destroy them, thus putting the school building in danger of fire." CThe applicant was not named as one of the "promoters and organizers", being named last in the list of 11 names]. "2) ... in complicity with one another and in the capacities mentioned bove (sic) - destroyed the school registers (public deeds) mentioned above. ' ' i5. 3) ... in complicity with one another, in their aforesaid capacities and in order to make an attempt on public safety and to commit the offences mentioned above - possessed inflammable substances, and in particular a can containing three litres of petrol." Charges 44, 45 and 46 each relate to an incident said to have occurred at the Selvatico Technical Institute on 8 September 1980, che appiiacant being then aged 18 years. Those charges reac as follow: "44) ..,. 1m complicity with one another and for purposes of terrorism and eversion of the ~ Gemocratic order - decided to damage and subsequently damaged with metal bars an electronic laboratory and an electronic computer in the Secretary's Office of the Technical Institute 'P. Selvatico'', threatening persons 'and causing damage to other items existing in said Institute (telephone sets, arm-chairs, a writing-desk, a chair, typewriters, an amplifier, a mini computer, a painting by Manzu accent and a polyptych Dy Tono Zancanaro), thus causing said Institute to suffer heavy f2nancial damage (not iess than ten million lire). 45) ... in complicity with one another, being masked and in order to subvert the democratic order - decided to threaten and actually threatened public officials (teachers and cther members of the Institute 'P. Selvatico' while in the exercise of their duties). 46) ... in complicity with one ancther and for purposes of terrorism and eversion of the democratic order - deprived the teaching and non-teaching staff of the Institute ''Selvatico' of their personal liberty, said staff being public officials in the exercise of their duties." The Extradition (Foreign States) Act is made tc apply in relation to the Republic of italy by the Extradition (Republic of Italy) Requlations; but the 16. wy 'G ia) lication 18 subject te the terms of the Treaty of Extradition between Australia and the Republic of Italy signee on behalf of the Governments of the two countries on 28 November 1973, a text of which is annexed to the regulations. The effect of making the application of the Act subject to the terms of the Treaty is to require, in any ue) 4h ticular case, compliance with the requirements of both a c & the Act and the Treaty: see Rilev and Butler (1984) 57 ALR 249 at pp.252-253. Article II of the Treaty deals with effences for which extradition may be granted. Relevantly, it provides: "lL. Extradition shall be granted for an act or omission constituting an offence coming within any of the following descriptions of offences if the offence is, according to the laws of bath Contracting Parties: (a) punishable by a punishment not less severe than 1mprisonment or other form of detention for two years; and {b) one for which extradition can be granted: (viii) Kidnapping; abduction; false imprisonment. (xvi) Arson. (xvii) Malicious damage to property. (xxiii) Attempting ... to commit ... any offence for which extradition may be granted - under the present Treaty. a w "I . 2. Extradition shall also be granted for any other act or omission constituting an offence if the offence is, according to the laws of both Contracting Parties: (a) punishable by a punishment not less severe than imprisonment or other form of detention for two years; and (b) ene for which extradition can be granted, 3. Extradition shall also be granted for Participation in an offence to which this Article applies if the participation is punishable by the laws of both Contracting Parties by a punishment not less severe than amprisonment or other form of detention for two years. I have set out all of the offences listed in sub-para.(b) of para.i arguably relevant to the present case. Tt is a fundamental requirement of Art.II that, te be extraditable, an offence must be "punishable" by a punichment not less severe than imprisonment for two years. + 20 1 a cnaracteristic of each of the five cifences in ter] respect of which the *oplicant was committee to prison that wT ke maximum punishment which might be imposed under the Italian Penal Code is a term of imprisonment exceeding two ears. But, in relation to each offence, provision is made lg for a minimum term of less than two years and -- at least on 18. one interpretation of Art.225 of the Code -- this minimum term is subject to further reduction in the case of offences committed by "responsible minors", that is persons aged between 14 and 18 years. Under those circumstances counsel For the applicant argues that none of the offences falls within Art.II. He says that since it is lawfully open to the Italian court to impose in a particular case a sentence of less than two years imprisonment it cannot be said that the offence is "punishable" by imprisonment for more than two years. The offence may lawfully be punished -- and in the particular case may in fact be punished -- by a lesser term of imprisonment. Counsel draws attention to the circumstance that this Treaty -- unlike the Treaty with Sweden referred to in Puharka v Webb £19833 2 NSWLR 31 at B.36 -- does not speak of a maximum term of imprisonment of two years. a do not accept the construction of Article II urged on behalf of the applicant. It appears to me erroneous to approach the matter by reference to the availiable minimum sentence. The requirement of the Article 1s that "the cffence is ... punishable by a punishment not less severe than imprisonment ... for two years". In other words, the offence must, in law, be abie to be punished by such a term. An offence is so able notwithstanding that it may also be able to be punished by imprisonment for a lesser term. Such an interpretation not only accords with the natural meaning of the words but is sensible in application. The scurpose of the provision 1s to prevent extradition for offences of a trivial nature. As Deane J. said in Rilev and Butler "... it is a well-recognized standard of the international community ... that extradition -- with its attendant deprivation of liberty and disruption of lives -- should only be requested or granted in cases where the alleged offence is a serious one". Upon the construction of the words advanced on behalf of the applicant no offence would be extraditable if, either in Italy or Australia, 1t were lawfully cpen to a court not to impose a sentence of imprisonment; for example by imposing a fine or requiring the offender to enter into a good behaviour bond. The wide discretion given to Australian courts, at least, to take those courses would immediately rule out extradition for almost ali offences. on 17(6) of the Extradition (Foreign States) uz La) a cot PR. Act, in its present form, does not require the production to wo cr However, s.17(6! makes it a prerequisit o an order by a 4a warrant far BS ot nagistrate for committal to prigon to awa surrender that the magistrate be "satisfied ... that the person is liable to be surrendeed to the foreign state that : we . 20. : ' e made the requisition for surrender". In the cas am of Italy, extradition is only to be granted 1f such proofs are provided. Article XI(1) of the Treaty, provides: "Ll. If a request for extradition relates to an accused person, extradition shall not be granted unless evidence is furnished that the offence for which his extradition is sought is one for which extradition may be granted under the present Treaty and evidence which would be, according to the law of the requested Party, sufficient to justify his trial if the act or omission constituting the offence had taken place in its territory." Counsel for the Attorney-General tenderec to the magistrate, Mr Miszalski, three authenticated statements referring to the participation of the applicant in the two events the subject of the five charges, Those statements constituted the whole of the material before the magistrate which arguably imrlicated the applicant in the alleged offences. Two of those statements were made by & person wh was himself cited in the warrant as a ca-offender. The iy third statement was made by a person separately charged in respect of the same affence. Each statement was obtained in the course of questioning by officials concerned with the _— L prosecus on of the offences, although they were generally in H ati.2 form rather than in the form of responses to @ Ny Ss questions. Counsel for the applicant contends that statements by accused persons are nov admissible against a fugitive. He emphasises the requirement of Art.XI(1) that the evidence ve furnished in support of the request for extradition be "according to the law of the requested Party" -- that is, in this case, the law of the relevant part of Australia -- ty mm uffici @ nt to justify his trial" if the act or omission constituting the offence had taken place in that part, that is New South Wales. It follows, he says, that only evidence which would be admissible in a trial of the appizcant in New South Wales is admissible in extradition proceedings against him; a record of interview not being so admissible these statements may not be received as evidence against his client. IT accept the first step in this argument. The matter was dealt with in the judgment of the Full Court in Rilev and Butier (1984) 57 ALR at p.271: "The application of Art VI resolves one other issue debated before us: whether the evidence upon which the magistrate may act 1s confined to evidence admissibie in cririnal proceedings in Sustralia. This question must be answered aifirmatively, but subject to the understanding that the test is one of substance, not of form." record of interview of one accused tendered at a trial against another accused. Such a document is inadmissible at a trial not because the author of the statements made therein is himself or herself an accused person or because the statements were elicited through the questioning of the = author by police officers, but simply because it is defective in form. A document containing assertions as to the acts or omissions of another person is generally inadmissible against that person at his or her trial. Subject to some exceptions, which are not presently relevant, that principle applies to any extracurial statement, whoever be the author and whatever be the circumstances of its making. Both the Extradition (Foreian States) Act and the Treaty with Itaiy envisage that evidence in extradition proceedings shall be provided by authenticated statements mace outside court: see s.26 of the Act and Art.X(2) of the Treaty. Art.X¥V(1) of the Treaty requires "the authorities of the requested Party" to "admit as evidence, in any proceedings for extradition, a sworn deposition or affirmation taken in the territory of the recuesting Party .. if it ts duly authenticated". The obvious reason for this procedure is the impracticality of having witnesses attend court in the requested State to give oral evidence on oath. So it is not to the point that the statements tendered against the applicant were made out of court. CI interpolate that it does not appear that the statements have been sworn or affirmed, as envisaged by Art.XV(1). However, Art.X(2) may permit the courts of the requested 'State to act upon unsworn, though authenticated, statements. As no point was taken that the statements were unsworn, and the matter 23. has not been argued, I express no opznion as to whether this would have been @ good ground for their rejection by the mMagistravte.J The question, in relation to admissibility, must be whether, 1f the authors of the statements were called at a trial to give oral evidence to the same effect as their written statements, that evidence would be admissible, under the law of New South Wales, against the applicant. Assuming for the moment the relevance and probative value of the contents of the statements, this question must be answered in the affirmative. Under our law mM SW evidence given at a trial by an accused person -- even Q ty @ person who is nimself a defendant in that trial touching the cenduct of another accused person is evidence againsy that person. And, of course, it makes no difference that the incriminating evidence is given in response to questions put at the crial by a person concerned with the ny prosecution of the offences, such as in cross-examination by the Crown Prosecutor. This general objection to the admissibility or the statements must be rejected. Count 2: prima facie case I have already referred to the test posed by Art.xI regarding the evidence required to be adduced before any order for committal may be made, that is that it be "sufficient to rtustify his trial"; sufficiency being determined by lcecal standards. There 1s a question -- to ba Pp Which I will return -- as to wh rsh) t is meant by that test but, upon any view, 1t must inciuce the requirement that the evidence adduced to the magistrate be sufficient to indicate a prima facie case of the guilt of the fugitive in respect of the offences in relation to which his extradition is sought. By "prima facie case of guilt" I mean evidence which, if it stood alone at a trial, could be accepted by a reasonable jury, properly directed, as a basis for a finding of guilt. In order to constitute a prima facie case there must, cf course, be evidence capable of acceptance against the fugitive in respect of each element in the relevant offence. It is convenient to first consider the submission put by counsel for the applicant -- in relation to each charge -- that no prima facie case has been made out against his client. Count 2 th ct o fu p- a a ao fon o He] cr ww cr cr D ib rises out a he alleg Su un Ny @ Fh mM Lay nm wD Rp cl fe) bh& Dd oO Marconi Institute. That incident 1 statements of Diego Ruggero and Mauro Paesotto. Ina tement made at 1625 hours on 14 March 1982 at the Police a oD L L m Bb Headquarters, Padua and in the vresence of the duty defence [3] Fh ct ~ = Ss a lawyer he dav, Ruggero dealt with a number of m a incidents in which was involved; incidents spread over some years. The statement included this passage: "After the abovementioned convalescence, towards the end of 1978 when I was enrolled at the ITIS Marconi College in the last year of a course for Heating technicians, I decided to join an Inter-College Committee which already existed. This Committee could be described as ere ee ieee Cee a WN ul a people's public structure for ail students from Padua, set up to promote debates, strikes, demcnstrations and other activities in the struggle against the education authorities. During the year when I joined the inter-College Committee, in December 1978, the following were also members: Mauro PAESOTTO, Mario MUNARI, Giempaolo BORTOLETTO, someone called Gianr: nicknamed "Trudi" and also a person called "Isa"", Raul FRANCESCEKI, Edoardo REPETTO (whe left anyway a couple of months later) and somebody cailed Lorezzo whom I saw very little cf at the meetings and I found out later that he had gone off to India shortly after I joined. Mauro PAESSOTTO (sic) was at that time head of the Committee or rather in charge of it and the armed bands. Within the activities of this Committee, it was decided in January 1979 to carry out an action against the school 'selection' system which we thought was especially severe in my college. I remember that this was the subject of a number of discussions and at a meeting held in the ftudent's Room in the Faculty of rhysics in via Marzollo, we decided to take action. We planned to introduce a group of us into the Ist:tuto Marconi during the evening ef an holiday. They were to get the teachezs' registers ars records and burn them. Under the lezdersh:p of Paesotto, ALL those named above attended this meeting and a@litogether it was decided that I was to be entrusted with this action, that I was to choose someone from the same College to join me and thata (sic) another two people - who were not prezent and I don't know their names - were to prcvide backup from the outside by warning 372 vith a walkie-talkie radio if the Police or watchmen showed up. I chose my friend Libero William PREVATO to come with mé and asked him to get us 4 walkie-talkie radio. Once we had it I kept one half anc gave the other to Paesotto the day before tne planned action and agreed on the timing of the said action with him. 26. It was a Sunday evening. Prevatc anc I climbed over one of the outside gates at the back of the school and entereé the school through a window after breaking the glass with a stone. After entering the building we went to the teachers' room - we knew exactly where 1t was located - and got the school registers out of the teachers' cupboards. We had to force some of the locks of the latter. We piled all the registers up in one of the nearby corridors and poured about three litres of petrol over them. I had bought the petrol earlier and brought it along ina tank. We set fire to the registers and the jerry-can as well anc then left hy the same way we had entered without meeting anyone. Everybody went their respective ways home." Mauro Paesotto, the person named by Mr Ruccero as the leader of the group, provided a series of statements referring to many incidents. In a statement made on 16 March 1982 he mentioned the Marconi Institute incident, but without specifying the date upon which it occurred. He yeferred, without further identification, to ""Prevato"; saying that "Prevato" did not take part in the organization of the attack because at that time he did not belonc to the Ronee Armate Proletarie. His description of the incident reads as follows: + "As to the execution of the attack in which I confirm I toox wart, I remember 1% was executed on a Sunday evening ane the crerative group consisted of RUGGERO, PREVATO, Lauretta GRIGGIO and I. ¢ RUGGERO and PREVATO entered into the College which they knew because they were students of 1t. Lauretta and I waited outside; we pretended to be a couple in love; we had a Walkie-Talkie PREVATO had got before, so we tried to keep track of him and RUGGERO, since 27. they also had the same instrument. But the connection wasn't possible because the instruments didn't work. In spite of this, the action was successful." I agree with counsel for the applicant that Mr Paesotto's statement furnishes no evidence that the applicant committed either of the offences alleged against him in respect of the Marconi Institute: destruction of the school registers and possession of petrol with intent to destroy the records. It 1s not made clear that Mr Paesotto observed Mr Ruggero and the applicant to enter the Coilege, but even assuming that the statement should be so construed, it says no more than that. The statement makes no reference to petrol, to a jerry-can or to any other equipment taken on she mission, other than a walkie-talkie. No information is provided as to what was done in the college by Mr Ruggero and the applicant. Mr Paesotto does say that "the action" was Successful but he dees not cescribe the nature of "the action", st21l less does he indicate that he himself observed it being successfully completed. Counsel for the Attorney-General drew atzention to @ passage in the Full Court judgment in Riley and Butler at (1984) 57 ALR 272 in which reference was made to authorities upholding the admissibility of evidence in extradition proceedings in which a conclusion is expressed; the evidence not specifically indicating that the conclusion was derived from the personal observations of the witness. But ¢ the basis upon which such evidence was admitted in those cases was that it appeared from the evidence that the witness was in fact in a position to speak from his personal knowledge; though he omitted to say that he was actually so doing. That approach can have no application to a case, such as the present, in which the evidence shows that the witness was not in fact in a position to observe the relevant acts. The statement indicates that Mr Paesotto remained on watch outside the College with Lauretta Griggio. It follows that, in stating his conciusion that "the action was successful", Mr Paesotto must have been relying on what he was tolc by someone else, In a subsequent statement, made on 7 April 1582, Mr Paesotto repeated that "Prevato" had no part in planning the attack on the Marconi Institute. He said that "Prevato" did t join the Ronde until shortly before 3 December 1979. He oO mh confirmed what he had previously stated regarding the execution of the attack but he took the account no further. rau) Counsel for the applicant concedes that th statement of Mr Puggero -- if, contrary to his submission, admissible against his client -- establishes the physical acts necessary to make out a prima facie case against his client in respect of count 2. However, he urges two reasons why it should be held that no prima facie case has been established: that the evidence does not establish the necessary criminal intent and that, by reason of something emerging from a later stat 0) ment oz Mr Ruggero, the magistrate should have refused to act in reliance upon material in the statement of 14 March 1982. In relation to the first matter, criminal intent, counsel refers to Rv Phillios and Pringle [£19731 1 NSWLR 175, wherein the New South Wales Court of Criminal Appeal set aside the convictions of the appellants for malicious injury to property arising out of their action in sawing down the goal posts of the Sydney Cricket Ground during the 1971 tour of the South African Rugby team. Kerr C.J. and Jacobs ©. held that the trial judge should have left to the jury, in connection with the issue of malice, the question whether the accused had any "lawful cause or excuse". q suie)mn 'd i) % tG ray fu BP o o fon gv cr NS N 6S that this phrase does not mean @ legal right. Rather, as the examples given by both their It seems to me that Phillios and Pringle is Gistinguishable from the present case. In Phillips and PJ fA] fe) Pringle the accused had relied at their trial upon various United Nations' resolutions upon racial discrimination. The question on the appeal was whether, this matter having been raised, the prosecution had established beyond reasonable doubt the absence of malice, that is the absence of lawful le ae 30. cause or excuse. The case says nothing about the usual situation where no claim of lawful excuse is made and in relation to which -- although the presecution always retains the onus of proof -- malice may be inferred from the mere fact of deliberate damage to property; unless, cf course, something appears to suggest that the usual inference is inappropriate. There was material to raise an issue upon thet question in Phillirs and Pringle; there is none in the present case. Mr Puggero and the applicant may well have thought themselves to be morally justified, in pursuit of their cause, in destroying the registers; but there is no suggestion of objective facts which would amount to lawful cause or excuse or of any belief by them of their entitlement to take such action. The clandestine nature of the operation is a clear indication to the contrary. I turn tc the seccneé submission, basec upon the later statement. On 29 March 1982, two weeks after his statement to the prosecution authorities, Mr Ruggero appeared before an Investigating Judge. He madé a statement revising his earlier statement. In relation tc some matters he confirmed what he had previously stated; in relation to other matters he denied or corrected what had been said. He said nothing, one way or the other, about the Marconi Institute incident involving the applicant. But in explanation of his mistake about a name mentioned in connection with another matter he said: "at the time of my examination by the Public Prosecutor I was highly agitated. ta Thac not slept or eaten for two or three days and I was taking tranguillizers", The statement of 29 March 1982 was part of the extradition material sent by the Government of Italy to Australia in connection with its request for extradition. However, it was not tendered to the magistrate by counsel for the Attorney-Ceneral. When the statement was tendered to the magistrate by counsel for Mr Prevato, counsel for the Attorney-General objected to its admission upon the basis that s.17(6A) of the Extradition (Foreiqn States) Act forbids the reception of evidence from the fugitive "to controvert an allegation that the person has committed an act or comission in respect of which the surrender of the person is requested". This provision, it is said, precludes Attorney-General. Subsection (6A) appears to have been inserted into the legislation in order to make 1t clear that the task of che magistrate, in relation to the question whether the evidence is sufficient to justify a trial, is merely to evaluate the case against the fugitive. The magistrate is not to conduct a preliminary trial of the fugitive in which he hears evidence in denial of the allegations from the u J Nw ' ruritive or from witnesses called on his or her behalf. It would be difficult, 1f not impossible, satisfactorily to rescive a contest in relation to guilt by weighing evidence in the form of statements made by absent witnesses against sworn evidence on behalf of the fugitive about which there may be no opportunity even to obtain instructions. The interpretation I have suggested is consistent with an explanation given by the Attorney-General in his Second Reading speech upon the Extradition (Commonwealth Countries! Amendment Bill 1985, which Bill was debated at the same time as the Extradition (Foreign States) Amendment Bill 21985 and which was designed, inter alia, to insert into the Extradition (Commonwealth Countries) Act 1966 a subsection in like terms to s.17(6A) of the Extradition (Foreian States) Act. Mr Bowen said of the relevant sub-clause: "Evicgence that may be ied by a fugit An extradition hearing is not intended determine the guilt or innocence of the fugitive but whether a case exists which would justify the fugitive's trial in the requesting country. Magistrates have in the past permitted fugitives to lead evidence to challenge the merits of the prima facie case scughnt to be established by the requesting country. This amendment will make it clear that such evidence may not be led. The fugitive may of course argue that a prima facie case is not established." ve: to See House of Representatives Weekly Hansard, 20 March 1985, p.596. 33. It ais not inconsistent with the interpretation I have suggested and the intention referred to by the Attorney-General that the magistrate should be entitled to receive material which emanates from, or is adopted by, the prosecution witness who is the maker of the relevant allegation and which qualifies, explains or casts doubt upon that allegation. The prohibition in s.17(6A) is upon the reception of "evidence to controvert an allegation". To "controvert" is to dispute. The notion is one of contest between an allegation made by one person and evidence emanating from another. There may, of course, be some internal inconsistency in the evidence of the accuser -- the whole of which constitutes the "allegation" -- but this merely means that the whole of the evidence must be considered in order to determine what, in the end, is x 1 that person against the fugitive. Counsel for fo I e Q ny fey v ka a RB cr ' cS ral acce Gg) 0) re] tsm n nn) th ¢ that their argument involves the y- y ci oO wm t ie) prop » that, im a case in which a witness hac on page one of his statement named A as the perpetrator of a criminal act and on page two had corrected this fa pua cr mh ification stating that he was mistaken and that the tor was in fact 3, the Attorney-General would be 'S oO at ie}ct % My entitled, in extradition proceedings against A, to tender page one alone and to have page two rejected under s.17(6A). Fortunately, as it seems to me, this is not the law. The question for the magistrate is the nature of the allegation made by the witness, that is the allegation current for nsiceration at the time of the proceedings for committal to prison. If the witness has made only one statement, the magistrate is entitled to have the whole of the relevant statement so that he or she may understand the context and be satisfied that incriminating material in one part is not cut down elsewhere. The same position must apply if the witness happens to have dealt with the matter in two separate statements. The second statement would not be tendered in controvertion of the witness' ailegation but in proof of what the allegation now is. Accordingly, I am of the view that the statement of 29 March was admissible before the magistrate in relation to his evaluation of the earlier statment. The arqument put on behalf of the applicant is that the later statement showed that the earlier stateme was obtained under such circumstances that an Australian court would, in the exercise of 1ts discretion, exclude it from vidence. Reference was made to the well-known line of cases relating to the tender of evidence of admissions made shown that those admissions au fa) Cc u i) pA. 'g 1) ts in Oom g b Dp ts iD = (tr Be ra) y zc a questioning: see Rv Ireland (1970) 126 CLR 321, Bunning v Cross (1978) 141 CLR 54, Cleland v The Queen (1982) 151 CLR 1. 35. There are difficulties about transposing the rules governing the reception of evidence of extracurial admissions made by an accused person -- which rules are based upon the need for fairness to such a person -- to extracurial statements, relevantly admissible in curial proceedings, tendered against others. Fairness to the maker oz the statement is not, in such a case, a relevant consideration. The real question is the reliability of the statement. If .1t appears, perhaps from the subsequent statement, that the earlier statement was made under such circumstances as to be unreliable, it will be appropriate to omit it from consideration. Indeed, if this is known in advance, it may be preferable to reject its tender as being a document having no probative value. But the process 1s one of avaluation of the earlier document in the light of the later document. In the present case the magistrate was entitled tc take the view, as he apparently did, that the contents of the later statement did not require him to discard the allegations mace by Mr Ruggero against Mr Prevato in the earlier statement. Despite the claim of lack of sleep, Mr tuggero did not suggest that everything he had previously iy) » stated was incorrect or that he had not appreciated what he was saying. He corrected certain particular items but, perhaps significantiy, not this allegation. The earlier statement was not made under circumstances which indicated ez Facie unreliability. On the contrary the interview was in the early afternoon in the presence of a lawyer attending to protect the interests of Mr Ruggero. Admittedly, the lawyer may not have known much about the case but he would presumably have intervened if it had appeared to him that Mr Ruggero was in such a condition as to not appreciate what he I reject each of the arguments put by the applicant in answer to the contention that the statement establishes a prima facie case in respect of count 2 and hoid that there 1s such a case. Count 3: prima facie case The charge referred to°in count 3 of the warrant, tw possessing an inflammable substance, is not an offence listeé in Art. II(1)(b) sf the Treaty. UYowever, 1t 15 saic on behalf of the Attorney-General that the alleged offence 15 made extraditable by para.3 of Art.Ii, the offence being punishable by a term of imprisonment of not less than two ears to be m fp a) oth Italy and New South Wales. Thi Pp a]i K u imlow correct: see Art.435 of the Italian Penal Code and s.249 of a The evidence relating to count 3 has already been quoted, in the context of discussion of count 2. That evi dence indicates that it was Mr Ruggero, not the fo ie] Me] ra p- Q m t, who brought the petrol to the Marconi Institute. There is no evidence that, at any stage, the applicant had physicai control of the petrol or that he was aware of the contents of the jerry-can being carried by Mr Ruggero. But 1t is said on behalf of the Attorney-General that this does not matter, that the possession of the jerry-can by Mr Ruggero was possession pursuant to the common purpose between him and the applicant so that such pcssession constituted possession by the applicant. Counsel referred to Tripodi v The Queen (1961) 104 CLR l. One difficulty about this submission is that there 1s no evidence as to any preconcert between Mr Ruggero and Mr Prevatc to sét alight the registers cr to take an wn inflammable substance into the Institute. Mr Ruggero's statement makes it clear that the applicant did not attend the meeting at which the attack was planned; he was not t aw an a member of the group. The applicant was brought into she matter because he was a friend of Mr Ruggero and he was askeé to get a walkie-talkie radio, which Mr Ruggero gave to Mr Paesotto on the day before the planned action. The ement is silent as to what, if anything, Mr Prevato was w el] cr Tv told about the planned activity. Surmise is an insufficient GW m1 basis for a finding of common purpose. The members of the High Court who decided Trinodi emphasised -- at p.7 -- the need to prove preconcert: "When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or wores of one of the parties in furtherance of the common purpose whic constitutes or forms an element cf the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. ... It must be remembered that the basal reason for admitting the evidence of the acts or words of oné against the other is that the combination or preconcert to comm:t the crime 1s considered as implying an authcrity to each to act or speak in furtherance of the common purpose on behalf of the others." A further difficulty about count 2? arises out of the inclusion in the charge of the allegation that the accused possessed the petrol "in order to «ake an attempt on of public safety". This is not mere surplusaze. Article 435 of the Italian Penal Code, upon which the charge is based, provides as follows: "435. Whoever, for the purpose of an attack against public sarety, mar.ractures, acquires or pcessesses dynamite or other explosive, asphyxiating, blinding, toxic or inflammable materials, ... shall >e punished by imprisonment for from one to five years". Although the term is not defined, "public safety" appears to be used in the sense of danger to members of the public; that is to life and limb. There is no evicence of any such danger in relation to the destruction of the registers. The ts) 9. incident toox place on a Sunday evening. So far as the evidence indicates, the building was deserted. Counsel for the Attorney-General submits that the mere lighting of a fire, doused with petrol, would create a risk of a conflagration of the building; which conflagration might attract fire Tighters who might thereby be injured. Perhaps SO; although it woulc be impossible to assess the extent of that risk without more information about the corridor in which the fire was lit. But even if the possibility of injury to fire fighters be conceded, this possibility is not enough. Article 435 requires that the offender have the inflammable materials in his or her possession "for the purpose of an attack against public safety". Count 3, recognizing the necessity for intent, alleges that the Qa li ai petrol was possessed "in order to make an attempt on p " safety". Possession with intent to use in such a manner as may incidentally create a danger of injury to members of the Q yp public is note Ou The evidence does not disclose a prima facie case > in relation toa count 3. Counts 44, 45 and 46: prima facie case Counts 44, 45 and 46 each relate to the incident said to have occurred at the Selvatico Institute on 8 September 1980, by which date the applicant is said to have 40. becom? a member of the Ronde Armate Proletarie. The three counts may be considered together. In a statement furnished to the Deputy State Attorney on 1 March 1982, Walter Buzzi, a person who was charged by a separate warrant, admitted to having "taken parc in the episode that occurred in the 'P. Selvatico' Institute on @ September 1980". He named as "participants il persons including "Prevato", without fuller identizication. Later he saic that "twenty or so others called in for the occasion" also took part in the raid on the Institute. Mr Buzzi attended a meeting which took place a few days before & September, at which "Prevato" was present. He went on: "The meeting took place at about 5 p.m. and the action was discussed and decided selcctively. According to our intention, it was to be 2 emonstrative action within the context of the struggle against selection in the schoois. We decided to gather at li a.m. on the 8th September outside the 'Selvatico* and then to go inside in separate groups: one was to take the teachers in their respective classrooms and concentrate them in the hall; another one was to make the demonstrative 'writings'; another one was to go to the premises where che video terminal was installed, wanting to stop this from working, but I do not know the precise reason for that. It was also decided that each participant should take some garment for purroses of disguise, and a wooden stick. Lastly, we agreed to concentrate in two different places: one qroup of about twenty youngsters was to be in the public gardens by the ''Siamic' coach station; another group, perhaps a bigger one, was to gather in front of, or rather close to the Institute. 41. Tre morning of the 8th September, at the arranged time, I joined the second group, which was shortly afterwards joined by the other one. We all went in together: one grour headed for the classrooms, another one went along the corridors to write up the words, and another one headed for the room where the video terminal was. We were all disguised with handkerchiefs and scarves and were holding sticks. I personally was disguised with a red handkerchief. Among those taking part in the action I recognized all those I have named, because, shortly before entering the Institute, I had seen them with their faces not covered over. We discuised ourselves only the moment we crosseG the entrance to the Institute. On the basis of the task assigned to me, I joined the group (consisting of 10/1? youngsters) supposec to carry out the action in the classrooms, to take the teachers out of them. We went to more or less all the classes and there was no violence. The teachers were anvited to line up in the corriders and in the hall. During these operations, one of us, I believe it was Paesotto, used a whistle to coordinate the actions of the groups. During the phases I have cescribed, some of us stayed by the entrance to prevent anyone from coming in or going out. The action lasted in all siz or seven minutes, When we left the Institute, we spiit up, each of us going his own way." : At a subsequent interview, made on 6 Avril 1982 in prison Eefore the Investigating Judge, Mr Buzzi recanted the allegations made in the statement cf 1 March 1982, and in one later statement; claiming that he had been subjected to psychologicai pressure and had been slapped and punched by a police officer so that he preferred to admit all the charges and to name "the youngsters I knew because I used to meet them in Piazzi dei Signori or at the movement meetings. bt They were the names of persons depicted in the photographs I Lad] ct ce station". Despite certain comments be was shown in the ue] [a] by the Investigating Judge Mr Buzzi maintained this position, asserting that "What I said to the Public Prosecutor in my previous two examinations 1s not true. I am extraneous to the facts with which I have been charged, and I know nothing about said facts". Whatever may be the truth about the circumstances in which the first statement was made, the fact of the recantation makes Mr Buczi's evidence a dubious basis for the making cf any finding about the applicant's participation in the raid at the Selvatico Institute. And the only evidence offered as to the events of that p- th n Gay. Mr Paesotto refers in one of his statements to a meeting, attended both by himself and "Prevato", at which the raid was planned but he asserts -- in contradiction of Mr Buzti o had him (Paesotto) blowing a whistle -- that on the day itself he "had some mishaps at home" and could not go to the Selvatico Institute. But even if weight is given ct o Mr Buzzi's first statement, it establishes no more gainst the applicant than that he participated in the fv lanning of the raid and that he was one of those who 'S assembled outside the Institute immediately before the raid, Nothing is said as to the applicant's subsequent actions. He may have joined one of the three groups -- according to Mr Paesotto it was planned that he would be in the second 43. group which would take the teachers from their classrooms and assemble them in the hall -- but whether he did so i un not shown. Whether he participated in any of the actions referred to in counts 44, 45 or 46 does not appear. There is no orima facie case against the applicant in respect of any cf counts 44, 45 or 46. Evidence sufficient to justify trial My finding that there 1s no prima facie case in respect of each of counts 3, 44, 45 and 46 means that there was not evidence adduced to the magistrate sufficient to justify the trial of the applicant upon any of those counts. But I have held that there is a prima fa nN D ie case in respect ww of count 2 and this makes it necessary to consider whether, a) cr &s counsel for the applica 'S submits, th a evidence would nevertheless be insufficient to justify his trial if the relevant acts had taken place in New South Wales. Counsel for the arplicant puts two submissions in relation to this issue. He says that, in considering the suzficiency of the evidence, the magistrate was required to have regard not only to the probative value of the evidence upon the issue of guilt or innocence but also to the surrounding circumstances which that evidence disclosed and which related to the question whether it would be a proper 44. four ba Be Lad mm ecco regu the applicant now to stand his trial in (03) Qu. G Fh i)Qo a Italy. Counsel points out thet the relevant allec i " U said to have scccurred seven years ago, when the applicant was aged only 16 years and 8 months, chat the applicant was not then a member of the group but became involved only because of his friendship with Mr Ruggero -- who was six years his senior -- that, so far as appears, the darace resulting from the offence was merely the destruction of some records of the Institute and that the applicant has already spent Zour months in prison in Australia in relation to the extradition proceedings. It is inconceivable, counsel suggests, that a person in the situation of Mr o m Prevato would required to stand trial in New South Wales. He referrs to P_v Freeman (25 October 1985, unreported) in which the New South Wales Court of Criminal Appeal had regard to the fact that the relevant conduct took place over Six years previously, and that the appellants had served a Oo stody end undergone a iengthy tr2al, in log Pf if] Ih ts 1D s im fl. HB pa] Qa C declining to order a new trial after setting aside their convictions. T agree with counsel that 1t 1s highly unizkely that a person in the position of Mr Prevato would now be. asked to stand his trial in New South Wales; but it is not clear to me that the magistrate was entitled to take that matter into account. Counsel for the applicant refers to Malaysia-Singevore Airlines Limited v Parker £19723 3 SASR The relevant Zouth Australian statute made registrable such a judament, inter alia, where "the circumstances in which jurisdiccion was assumed by the original court justify recognition of the judament on the basis of comity ...". a Judicial discretion, of questions of policy, Juraistic propriety and international co-operation". In determining that question the Chief Justice considered all of the circumstances surrounding the obtaining of the judgment. However, I do not think that this decision is of assistance in the present case. In Malaysia-Sincapore Airlines the court was required to consider "the circumstances" in which the judgment was obtained. In the present case the question posea cv Art, X1'1) 2s whether there 1s evicerce sufficient za qustifv a trial. <= thana that the relevant inquiry 15 limited to the strength of the evidence to support the charge, that is whether it is sufficiently probative of yunlt to justify a trial. The Article does not require consideration of the question whether the circumstances have regard in considering whether to allow the extradition bo proceed -- both the initiation of extradition proceedings 1see §.1511') and the issue of & warrant for surrender isse s.1i84/21,) are discretionary matters -- but they are not matters for the rT Q fas un ct Dy p tr o The content of the phrase "sufficient to justify his trial" has been considered in a number of cases. In the United Fingdon the view has been taken that it is enough and _ , iP Pw 12744 in which the test applied was "strong or prorab presumption of quilt". Rut whatever be the position in -ne specifies the presently relevant test. That Article requires evidence which would, according to the law of tts part of the requested State in which the magistrate is A juyisciction where the law requires a higher ¢tandard -:f evidence for & committal for trial than a mere prima fac:i2 case that higher standard will apply. That is the position in New South Wales. Although the wording of the relevant statutory provision has altered, it has long been recognised that the test applied in proceedings for committal far trial applies to extradition sroceedings: see Bedaood v Keener of Her Maiestrv''s Fenitentiarv at Malabar £19753 2 NSWLR 144 at p.150. The Justices Act 19902 (NSW) requires a magistrate, th ct ct Q a oOt™ H (2. Q in proceedings for committal fcr trial firs whether there is evidence capable of satisfying a reasonable beyond reasonable doubt: see s.41{(2) read with 5.41(8). If that question is answered affirmativeiy, certain procedures are to be taken including the provision of an opportunity ta the defendant co give evidence. Upon completion of those rrocedures the magistrate must determine whether a asonabise jury, properly instructed, "would not be likely Section 41(6) was amended following the decision of in Wen the New South Wales Court of Appeal 2 entworth v Rogers [i984] 2 NSWLR 422. In Carlin v Chidkhunthod (13 November 1985, net reported: O'Brien C.3. of Cr.D analyzed the yecuirement of the present subsecticn. His Honour referred to the necessity for the magistrate to give attention "to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of the witneszes who gave it" but he reiectecé the arcument that the word "likely" aimporzved an inquiry as to the probability af a conviction. He went on: "Py this stage of the proceedings the magistrate has determined that upon all the evidence for the prosecution, if believed, a jury could reasonably find the offence proved beyond reasonable doubt. Having heard all that evidence and then the evidence for the derence he is to make a forecast of the effect all the evidence would have upon such a jury. eee In determining then whether a defendant should De committed for trial the function intended hy s.41(6) as best serving the interests or competing interests of all concerned is, in my opinion, that the defendant should be Gischarged when an opinion can affirmatively be reached that there is no real chance or prospect of conviction but that in the absence ef such an opinion the defendant should be cormitted." Hi ~) ¢. i) yDD uw fei)fom a ov m D fan Loa at) oO o ae he ow <q be oy a eim Oo Fh al) ig a 'D Bp Against the applicant in respect af count 2 1s 'that cantained in the statements oF Mr Puacere and Mr Paesatto. cCime -- some three years after the incident at the Marconi Institute. That fact, in itself, must affect their weight The jeponents are each scersons accused br the same warrant same offence. Tree evidence adduced to the magistrate does not indicate whether they have been dealt with for their alleged offence. It cannot be said that, in a trial held under New South Wales law, they would be compellable witnesses. Each is an accomplice; indeed a person much rion and plannine of th il tt) fo mm ged a ct . (In Davies v Director of t 543 3C 378 at p.357 Lord Simonds, L.c., speaking far the House of Lords, approved Rv Baskerville Ci9i6]1 2 KE 658, in which the Court of Criminal Fd law relating to the evidence of Appeal set out at p.,6€2 th cr @ accomrlices in these rms "There is na doubt that the uncorroborated evidence of an accomplice is admissible in law: ... But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prasoner on the uncorroborated vestimony of an ccomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence: ... This rule of practice has become virtually equivalent to a rule of law, and since the Tourt of Criminal Appeal Act came into qoeration this Court has held that, in che absence of such a warning bv the judge. the conviction must be quashed: ... IF artver the rraper caution by che judge the jury nevectheless convict the prisoner, this urt w1ili mot quash the conviction merely upon the ground that the accomplice's testimony was unecarroborated. It can but rarely happen that the jury would convict in such circumstances." The Court went on to discuss what canstituted corroborative evidence; concluding at p.667 with this statement: "We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that 1s, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." Counsel £f OQ Ly ct by i) Attorney-General arques that the statement cf Mr Paesotto furnishes corroboration of the statement of Mr Ruggero. I do not think that it does. I put to one side the deficiencies in that statement which I have already noted: the lack of proper identification of the person referred to as "Prevato", the lack of a date for the incident and the lack of any indication that Mr Paesotto himself saw Mr Prevato on the evening in question. If these matters be assumed against the fugitive, there is material tending to confirm that on an unidentified Sunday evening Mr Prevato entered the Marconi Institute in company with Mr Ruggero; Mr Paesotto standing watch outside with Miss oy Griggio. Sut there is no admissible evidence in Mr B#esotto''s statement to show "that the crime has been committed", still iess to show that Mr Prevato committed it. And, in any event, a jury would have to be warned that Mr Paesctto was himself an accomplice so that even his corroboration must be treated with extreme caution. Given the age, sources and lack of particularity of the statements reasonable jury, properly instructed, would, in my su opinion, be likely to regard the evidence they contained as ansufficientiy crobative to warrant the conviction of the applicant on count 2. In the words of O'Brien C.J. in Cr.D. the aporopriate opinion is that there would be "no real chance or prospect of conviction" upon this evidence; so est at Of eat out in s.41(6 in ot by D rey - wu = fu uy bs w ct t, yu er w py i} tg ran Way re) a ite} ct pa i) ct the Justices Act would decline to commit. It follows that the evidence does not satisfy Art.X1 of the Treaty. By Py Offence of a political character" Section 13(1) of the Extradition 'Foreion States} Act provides that a verson is not liable to be surrendered to a foreign state "if the offence to which the requisition for his surrender relates is, or is by reason of the nN ircumstances in which it is alleged to have been committed or was committed, an offence of a political character or if the requisition for has surrender has in fact been made with a view to try or punish him for an offence cof a political character". Article VIII of tne Treaty between Australia ane Italy contains a@ similar, althcugh net identical, The wording of s.13 of the Extradition (Foreicn Etates) Act is similar in substance to that contained in Pp cr oO p w f ba) Q ren oO A ne Uni : ct et fu) fu fay at ie (2), B Le cr H oO ~J Oo oO hh ct B There have been a number cf decisions in English courts relating to the application of that provision but counsel for the Attorney-General submit that it 1s unnecessary for the Court, in the present case, to consider those authorities because, in this case, the question whether any of the alleged offences was an offence of a political 52. . , character 1s a matter for che Attorney-General alone, and net For the Court. Counsel draw attention to the scheme of the Act, pointing out that , if at the relevant time the Attorney-General is of the opinion that the relevant offences are of a political character, he or she is forbidden both ta initiate extradition proceedings in an > Sustralian court (s.i15/2)) and to issue a warrant for the sur Ln ender ef the fugitive (s,18A(1)). Counsel concede that the magistrate is entitied to have regard to the question whether the offence 1s one of a political character ina iz case where the fugitive has adduced evidence to that effect. This concession is made unon the basis that s.,17(6)(b) wermits evidence to be adduced by the fugitive on that permission which would be pointless if the v in WaD ~ magistrate was required to disregard that evidence. Put it Q s said that where no such evidence is presented the magistrate -- and on review this Court -- is not concerned T do not accept this construction of the Act. ob cr o Section 12(1) provides that a person "is not liable surrendered" for extradition if the relevant offency is an offence of a political character. By s.17(6)(b) the magistrate is required to be satisfied, before making an order for committal of a person, that the person "is liable to be surrendered". This means that, in any case in which any claim is made of non-liability to surrender pursuant to 7 ' , c { i hr e it ALR bofe) st CnE Fiiey and Eutier at (1984) 5 "= magistrate must be satisfied that the claim is unfounded and that or ' re UY person 1s in law liable to be surrendered. For the Purposes of determining that matter the magistrate is required to consider "any evidence properly adduced by the person"; Dut it is net a pre-condition of such determination that evidence hes been adduced. The sclitical character of the relevant alleged offence may appear from the evidence adduced to the magistrate on behalf of the Attorney-General; cf. the comment cf Lord Goddard C.J. in R y_ Governor of Prixton Prison; ex parte Kolezynsxi £1955] 1 OB 549 at p.550, It is true, as counsel for the Attorney-General points out, that it is likely that the o Fh fa) ay mo Attorney-General will have had all of this material b him at the time when he decided to institute the extradition weoceedings so that, if no evidence is adduced on behalf of the fugitive, the magistrate is placed in the position of being asked to review the opinion cf the Attarney-Genera upon that point. But there 1s ne anomaly in that; it is unrealistic to expect that the Attorney-General would have had the sare opportunity as the magistrate for unhurried Attorney-General would lack the benefit of argument on behalf of the fugitive. The policy of the Extradition .\Foreian States) Act is to ensure that, at each stage of the extradition process, consideration is given to any material suggesting that the offence was of a political character; fo Us = fu an ur ayy Ve ian lex my | al mnOo c ie) tas U0 ia fay nD b? - Hh eh a bs n Schtraks at 2.586 in relation to the similar scheme of the United Kingdom Act: "it seems to be the evident intention of the statute that che issue" (of political character) "should be considered as & substantive matter at any stage by any authority, magistrate, court or Secretary of State, which has 4a duty to rform in relation to the extradition". In that case fresh 'S oO b vid iy mee upon that issue was permitted to be adduced even in the House of Lords. The question whether the offences in relation to which the extradition of Mr Prevato is sought are offences of & political character fell within the jurisdiction of the magistrate. Upon an application for review of the magistrate's decision it is a matter for this Court. statute was In re Castionz: £18913 1 93 145, & case in which extradition was scught upon a charge of murder. The prisoner was said to have participated in an armed znsurrection against the government of the canton of Ticino in Switzerland in the course of which he shot 4 wember of ouncil of the canton. The Divisional Court Tr ye D A wm co Mt + p r upheld the fugitive s claim that the offence was one of a political character. All members of the Court emphasized that 1t was not enough that the alleged offence had taken place in the course of a political disturbance -- a person might use such a disturbance as a cloak for an act of per erent re ee een Se 8 arene tte " ity that the crime was i La Bb. <4 he ct m aft th ia] oD=] c fat) is) " WY ~ @ i) fer | | lox Pe ct political if committed as part of a political activity and with @ political object in mind. Each member of the Court accepted that an offence was of a political character if, with the requisite object, it occurred in the course of a political disturbance. No attempt was made in Castioni to frame an exhaustive definition of "offences of a political character". Weither was it necessary to determine whether at was an essential characteristic of such an offence that there be a disturbance cf the peace or that there be political parties contending for power; both features were present in Castioni. The latter question, however, arose tJ three years later in Re Meunier £1894] QP 415; a case in wnich France sought the extradition of a self-confessed of wilfully causing certain explosions, ra fen cecasioning death. The vivisional Court he that, in order to constitute an offence of a political character there must Meunier was assaciated was opposed to all governments, this condition was not fulfilled. in more recent tames the narrow interpretation adoptec in Meunier has been rejected. Thus in Kokczynski oli ct the Divisional Court upheld a claim of 1cai character 'D made by seven members of the crew of a Polish fishing trawler who took charge of the ship whilst it was in the North Sea -- assaulting and/or imprisoning certain officers in the process -- and brought it into port at Whitby, where they sought political asylum. In answer to extradition proceedings brought by Poland, based upon various charges of assault, wounding and damage to property, the seven men arqued that the offences were of a political character in that it was a rebellion against the political officers commanding the ship; or alternatively that the requisition had been made with a view to trying or punishing them for an offence of &@ political character. Notwithstanding that Poland was a one party State, and that the seven men were rot members of & political group, they succeeced on the second around. The Court was satisfied that the offences for which the men would be tried were the offences alleged in the extracition proceedings -- all of which were m fu = ct raditable offences and not cbviously political in a, hn al n 1D ts ! o c ct qa f ts ju ct act , having regard to evidence as to the . un v recording of their conversations and the circumstanc Which the rebellion occurred, the prosecution would in fact cution. be a political pros wD received extensive attention in the House of Lorés in Echtraks. The fugitive claimed that the offences n of perjury and child stealing alleged against him by Israel fell within this description because they arose out of his ntervention to ensure that the child, his nephew, was ran tr ty is) go Ww ht up in the orthodox Jewish faith. Eoth the issue of rs iD ra case itself were matters of cr o oO Q fous upbringing and political controversy in Israel but the fugitive had acted merely out of personal conviction and not as a member of any political party. His claim cf political character fazled. Lore Reid pointed out, at p.581, that the list of extraditabie crimes did not include any offences which were overtiy political, so that the question for the court must espoused by the fugitive was good or bad -- and compare the observation of Denman 7g, in Castioni at p.158 that the court is not concerned wath the wisdom of carrying out the levant act in the advancement of that cause ~-- but that v 1D + pel ct ro) ct 'D a ative and purpose of the accused in committing offence must be relevant and may be decisive". His Lordship went on to reject the necessity for open insurrection or for an intention to change the compesition of the government: 58. ° An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compei & government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it snould be necessary that the refugee's party should have been trying to achieve power un the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it." Viscount Radcliffe thought that the concept of a political offence should be limited to opposition between citizen and government; that it is not enough that there be a that lies behind the political character' is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. political' in this context 'political' in such rhrases political asylum' O ctl ts rers omens) its ordinary, what I may ternational, aspect. oe It does indicate, requesting State 1s after him for reasons her than the enforcement of the criminal law The analogy of is with as 'political or 'political think, that call its common or It is this idea that he judges were seeking to express in the two early cases of In re Castioni and In re Meunier when they connected ozfence with an uprising, a the political disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that , Lay] ite) onnection. It iz nct departed from by taking ral view as to what is meant by i bance or these other words, proviced that the idea cf political oppositicn as between fugitive and requesting State is not lost sight of: but it would be lost sight of, iI think, 1f one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sarts or cantending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no réason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders." I have referred extensively to Schtraks because this decision, and especially the quoted passage from the speech of Viscount Radcliffe, vas adopted by the High Court of Rustralia upon the only occasion, of which I ar aware, that any Australian court has had to consider the nature of an offence of a political character: The Queen v_ Wilson; ex parte Witness T (1976) 135 CLR 179. In that case a prospective witness sought to proh taking evidence, under s.27 of States) Act, im relation to a pending criminal trial in the 7] i) a n ral log Repu lic of Germany. The offences were alleged have occurred in White Russia during the wartime occupation of that area by Germany. Barwick C.J., with whom Gibbs Stephen JJ. agreed in terms and Mason J. agreed in and 60. fa) substance, aprlied the words cf Viscount Radcliffe ta a ct y oO a A fv ahy dismis p.184 his Sonour said: x cro hho s 'D , the offences of which Albert Kruger is cused are founded upon acts which are not nown to have been done in any sense by way , or in performance of, political opposition him to Germany as it formerly was, or to t Germany which now prosecutes him: nor is shown that they were done in the course of olitical dasturbance." 2a n wrPeao om fm 'S I will refer shortly to two recent English D decisions cited by counsel: Rv Governor of Pentonville Prison; @x parte Cheng £1973] AC 3931 and Rv Governor of Pentonville Prison; ex parte Budlong £13803 1 WLR 1110. Cheng was a case in which the United States of America sought the extradition of a Taiwanese citizen, resident in the United States, who was a member of an organization opposed to the ruling Nationalist Farty government in Tsiwan. My Cheng was accused of the attemptei murder of the Taiwanese vice-premier durins a visit of the latter to the United States. By majority, Lord Hodson, Lord Duplock and Lord Salmon, Lord Wilberforce and Lord Simon of Gla:sdale the House of Lords rejected his claim that the ri Hn in na fa rR bn} ce} offence was one of & political character. The majority applied the words cof Viscount Radcliffe in Sentraks to hold that ther= must be conflicz upon a political matter between the fugitive and the government of the recuesting State. In the case under consideration the fugitive had no quarrel with the United States government -- the requesting State -- but only with the Taiwanese government. on a The facts of Cheng are remote from the present case but the speech of Lord Diplock 1s interesting for its empnasis upon single purpose. At ».945 his Lordship said: "So, even apart from authority, I would hold that prima facie an act committed in a foreign state was not 'an offence of a political character' unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there." Budlong was also a case in which the United States against the Church by those agencies. The Divisional Court rejected the claim of political character, saying at p.1124: the political control or government of the United States; they did so to further the interests of the Church of fEcientology and its members..." Counsel for the Attorney-General points out chat in Budlong there was no reference to the object of changing government policy; but the case cannot be regarded as authority for the view that such an object may not be sufficient to institute an offence of a political character. This would be inconsistent with the speeches in both Schtraks and Cheng. The evidence in the present case, emerging from the statements of all three witnesses, was that the acts in ad occurred in the oO yelation to which Mr Prevato is charg course of a long and bitter campaign to induce a change in educational policy in government schools in Padua. The evidence does not show whether these schools were conducted by the national government or by a provincial or local government but it is not an essential requirement of a political offence that the relevant contest be with the national government. Castzoni shows that. The early debate mn Qmn S3 actr ra aA un ft) Rr iy LH fu ta] a fay a P wm bs <q it) H 'dq La) om m QO ray <q iD Q. pHfam la a i)fii) WQ o cr bh I o i be] Schtraks; it 1s enough that there be a concerted campaign to change government policy. Not every offence committed in the course of opposition to government policy is a political wo mm ct offence. There must be, at least, an organized, prolonged campaign involving a number cof people. The offence must be directed solely to that purpose; it must not invelve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the ren] Lee TANPARIGN May De a palitical cfifence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be. In the present case these requirements are all satisfied. The matter of purpose does not depend only upon the statements of the three co-accused men. It is fundamental to the case allegec by the Republic of Italy against Mr Prevato. Not only is there no suggestion of private purpose; count 1 of the warrant alleges that the 11 persons named therein carried out the alleged offences "in execution of a program adopted by the 'Ronde Armate Proletarie' of which they were members, which program was zntended to oppose 'selection' in schools". The incidents at the Marconi Institute and the Selvatico Institute were not acts preliminary or incidéntai to the campaign; they were active acts of protest, part of the political campaign itself. Once 1t 1s determinec that there is no necessity for the relevant campaign to be one seeking a change in government, that it 1s enough that the campaigners seek a changes of gqcvernment policy, there is no valic distinction between this case and Castioni. To adopt the words cf Lord Reid in Schtraks, this was a case of "the use cf force ... to compel a government to change its policy" and, upon the evidence and the allegations, for no other purpose. For 64. 7 ycharacter, so that -- sven if there were evidence sufficient: to justify his trial for those offences -- his surrender may not lawfully be orcered,. Orders For the reasons I have set out it seemed to me proper, on 31 January 1986, to make orders in Application G.6 of 1986, in respect of each of the five counts in % elation to which the applicant was committed to prison, it be declared that the evidence adduced before Mr cr fom fu cr Mi wm ty alski was not sufficient to justify his trial if the various acts or omissions constituting the alleged offences had taken place in New South Wales and that the offence was an offence which, by reason of the circumstances in which 1t Was committed, was an offence of a political character, in respect of which the applicant was not liable to be surrendered. I ordered that the deciszon of Mr Miszalski be ut set aside and in lieu thereof that the applicant be released and that the Attorney-General pay the applicant's costs. As I have mentioned, Application G.16 of 1986, 1s d2rected to a limited issue: the question whether the magistrate accorded natural justice in relation to the question whether the applicant should be imprisoned, as distinct from being held in some other form of custody pending the decision of the Attorney-General. In view of 65. the views I have formed, and the orders I have made, in matter G.6 of 1986 that question is now academic. Tf propose to express no view on the question raised but simply to order that Application G.16 of 1986 be dismissed with no order as to costs. I certify that this and the sixty-four (64) preceding pages are a true copy of . the Reasons for Judgment herein of his Honour Mr. Justice Wilcox. Associate: Voi ne A He Ltfor, Date: 6 February 1986 Counsel for the applicant: Mr S M Littlemore Solicitors for the applicant: Messrs Malcolm Johns & Company Counsel for the respondent, Mr D Rofe, QC with the Attorney-General for Mr J Agius the Commonwealth of Australia: Solicitors for the respondent, ~ The Director Public the Attorney-General for Prosecutions the Commonwealth of Australia: Solicitor for the respondents, Mrs J Elliston on behalf of The Governor, Metropolitan The Crown Solicitor for Remand Centre and Richard New South Wales Peter Miszalski, SM: Dates of hearing: 24 and 31 January 1986