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JUDGMENT No. 371.7..88._.
CATCHWORDS
Extradition -— Extradition (Foreign States) Act 1966 (Cth) -
Treaty of extradition between Australia and Republic of
Austria - Regulations applying Act to Republic of Austria
subject to Treaty and Protocol - Whether evidence necessary
that Treaty and Protocol in force - Relationship between
terms of Treaty and statutory provisions - Whether documents
duly authenticated and therefore admissible in evidence —
Whether duly authenticated material contained a statement or
description of the offence for which extradition sought —
Whether acts or omissions relied upon, if committed in
Victoria, would constitute a criminal offence in that State
- Whether it was open to the Magistrate to be satisfied that
person liable to be surrendered - Whether a person holding
office as a Magistrate in and for the State of Victoria
authorized to exercise powers under the Act ~ Comments upon
form of warrant issued under the Act.
Extradition (Foreign States) Act 1966 (Cth), ss.4(1A), 10,
11, 12, 13, 17, 18, 24, 26
Extradition (Republic of Austria) Regulations, reg.3
a
HANS HEINZ KLEPP v. WILLIAM PATERSON GIBB & ANOR
V G 446 of 1987
Sweeney, Jenkinson and Neaves JJ.
18 July 1988
Melbourne
cy
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
)
)
) No. V G 446 of 1987
)
)
THE COURT:
DATE OF ORDER
WHERE MADE
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: HANS HEINZ KLEPP
Appellant
AND: WILLIAM PATERSON GIBB
First Respondent
REPUBLIC OF AUSTRIA
' Second Respondent
MINUTE OF ORDER
Sweeney, Jenkinson and Neaves JJ.
18 July 1988
Melbourne
THE COURT ORDERS THAT:
1.
2.
The appeal be allowed.
The orders made on 18 November 1987 be set aside
and, in Lieu thereof, 1t be ordered -
(i)
(ii)
(iii)
that the decision of the first
respondent (William Paterson Gibb) made
on 7 August 1987 and the warrant issued
by him on that date be set aside;
that the applicant (Hans Heinz Klepp) be
released; and
that the second respondent (the Republic
of Austria) pay the applicant's costs of
the application for review.
3. The second respondent pay the appellant's costs of
the appeal.
Note: Settlement and entry of orders is dealt with in Order 36
o£ the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
)
)
VICTORIA DISTRICT REGISTRY ) No. V G 446 of 1987
)
)
GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: HANS HEINZ KLEPP
Appellant
AND: WILLIAM PATERSON GIBB
First Respondent
REPUBLIC OF AUSTRIA
- Second Respondent
CORAM: Sweeney, Jenkinson and Neaves JJ.
DATE: 18 July 1988
REASONS FOR JUDGMENT
ry
THE COURT:
On 7 August 1987, the first respondent, William
Paterson Gibb, a person holding office as a Magistrate in the
State of Victoria, by warrant issued pursuant to s.17(6)(c) of
the Extradition (Foreign States) Act 1966 (Cth) ("the
Extradition Act"), committed the appellant, Hanz Heinz Klepp,
to prison to await the warrant of the Attorney-General of the
Commonwealth of Australia ("the Attorney-General") for his
surrender to the Republic of Austria. The appellant applied to
this Court under s.5 of the Administrative Decisions (Judicial
Review) Act 1977 (Cth) ("the Judicial Review Act") for an order
of review in respect of the decision of the first respondent.
The appellant also applied to this Court pursuant to s.18 of
the Extradition Act for a review of the validity of that
decision.
The application under s.18 of the Extradition Act was
heard before the Court constituted by a single judge. On 18
November 1987, judgment was delivered and orders made
dismissing the application and confirming the decision of the
first respondent. From those orders the present appeal is
brought.
Where the Extradition Act applies in relation to a
foreign state, every fugitive from that state is, subject to
the Act and to any limitations, conditions, exceptions or
qualifications to which the application of the Act in relation
to that state is subject, liable to be apprehended and
surrendered to that state as provided by the Act ({s.12). The
reference to a fugitive from a foreign state is to be read as
including a reference to a fugitive accused of an extradition
crime that is alleged to have been committed at a place in that
state or within the jurisdiction of, or of a part of, that
state (s.4(2)). Section 4(1A) provides that an offence against
the law of, or of a part of, a foreign state for which a
requisition for the surrender of a person has been made to the
Attorney-General is an extradition crime for the purposes of
the Act if, but only if -
"(a) the maximum penalty for the offence is
death or imprisonment for not less than
12 months; and
(b) had a relevant act or omission by the
person taken place, at the time when the
requisition was made, in, or within the
jurisdiction of, the part of Australia
where the person was found, that act or
omission would have constituted an
offence against the law in force in that
part of Australia the maximum penalty
for which is death or imprisonment for
not less than 12 months."
Section 4(1B) provides:
"The reference in paragraph (1A)(b) to a
relevant act or omission by a person is a
reference to -
(a) an act or omission by the person -
(i) which is, in or in connection
with the relevant requisition,
alleged to have taken place; or
(ii) of which evidence is produced in
connection with the relevant
requisition; or
(b) any act or omission that is equivalent
to an act or omission referred to in
paragraph (a)."
Section 10(1) of the Extradition Act provides:
"Where, after the commencement of this Act,
an extradition treaty (including an extradition
treaty that affects or amends an earlier
extradition treaty) comes into force between
Australia and a foreign state -—
(a) if this Act applies in relation to the
foreign state at the time of coming into
force of that treaty ~ the regulations
may provide that this Act applies in
relation to that state after that time
The
subject to such limitations, conditions,
exceptions or qualifications as are
necessary or desirable to give effect to
that treaty and are specified in the
regulations;
(b) if this Act does not apply in relation
to the foreign state at the time of
coming into force of that treaty - the
regulations may provide that this Act
applies in relation to that state after
that time and may also provide that it
so applies subject to such limitations,
conditions, exceptions or qualifications
as are necessary or desirable to give
effect to that treaty and are specified
in the regulations."
reference to "the regulations" is a reference
to
regulations made pursuant to the general regulation-making
power conferred upon the Governor-General by s.31 of the
Act.
Section 10(2) provides:
"The limitations, conditions, exceptions or
qualifications referred to tin sub-section (1)
may, in relation to a foreign state, be expressed
in the form that this Act applies in relation to
that state subject to the extradition treaty
referred to in that sub-section or, if that
extradition treaty affects or amends an earlier
extradition treaty, subject to that earlier
extradition treaty as affected or amended by the
later extradition treaty."
Section 11 provides:
"(1) Subject to sub-section (2), where the
regulations for the time being in force provide
that this Act applies in relation to a foreign
State, this Act applies in relation to that
state.
(2) Where the regulations for the time being
in force provide that this Act applies in
relation to a foreign state subject to any
limitations, conditions, exceptions or
qualifications, this Act applies in relation to
that state subject to those limitations,
conditions, exceptions or qualifications."
Subject to certain limitations upon the power which
are not material to the present case, where a requisition
for the surrender of a fugitive who is, or is suspected of
being, in Australia is made to the Attorney-General by a
foreign state, the Attorney-General may, in his discretion —
if a warrant for the apprehension of the fugitive has not
been issued under s.16 - by notice in writing in accordance
with the prescribed form, state that the requisition has
been made and authorize the issuing by any Magistrate of a
warrant for the apprehension of the fugitive (s.15(1)(a)).
Where a Magistrate is authorized by the Attorney-General by
a notice under s.15(1)(a) to issue a warrant for the
apprehension of a fugitive and the Magistrate is informed,
by information on oath or affirmation, that a warrant for
the apprehension of the fugitive has been issued in a
foreign state and is in force, the Magistrate is required to
issue, for the apprehension of the fugitive, a warrant in
accordance with the appropriate prescribed form (s.16(1)).
A person who is apprehended under a warrant issued
in pursuance of s.16 is, unless he is sooner released, to be
brought as soon as practicable before a Magistrate in the
State or Territory in which he is apprehended (s.17(1)).
The person may be remanded either in custody or on bail
(s.17(2)). Sub-sections (6) and (6A) of s.17, so far as
material for present purposes, provide:
"(6) I£ 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) .... and
(a) there is produced to the Magistrate -
(i) 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 a warrant;
(B) a duly authenticated
statement in writing
setting out a description
of each offence for which
the surrender of the person
is requested and the
penalty applicable to each
such offence; and
(C) a duly authenticated
statement in writing
setting out all the acts or
omissions in respect of
which the surrender of the
person 1s requested; or
(212i) 1...
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 is satisfied, after
taking into account any evidence
properly adduced by the person, that the
person is liable to be surrendered to
the foreign state that made the
requisition for the surrender,
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
(d) ....
but otherwise the Magistrate shall order that the
person be released.
(6A) A person referred to in paragraph
(6)(b) 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."
Section 26 provides:
"26. (1) In a proceeding under this Act, any
document that is duly authenticated is admissible
in evidence.
(2) A document is duly authenticated for the
purposes of sub-section (1) if -
(a) it purports to be signed or certified by
a Judge, Magistrate or officer in or of
a foreign state; and
(b) it purports to be authenticated by the
oath or affirmation of a witness or to
be sealed with an official or public
seal of the foreign state or of a
Minister of State, or of a Department or
officer of the Government, of the
foreign state.
(3) Nothing in this section prevents the
proof of any matter, or the admission in evidence
of any document, in accordance with any other law
of the Commonwealth or any law of a State or
Territory."
Section 18(1) enables a person who is committed to
prison by a Magistrate pursuant to s.17 to apply to the
Federal Court of Australia "for a review of the validity of
the decision of the Magistrate". Upon a review under
s.18(1), the Court is to have regard only to the material
that was before the Magistrate and -
(a) if satisfied that the decision of the
Magistrate was valid ~ to make an order
confirming the decision; or
{b) if not so satisfied - to order that the
fugitive be released (s.18(3)).
Section 18(4) permits an appeal to the Full Court of the
Federal Court of Australia from an order made on an
application under s.18(1). In such appeal, the Full Court
is to 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 (s.18(5)).
The subsequent procedure for the surrender to a
foreign state of a fugitive liable to be so surrendered is
provided for in s.18A. It is unnecessary to refer in detail
to the provisions of that section. However, it should be
noted that, by virtue of the provisions of s.13(2)(a), a
person is not liable to be surrendered to a foreign state
unless provision is made by a law of that state, or by a
treaty in force between Australia and that state, or that
state has given an undertaking by virtue of which the person
will not, unless he has left, or had an opportunity of
leaving, that state, be detained or tried in that state for
any offence that is alleged to have been committed, or was
committed, before his surrender other than -
(i) the offence in respect of which the
person was surrendered or any other
offence of which the person could be
convicted upon proof of the facts on
which the surrender of the person was
ordered; or
(ii) any other extradition crime in respect
of which the Attorney-General consents
to his being so detained or tried, as
the case may be.
The Extradition (Republic of Austria) Regulations
(Statutory Rules 1975 No.103 as amended by Statutory Rules
1983 No.165; 1985 No.56 and 1987 No.3), being the
regulations as in force at the date the matter was dealt
with by the first respondent, provide that the Extradition
Act applies in relation to the Republic of Austria subject
to the treaties identified in the five lettered paragraphs
of reg.3. The first of those paragraphs, which is the only
paragraph here relevant, reads as follows:
""(a) the Treaty between Australia and the
Republic of Austria concerning
Extradition that came into force on 6
February 1975 (being the treaty a copy
of the English text of which is set out
in Schedule 1) as amended by the
Protocol amending that Treaty done at
Vienna on 13 August 1985 (being the
protocol a copy of the English text of
which is set out 1n Schedule 2)."
10.
The reference in that paragraph to the Protocol amending the
Treaty was inserted into the regulations by Statutory Rules
1987 No.3 as was the English text of that Protocol. Those
Statutory Rules were expressed to come into operation on 1
February 1987 but were, of course, only validly made if the
Protocol was then in force between Australia and Austria
(see s.10(1) of the Extradition Act).
The matter proceeded before the first respondent on
the footing that regard was to be had both to the Treaty
which came into force on 6 February 1975 and to the Protocol
done at Vienna on 13 August 1985 notwithstanding the absence
of any material, either in the form of a certificate of the
Attorney-General under s.25A of the Extradition Act or in
any other form, establishing that on 7 August 1987 both the
Treaty and the Protocol were in force. As the parties were
content to have the matter dealt with on that basis, we need
say no more than to stress the desirability, in a case where
an extradition treaty is relevant, of there being placed
before a Magistrate who is asked to exercise the power
conferred by s.17(6)(c) of that Act material identifying the
treaty and its terms and showing the date it entered into
force and that it remains in force at the date the
Magistrate is asked to exercise the power.
Reference should be made to certain of the
provisions of the Treaty which came into force on 6 February
1975 as amended by the Protocol done at Vienna on 13 August
1985. By virtue of Article 1, each Contracting Party agrees
11.
to extradite to the other, in accordance with the provisions
of the Treaty, any persons wanted for prosecution in the
requesting State for one or more of the offences referred to
in Article 3.
Article 3, so far as material, provides:
"ARTICLE 3
(1) For the purposes of this Treaty,
offences for which extradition may be granted are
offences however described which are punishable
under the laws of both Contracting Parties by
imprisonment or other deprivation of liberty for
a maximum period of at least one year or by a
more severe penalty....
(2) If extradition is granted for an offence
described in paragraph 1 of this Article,
extradition may, insofar as the law of the
requested State allows, also be granted for other
offences which, by reason of the penalty
prescribed ooees would not otherwise be
extraditable pursuant to this Treaty.
(3) For the purpose of this Article -
(a) it shall not matter whether the
laws of the Contracting Parties
place the acts or omissions
constituting the offence within
the same category of offence or
denominate the offence by the
same or similar terminology;
(b) in determining whether an offence
is an offence for which
extradition may be granted, the
totality of the acts or omissions
alleged against the person whose
surrender 1s sought, shall be
taken into account and it shall
not matter whether, under the
laws of both Contracting Parties,
the offence comprises the same
elements.
(4) Where the offence has been committed
outside the territory of the requesting State
extradition shall be granted where the law of the
requested State provides for the exercise of
12.
jurisdiction over an offence committed outside
its territory in similar circumstances. Where
the law of the requested State does not so
provide the requested State may, in its
discretion, grant extradition.
(5) Extradition may be granted pursuant to
the provisions of this Treaty irrespective of
when the offence in relation to which extradition
is sought was committed, provided that -
(a) it was an offence in the requesting
State at the time of the acts or
omissions constituting the offence; and
(b) the acts or omissions alleged would, if
they had taken place in the territory of
the requested State at the time of the
making of the request for extradition,
have constituted an offence against the
law in force in that State."
Articles 10, 11 and 12 should also be noted.
far as material, they provide:
ARTICLE 10
(1) Subject to paragraph 3 a person
extradited under this Treaty shall not -
(a) be detained or tried, or be subjected to
any other restriction of his personal
liberty, in the requesting State for any
offence committed before his extradition
other than -
{i) an offence for which he _ was
extradited or any other offence
referred to in Article 3 of which
he could be convicted upon proof
of the facts upon which the
request for his extradition was
based; or
(ii) any other offence referred to in
Article 3 in respect of which the
requested State consents to his
being so detained or tried, or
subjected to any other
restriction of his personal
liberty; or
So
13.
(b) be extradited to a third State unless
the requested State consents to his
being so extradited.
(2) A request for the consent of the
requested State under this Article shall be
accompanied by a copy of any statement made by
the extradited person in respect of the offence
concerned and by the documents mentioned in
subparagraphs (a) to (d) of paragraph 2 of
Article 11.
(3) Paragraph 1 of this Article does not
apply if the person has left the requesting
State, or has had an opportunity, throughout a
period of forty-five days beginning on the day on
which he was finally set at liberty in due course
of law, to leave the requesting State but has
failed to do so.
ARTICLE 11
(1) A request for extradition shall be made
in writing. All documents furnished in support
of a request for extradition shall be duly
authenticated.
(2) The request for extradition shall be
accompanied -
(a) if the person is accused .... of an
offence ~- by a warrant for the arrest or
a copy of the warrant for arrest of the
person, a statement of each offence for
which extradition is sought and a
statement of the acts or omissions which
are alleged against the fugitive in
respect of, each offence;
(b) ....
(c} ....
(d) in all cases by documents setting out
the relevant provision of the statute,
if any, creating the offence or a
statement of the relevant law as to the
offence including any law relating to
the limitation of proceedings, as the
case may be, and in either case a
statement of the punishment that can be
imposed for the offence; and
(e) in all cases by as accurate a
description as possible of the person
sought together with any other
information which will help to establish
the person's identity and nationality.
14.
(3) ....
ARTICLE 12
(1) A document that is furnished in support
of a request for extradition shall be admitted in
evidence, if duly authenticated, in any
extradition proceedings in the requested State.
(2) A document is duly authenticated for the
purposes of this Treaty if -
(a) in the case of a warrant it is signed,
and in any other case it is certified,
by a Judge, Magistrate or other
competent authority in the requesting
State; and
(b) ait is sealed with the official seal ofa
Minister of State of the requesting
State."
Article 19 provides that, if a document that is
sent from a Contracting Party to the other Contracting Party
in accordance with the Treaty is not in the language of the
other Contracting Party, the first-mentioned Contracting
Party is also to send a translation of the document into
that language.
The Republic of Austria, through its Embassy in
Australia, made a requisition in writing, dated 24 April
1987, for the extradition of the appellant. We are prepared
to regard the requisition as relating to the appellant on
the footing that the first respondent so found, the learned
primary judge was satisfied that there was material before
the first respondent to support that finding and, although
we have carefully considered the submissions put to us by
counsel for the appellant to the contrary, we are not
is.
satisfied that any sufficient basis has been shown for
reaching a conclusion that this is a case of mistaken
identity.
The requisition was accompanied by documents in the
German language and what was described as a certified
translation of those documents into the English language.
The primary document in the German language has the heading
"Haftbefehl", an expression which has been translated as
"Warrant of Arrest". That document is dated 30 January
1987. It purports to be signed by Dr Anton Zelenka,
described therein as a Judge of the Penal State Court of
Austria, and it has attached to it two documents. One of
the attachments sets out the text of what are said to be
relevant provisions of the Austrian Penal (or Criminal)
Code, namely paragraphs (or sections) 57, 58 (in part), 146
and 147. (Sections 57 and 58 relate to limitation periods
and are not relevant to any issue arising on the appeal.)
The second attachment is a photocopy of a document bearing
the heading "Zeugenvernehmung", an expression which has been
translated as "Examination of Witness". The name of the
witness whose statement is there recorded is shown as
Antonio Vidal Juan. It appears from the face of the
document that the statement was taken on 10 June 1986 before
Dr Zelenka with the assistance of an interpreter with
knowledge of the Spanish language. The statement refers to
other documents as being enclosures. It does not appear
whether those documents accompanied the requisition dated 24
April 1987 but, in any event, they were not part of the
material placed before the first respondent.
16.
On 8 May 1987 the Attorney-General signed a notice
under s.15(1)(a) of the Extradition Act stating that the
requisition had been made and authorizing "the issuing by
any Magistrate of a warrant for the apprehension of Hans
Heinz Klepp". The notice recited that Hans Heinz Klepp was
a fugitive "accused of the offence of fraud" against the law
of the Republic of Austria.
On 29 June 1987, upon information on oath, a
warrant for the apprehension of the appellant was issued
under s.16 of the Extradition Act by Ms Sally Elizabeth
Brown who was described as a Magistrate in and for the State
of Victoria and a Magistrate within the meaning of that
expression in s.4 of the Extradition Act. Pursuant to that
warrant the appellant was arrested in Victoria on 1 July
1987.
a
According to the certified English translation of
the warrant, the arrest of Hans Heinz Klepp is authorized
"because of suspicion of the crime of serious fraud
according to sections 146, 147, paragraph 3, of the Austrian
Criminal Code". The warrant also contains a statement of
facts and circumstances relied upon as_ providing a
foundation for the authority to arrest. From a
consideration of that material and of the attached statement
of Mr Vidal Juan, it is possible to discern the general
nature of the circumstances giving rise to the request for
extradition. A summary of those circumstances follows.
17.
The appellant is alleged to have been, at the
relevant time, the sole "associate and managing director" of
a limited liability company or partnership called Techimpex.
From 1975 onwards, Techimpex had business dealings with a
firm in Spain called Alvima S.A. which was a manufacturer
and wholesaler of heating appliances. Techimpex was the
representative of Alvima S.A. for Austria and Germany and it
purchased goods from Alvima S.A. which it then sold in the
course of its business. The course of dealing was such that
goods were supplied to Techimpex on terms that payment would
be made a specified number of days after delivery, the
number of days varying from 90 to 180 depending upon the
month of the year during which the goods were delivered.
Although it is stated in the warrant that up until
1985 payment for goods delivered was regularly made by
Techimpex, Mr Vidal Juan's statement is to the effect that
from the middle of 1984 Alvima S.A. had found it necessary
to extend the times for payment because of Techimpex's
failure to pay on the due dates. But whatever may have been
the position prior to July 1985, it is asserted that, in
respect of each delivery made between 9 July 1985 and 31
December 1985, some of those deliveries being made to
Techimpex and some directly to purchasers from Techimpex, a
bill of exchange was drawn by the appellant in the amount of
the invoice relating to the goods then delivered. It is
said that by so doing, the appellant induced the belief that
there was a capacity and willingness to pay for the goods in
18.
due course of business and in conformity with the terms of
the bill of exchange.
It is further asserted that the goods in question
were sold by Techimpex and that payments were made by the
purchasers, not to the usual bank account of Techimpex, but
to accounts then recently opened with other financial
institutions. Amounts are said to have been withdrawn from
those accounts between 11 November 1985 and 30 January 1986
by the appellant or by persons acting on his behalf, the
latter handing to the appellant the amounts withdrawn by-
them. The appellant is alleged to have secured from Alvima
S.A. in December 1985 extensions of the due dates for
payment under the bills of exchange, even though, at the
time he did so, payment for the goods had in most cases
already been made to Techimpex by the purchaser from it. On
presentation, the bills of exchange were dishonoured and
payment for the goods has not been made to Alvima S.A.
Mc Vidal Juan refers to 13 deliveries having been
made during the relevant period. He asserts that the amount
owing to Alvima S.A. totals 1.917.708 Deutschmarks which, at
the assumed rate of exchange, is said to be the equivalent
of 13.424,000 Austrian Schillings. The amount for which the
bill of exchange dated 9 July 1985 was drawn is shown as
68.310 Deutschmarks (or 478.170 Austrian Schillings). The
amount for which each of the other bills of exchange was
drawn does not appear from the material placed hefore the
first respondent. In particular, it does not appear whether
19.
each of those bills of exchange was for an amount exceeding
100.000 Austrian Schillings.
The appellant is alleged to have left Austria on 30
January 1986. It is said that he had, in March 1985, shown
interest in migrating to Australia and had, during the year
preceding his departure from Austria, sold "great parts of
his private and business assets". These circumstances are
said to give rise to a well-founded suspicion "that at the
moment of ordering with Messrs Alvima, S.A., Sedavi, [he]
had intended to convert to his own use the proceeds from the
resale of the merchandise".
On the hearing of the appeal it was contended on
behalf of the appellant that it was not open to the first
respondent to commit him to prison to await his surrender to
the Republic of Austria. This contention was supported by
three separate and independent submissions, one of those
submissions having alternative limbs.
'
First, it was submitted that the foreign warrant of
arrest and its attachments and the certified English
translation thereof were not admissible in evidence before
the first respondent and that, those documents being
inadmissible, there was no material before the first
respondent upon which he could be satisfied that the
appellant was liable to be surrendered. The basis for this
submission was that the documents were not duly
authenticated in accordance with Article 12 of the Treaty,
20.
it being asserted that' the requirements for due
authentication and, thus, admissibility, are to be found in
the terms of that Article and not in the less stringent
provisions of s.26 of the Extradition Act. Counsel for the
appellant, however, with commendable frankness, informed us
that no objection had been taken before the first respondent
to the admissibility of the documents and that, in the
proceedings before the primary judge, it had been conceded
on the appellant's behalf that the documents were duly
authenticated. In these circumstances, we do not think it
appropriate to allow the issue to be raised for the first
time on the hearing of the appeal.
Secondly, 1t was submitted that the first
respondent did not have before him a duly authenticated
statement in writing setting out a description of each
offence for which the surrender of the applicant was
requested and the penalty applicable to each such offence as
required by s.17(6)(a)(i)(B) of the Extradition Act.
Alternatively, it was submitted that, if the requirements of
that provision were considered to have been displaced by the
provisions contained in Article 11(2)(a) of the Treaty as
amended by the Protocol, the first respondent did not have
before him, in terms of that provision, a duly authenticated
statement of each offence for which extradition was sought.
We do not find it necessary to determine whether
the requirements of s.17(6)(a)(i)(B) of the Extradition Act
have been displaced, in whole or in part, by the provisions
21.
of Article 11(2)(a) of the Treaty as amended. Whichever
provision applies, we are satisfied that, in order to
sustain a requisition for the surrender of a person who is
alleged to have committed an extradition crime as defined,
it is necessary that the requesting state furnish to the
requested state a duly authenticated document which
satisfies the following requirements. It must set out the
essential elements of each offence for which surrender is
sought, clearly identify the provisions of the foreign law
creating the offence and the maximum penalty prescribed for
a breach thereof, and give sufficient particularity to
ensure that the requested state and the person whose
surrender is sought are left in no doubt as to the basis
upon which the requisition is made.
Various considerations combine to support the
conclusion that the language of s.17(6)(a)(i)(B) and of
Article 11(2)(a) should be read as making it essential that
the requesting state satisfy that requirement. At the
forefront of these is the necessity for the person whose
extradition is sought to be fully apprised of what is
alleged against him. Another consideration is that the
requested state needs to be informed of such matters so that
it may consider whether any of the limitations upon the
grant of extradition exist. Included in such limitations is
the Limitation that extradition will not be granted if the
offence for which surrender is sought is, or is by reason of
the circumstances in which it 1s alleged to have been
committed, an offence of a political character (see
22.
Extradition Act, s.13(1)). Further, it is necessary that
the offence or offences for which surrender is sought be set
out clearly in the documentation in order to assist in
ensuring that, if extradition be granted, the person
surrendered will be tried only for an offence or offences
for which he may properly be tried having regard to the
provisions of s.13(2)(a) of the Extradition Act and Article
10 of the Treaty.
In our opinion, the requirement which' the
requesting state must satisfy is not fulfilled if all that
is done is to put forward material of a general nature
making it necessary for the requested state and the person
exercising the "power conferred by s.17(6)(c) of the
Extradition Act to formulate the offence or offences upon
which extradition is sought.
What, then, is the position in the present case?
One may search in vain in the material placed before the
first respondent for anything in the nature of a formal
statement of the offence or offences alleged to have been
committed by the appellant. In particular, the offence or
offences for which extradition 1s sought are not expressed
in the language of any of the provisions of the Austrian
Criminal Code which are identified in the foreign warrant.
The English translation of that warrant refers, as has
already been. mentioned, to "the crime of serious fraud
according to sections 146, 147, paragraph 3, of the Austrian
Criminal Code". A translation of those provisions is set
23.
out in one of the documents attached to the foreign warrant
but the translation fails to give a clear picture of the
conduct which sections 146 and 147 proscribe. It may,
however, be accepted that section 146 makes it an offence
for a person, with intent to enrich himself or another, to
cause loss or damage by deceptive conduct. The penalty
prescribed for that offence is a fine or imprisonment for up
to six months. It is apparent, therefore, that, if what is
alleged against the appellant is an offence against section
146, the offence is not an extradition crime within the
meaning of that expression in s.4(1A) of the Extradition
Act.
Section 147 consists of three paragraphs. The
first paragraph, which is not, however, referred to in the
foreign warrant or its attachments as being the section
creating the offence alleged against the appellant, makes
punishable offences of fraud carried out by various
specified means of deception. Paragraph 2 is irrelevant for
present purposes. Paragraph 3 appears in the certified
English translation as providing:
"Who by the crime brings about a damage of more
than A.S.100.000 shall be punished by
imprisonment for one up to ten years."
Thus, although the maximum penalty prescribed in paragraph 3
satisfies the requirement set out in s.4(1A)(a) of the
24.
Extradition Act, it is by no means clear what are the
elements of the offence for which that penalty is
prescribed. It is certainly not apparent that paragraph 3
of section 147 has any relationship to the offence created
by section 146.
In these circumstances, we are satisfied that the
duly authenticated material put before the first respondent
does not fulfil the requirement which we have identified as
being essential to sustain a requisition for the surrender
of the appellant, whether that requirement has its-
foundation in s.17(6)(a)(i)(B) of the Extradition Act or in
Article 11(2)(a) of the Treaty as amended by the Protocol.
That the material is deficient 1n this regard is highlighted
by the attempts variously made in the course of the
proceedings before the first respondent and the primary
judge by those who then appeared on behalf of the Republic
of Austria, attempts which were attended with only limited
success, to formulate the offence or offences for which
extradition is sought. It follows that it was not open to
the first respondent to be satisfied, in terms of s.17(6)(b)
of the Extradition Act, that the appellant was liable to be
surrendered to the Republic of Austria.
The third submission relied upon had its foundation
in the provisions of s.4(1A)(b) of the Extradition Act. It
was submitted that, even if it were proper to regard the
25.
duly authenticated documents before the first respondent as
containing a description or statement of the offence or
offences for which extradition was sought, it was not open
to the first respondent to conclude that, had the acts or
omissions relied upon taken place, at the time when the
requisition for surrender was made, in, or within the
jurisdiction of, Victoria (being the part of Australia where
the appellant was found), those acts or omissions would have
constituted an offence against the law there in force the
maximum penalty for which is death or imprisonment for not
less than 12 months.
In the light of the conclusion which we have
already expressed in relation to the earlier submission
advanced on behalf of the appellant, it is unnecessary to
consider this submission and we refrain from expressing any
opinion on the point.
We do not think it appropriate, however, to part
with the case without commenting upon two other matters.
The first concerns the form of the warrant issued by the
first respondent on 7 August 1987. As has already been
mentioned, s.17(6) of the Extradition Act requires that such
a warrant be "in accordance with the form prescribed for the
purposes of this sub-section". The form is prescribed by
the Extradition (Foreign States) Regulations -— see reg.20
and Form 11 in the Schedule. Strict compliance with the
oy
26.
prescribed form is not required, substantial compliance
being sufficient (see Acts Interpretation Act 1901 (Cth),
ss.25C and 46(a)). <A perusal of the prescribed form makes
clear that it was drafted in such a way as to enable its
adaptation to the differing circumstances of individual
cases. Thus, some words appear in square brackets, those
words to be added only if the case requires. Other words
are to be omitted if inapplicable. The form also contains,
in italics, instructions as to the insertions to be made.
In the present case, no attempt was made to draft a
warrant appropriate to the particular circumstances, using
the prescribed form as a guide. What was done was to take a
photocopy of the prescribed form (Form 11) after having
obliterated some, but not all, of the italicized
instructions appearing therein and superimpose on the copy
so made various handwritten entries. Words which were
clearly inapplicable to the circumstances and which should,
therefore, have been omitted were allowed to remain. Other
words in the prescribed form were also allowed to remain
without it being apparent that the case was considered to
require their presence. Also, the warrant is not formally
addressed to the person in charge of a nominated prison.
Further, although the document was signed by the first
respondent, he failed to comply with the direction contained
in the prescribed form that he state his designation. The
resulting document lacks that degree of precision and
clarity which should attend a warrant for the committal of a
»
27.
person to prison. What was done in this case should not be
regarded as a precedent to be followed in other instances.
The second matter is whether Ms Brown and the first
respondent, each of whom at the relevant time held office as
a Magistrate in the State of Victoria pursuant to s.7 of the
Magistrates' Courts Act 1971 (Vic), were persons authorized
to exercise the powers respectively conferred by ss.16 and
17(6)(c) of the Extradition Act. Those powers are conferred
upon a "Magistrate", an expression defined in s.4(1) to
mean, so far as is material for the purposes of the present-
case, a person who holds office as a Magistrate, or aS a
Chief, Stipendiary, Police, Resident or Special Magistrate,
of a State and in respect of whom an arrangement in force
under s.24(1) is applicable. Section 24 provides:
"(1) The Governor-General may arrange with
the Governor of a State for the performance of
all or any of the persons who from time to time
hold office as Chief, Stipendiary, Police,
Resident or Special Magistrates of that State of
the functions of a Magistrate under this Act.
(2) A copy of each arrangement made under
this section shall be published in the Gazette."
The material before the first respondent included a copy of
a notice published in the Commonwealth of Australia Gazette
No.72B dated 1 September 1969 setting out the text of the
arrangement made on that date between the Governor-General
and the Governor of the State of Victoria in pursuance of
s.24(1) of the Extradition Act. Under that arrangement,
28.
"all persons who from time to time hold office as
Stipendiary Magistrates in the State of Victoria may perform
the functions of a magistrate under that Act". It would
appear that, at the time the arrangement was made and until
the coming into force on 1 July 1986 of s.30 of the Courts
Amendment Act 1986 (Vic), persons were, in the State of
Victoria, appointed as Stipendiary Magistrates. By that
statute, the word "Stipendiary" was deleted from the
designation.
In view of the conclusions to which we have come on
other aspects of the appeal and because the matter was not
fully explored on the hearing before us, we express no
definitive opinion upon the question whether Ms Brown and
the first respondent were persons authorized to exercise the
powers which they purported to exercise. However, the
question whether persons who hold the office of Magistrate
under the Magistrates' Courts Act 1971 (Vic) are authorized
to exercise powers under the Extradition Act is one which
should receive the attention of the Attorney-General as the
Minister of State administering the Extradition Act.
For the reasons we have given, the following orders
are made —
1. The appeal be allowed.
2. The orders made on 18 November 1987 be set aside
and, in lieu thereof, it be ordered -
(i) that the decision of the first
respondent (William Paterson Gibb) made
on 7 August 1987 and the warrant issued
by him on that date be set aside;
29.
(ii) that the applicant (Hans Heinz Klepp) be
released; and
(iii) that the second respondent (the Republic
of Austria) pay the applicant's costs of
the application for review.
3. The second respondent pay the appellant's costs of
the appeal.
Counsel for the appellant
Solicitors for the appellant
Counsel for the respondents
Solicitor for the respondents:
Dates of hearing
I certify that this and
the preceding 28 pages
are a true copy of the
Reasons for Judgment
herein of the Court.
Associate
Dated: 18 July 1988
Mr M.S. Weinberg, Q.C.
and Mr M. Crennan
Nedovic & Co.
Mr R.C. Gillard, Q.C.
and Mr P.N. Rose
Director of Public
Prosecutions
14, 15 June 1988