[31 Nor Po Diskieetiony IN THE FEDERAL COURT OF AUSTRALIA ) } WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WA G 125 of 1986 » ) GENERAL DIVISION ON _APP. FROM THE FED: COURT OF AUSTRALIA CONSTITUTED BY A SINGLE JUDGE BETWEEN LAURENCE ETHEREDGE Appellants AND: KENNETH MOORE ARTHUR JAMES HEMPEL and First Respondent DIRECTOR OF PUBLIC PROSECUTIONS MINUTE OF QRDER CORAM : Fox, Neaves and Wilcox JJ. DATE OF ORDER : 22 May 1987 WHERE MADE : Perth THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent of the appeal, Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Second Respondent costs of the second [ong , IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WA G 125 of 1986 ) GENERAL DIVISION ) ON _APP FROM THE RAL COURT OF AUSTRALIA CONSTITUTED BY _A SINGLE JUDGE BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Appellants AND: KENNETH MOORE First Respondent DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent CORAM: Fox, Neaves and Wilcox JJ. DATE: 22 May 1987 THE COURT: This is an appeal from a judgment given on 10 December 1986 by this Court constituted by a single Judge (Burchett J.) upon an application made by Arthur James Hempel] and Lawrence Etheredge ("the appellants") pursuant to s8.18(1) of the Extradition (Foreign States) Act 1966 (Cth) ("the Act") to review the validity of a decision made by a Magistrate ("the first respondent") whereby the appellants were committed to Prison to await the warrant of the Attorney-General of the Commonwealth for their surrender to the State of Israel. His Honour dismissed the application and, pursuant to 3.18(3) of the Act, made an order confirming the decision of the first respondent in relation to each of the appellants. The second respondent to the appeal is the Director of Public Prosecutions. The only ground of appeal argued before the Court was that the learned primary judge erred in law in holding that the first respondent had not denied the appellants natural justice in refusing applications made on 14 and 31 July 1986 for the adjournment of the proceedings then before hia. The facts which are relevant to the determination of the appeal are in a short compass, A requirition was made to the Attorney-General of the Commonwealth by the State of Israel for the surrender of the appellants to stand trial on charges under s.393(2) of the Penal Law 5735-1977 of the State of Israel of stealing by an agent. That requisition was made in pursuance of the Treaty between Austraifa and the State of Israel ("the treaty") that came into force on 3 January 1976. A copy of the English text of that treaty is set out in the Schedule to the Extradition (State of Israel) Regulations ("the regulations") made under the Act. By virtue of ss.10 and 11 of the Act and regulation 3(a) of the regulations, the Act applies in relation to the State of Israel subject to the treaty. Article III of the trealy specifies the categories of offences in respect of which extradition will be granted. Article KI provides for the manner in which a request for the extradition of a person is to be made and the material which is to accompany the request. The Article provides, inter alia, that, if the person whose extradition is sought is accused of an offence, the request is to be accompanied by a duly authenticated warrant for the arrest of the person, issued by a competent authority in the requesting State, and "such duly authenticated documents as, according to the law in force in the part of the territory of the requested State in which he is found, would, or would when taken with any other evidence that is, or will be, available in the requested State, constitute sufficient evidence to justify his being put on trial if the act or omission constituting the offence had occurred in that part of that territory". A document that, in accordance with the above provision, accompanied a request for the extradition of a person is to be admitted in evidence in any proceeding in the requested State for the extradition of the person (Art.XI(2)). Article XIII prescribes the circumstances in which, for the purposes of the treaty, a document is to be deemed to be duly authenticated. The property alleged to have been stolen is the vessel "Orionia" in which the appellants arrived at Albany in the State of Western Australia on 22 January 1986. It is alleged that the vessel was at the relevant time owned by an Israeli corporation, Orionia Limited and that it was removed by the appellants from its berth at Eilat, Israel without the owner's permission. On 23 January 1986 the appellants were arrested on warrants issued pursuant to s.16 of the Act. They were brought before a Magistrate at Albany and were remanded to the Court of Petty Sessions at Perth. They were released on bail. The hearing of the proceedings was fixed to commence on 8 May 1986. The hearing was, however, adjourned until Monday, 14 July 1986. When the matter was called on for hearing before the first respondent on that day, counsel for the appeliants applied for an adjournment for three months to enable the appellants' legal advisers to study the documentary material setting out the acts in respect of which their surrender was requested and to pursue enquiries in Israel. The basis of the application for the adjournment was that copies of part of that material had been made available to the appellants' legal advisers only on Friday, 11 July 1986 and that copies of other material had been made available only half an hour before the commencement of the hearing. The first respondent refused the application. The hearing then proceeded and continued on 15 July 1986. The hearing was then adjourned until 31 July 1986 and concluded on 1 August 1986 when the first respondent committed the appellants to prison to await their surrender to the State of Israel. On 31 July 1986, counsel for the appellants made a further application for an adjournment. This application 5. related to the inclusion in the authenticated documents before the first respondent of a copy of the particulars of the directors and shareholders of Orionia Limited as appearing in the records maintained by the Registrar of Companies in Israel. In supporting the application, counsel for the appellants made it clear that he was not objecting to the document as such, by which he must be taken to have conceded that it was a document properly authenticated in accordance with the treaty between Australia and the State of Israel and, therefore, admissible in evidence (s.26(1) of the Act). The adjournment was sought to enable the appellants to seek evidence to the effect that the particulars of the directors and shareholders set out in the document could not properly have been procured from the Registrar of Companies in Israel and that they were incorrect. The appellants thus sought the adjournment to enable them to introduce, if it were available, evidence contradicting part of the authenticated material on which the request for extradition was based. The first respondent refused the application. The primary judge concluded that no breach of the rules of natural justice had occurred by reason of the refusal of the applications for the adjournment of the proceedings. His Honour recognised that the decision whether to grant or refuse an adjournment was a matter within the discretion of the first respondent in the exercise of which he was required to weigh the various considerations of convenience, delay and justice. In the light of the circumstance that the proceedings had been adjourned from 15 to 31 July 1986, giving counsel a significant period within which to consider the documents and any submissions he wished to put in respect of them, his Honour considered that no ground for relief had been made out based on the short time which had elapsed between copies of the documents being made available to counsel and the commencement of the hearing. His Honour, in refusing relief in relation to the later application for an adjournment, relied on 5.17(6A) of the Act which provides: "(6A) A person referred to in paragraph (6)(d) is not entitled to adduce, and a Magistrate is 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 is requested." Paragraph 6(b) refers to the person whose extradition is sought. His Honour said: ",.e. the avowed purpose of the applicants came into direct collision with the terms of s.17(6A). Counsel conceded he was attempting to draw a fine distinction between evidence to controvert an allegation and evidence to deprive a document, the contents of which supported the allegation, of authenticity. In my opinion, the suggested distinction is too fine spun to have a place in the construction of the sub-section, the practical purpose of which is clear." His Honour added: "But. in any case, if the particular document had been deprived of credit, there was ample other evidence to support the accuracy of its contents." We find ourselves in complete agreement with the conclusions of the primary judge. The first respondent, in considering each of the applications for adjournment made to him, was entitled to have regard to the purpose for which the adjournment was sought and the utility of granting any such adjournment. While the opportunity which counsel for the appellants had to consider the documents prior to the commencement of the hearing was very limited, we are unable to conclude, having regard to the overall conduct of the matter, that any procedural unfairness to the appellants has been established. Before us, counsel for the appellants sought to construe 8.17{6A) in a way which would give to its language a much more limited operation than it properly bears. The object and purpose of the sub-section is plain. The allegation made against the appellants was that they had commilted an act of theft by removing the vessel from the port of Eilat without the owner's permission. It was in relation to that act that their surrender was requested. Under s.17(6A) they were not entitled to adduce, and the first respondent was not entitled to receive, any evidence to controvert that allegation. The allegation included an assertion as to the ownership of the vessel at the relevant time. The material which the appellants hoped to obtain during the requested adjournment was plainly directed to controverting that part of the allegation. Such material, even if obtained, could not have been placed before the first respondent because of the provisions of the sub-section. There was, therefore, by the granting of the adjournment. no utility to be served The appeal is dismissed. The appellants must pay the second respondent's costs. Counsel for the applicants : Solicitors for the appellants £ I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment in of the Court. oiate Dated: 22 May 1987 Mr P. Johnston and Mr J, Courtis Lohrmann Tindal & Guthrie No appearance for the first respondent Counsel for the second respondent 3 Solicitor for the second respondent : Date of hearing $ Mr R.J.M. Anderson, 0.C. and Mr K.B. Bates Director of Public Prosecutions 20 May 1987