SUD No, AIA Be CATCHWORDS EXTRADITION ~- Federal Republic of Germany - whether statement of acts or omissions vitiated by reliance on reasons for foreign judgment. Extradition (Foreign States) Act 1966, ss.4(1A), 4(1B), 4(3), 10, 12, 132) ote} I7{6A), 18 La LA ¢ , Extradition (Federal Republic of Germany) Regulations, reg.4 Eugen Alexander Wiest v. The Director of Public Prosecutions & Anor NSW Gi062 of 1988 PINCUS J. SYDNEY 28 JULY 1988 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) N.S.W. G1062 of 1988 BETWEEN: EUGEN ALEXANDER WIEST Applicant AND: THE DIRECTOR OF PUBLIC PROSECUTIONS First Respondent AND: RICHARD PETER MISZALSKI Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 28 JULY 1988 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the decision of the second respondent made on 31 May 1988 to issue a warrant committing the applicant to prison to await the warrant of the Attorney-General for his surrender to the Federal Republic of Germany be confirmed; 2. the application be otherwise dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) N.S.W. G1062 of 1988 BETWEEN: EUGEN ALEXANDER WIEST Applicant AND: THE DIRECTOR OF PUBLIC PROSECUTIONS First Respondent AND: RICHARD PETER MISZALSKI Second Respondent PINCUS J. 28 JULY 1988 REASONS FOR JUDGMENT The applicant seeks relief under s.18 of the Extradition (Foreign States) Act 1966 by way of review of a decision of the second respondent, a magistrate, 1n proceedings under that Act. The applicant also attacks the same decision under' the Administrative Decisions (Judicial Review) Act 1977. It should be mentioned that the first respondent to the application just mentioned, the Director of Public Prosecutions, also made an application relating to a decision of the second respondent, concerning an undertaking as to costs. It was heard with the other application, but raises a distinct issue, and will be dealt with in a separate judgment. This application concerns, principally, the operation of s.17(6)(a)(i)(C) of the Extradition (Foreign States) Act ("the Act"). That requires, in effect, that the second respondent have before hima "statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested", and the fundamental contention was that no such statement was produced. That involves an analysis of the documents which were relied on before the second respondent and, of course, an interpretation of the words just quoted. A second point taken, closely related to the first, was that evidence bearing on the applicant's state of mind was wrongly rejected by the second respondent. A third point which was made but not strongly pressed was that the second respondent should have held the attempt to extradite the applicant to be an abuse of process. The central provision of the Act is s.12, which says that where it applies in relation to a foreign state "every fugitive from that state is liable ... to be apprehended and surrendered to that state as provided by this Act ..." Section 9 makes the Act apply by its own force to certain states and s.10 empowers the making of regulations applying the Act to states with which Australia makes an extradition treaty (sub-ss.(1) and (2)) or a treaty containing provisions relating to the surrender of fugitives (sub-s.(3)). Section 10(4) gives the Governor-General power to make regulations applying the Act to a foreign state if: "... satisfied that, if this Act applied in relation to a foreign state, the law of that foreign state would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV who are found in that foreign state, or within the jurisdiction of, or of a part of, that foreign state ..." Under s.10(4), there have been made the Extradition (Federal Republic of Germany) Regulations (S.R. 321 of 1985, S.R. 294 of 1986); reg.3 applies the Act to the Federal Republic subject to certain limitations and the like. The Act provides for the giving of certain notices by the Attorney-General (s.15), the issue of warrants for apprehension by magistrates (s.16), and the bringing of persons apprehended before a magistrate (s.17). Here, steps were taken under ss.15 and 16, but no question arises relating to them; it 1s not in dispute that the applicant was apprehended under a warrant within the meaning of s.17(6) of the Act, which reads in part as follows: "If the person was apprehended under a warrant issued in pursuance of an authority by the 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 - (i) ain the case of a person who 1s 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 (b) In what follows the expression "para. para.(A) and similarly for paras.(B) and (C). The sub-section goes on to require the magistrate, applicant, either to commit the person in question to prison to await the warrant of the Attorney-General for surrender of the (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 the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to he surrendered to the foreign state that made the requisition for the surrender ..." person, or to order his release. Section 18, under which this application is brought, reads in part as follows: (3) Where a person (in this section referred to as a ''fugitive') as 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. 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 (A)" will refer to the above un cases like that of the (b) if not so satisfied - order that the fugitive be released." The reference to the Attorney-General's warrant in s.17(6) explained by s.18A, the general effect of which is that if the magistrate's decision under s.17(6) is not challenged or is unsuccessfully challenged, the Attorney~General may, subject to certain conditions, by a warrant order that a person specified in it take the fugitive into custody and convey him to a foreign state and there surrender him. It is important for the purposes of the present case to notice that the applicant is deemed to be a person accused of an extradition crime within the meaning of s.17(6)(a)(1). Although he has been convicted in the Federal Republic of Germany in relation to matters the subject of these proceedings, he was not present when convicted, and s.4(3) provides: "where a person has been convicted in the absence of the person of an offence against the law of, or of a part of, a foreign state, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence." It seems clear that full effect must be given to s.4(3) and the applicant suffers no disadvantage, so far as the present proceedings are concerned, by reason of his having been convicted in the Federal Republic. As a practical matter, however, his having been convicted is a source of the problems relating to the application of para.(C), which were raised before the second respondent and before this Court. The course taken was to produce the judgment and reasons for judgment of the Court in the Federal Republic which convicted the applicant. They were said by the first respondent to be part of the material to which reference should be made to identify the acts or omissions in respect of which surrender was requested and said by the applicant to be too discursive to fulfil that purpose. It was argued for the applicant that one may seek assistance, as to the proper meaning of the expression "acts or omissions" in para.(C), in those provisions which attach significance to identifying the acts or omissions in question. In my opinion, that is true, but with a reservation. As I have mentioned, the Extradition (Federal Republic of Germany) Regulations made under s.10 apply the Act to the Federal Republic, but do so subject to limitations; they are to be found in reg.4 and depend upon identifying the "relevant act or omission" as there defined. The expression "a ... statement in writing setting out all the acts or omissions" must primarily take its meaning from the body of the Act, not from the context of a later regulation making the Act applicable to a particular country, which uses that expression or like expressions. One must identify the acts or omissions in respect of which surrender is requested for a number of purposes. One is that there is a limitation with respect to seriousness, and a "double criminality" requirement, in s.4(1A) of the Act, which uses the expression "relevant act or omission", defined in s.4(1B). Those two sub-sections are as follows: "(1A) An offence against the law of, or of a part of, a foreign state (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if, but only if - (a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and (b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of 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. (1B) The reference in paragraph (1A)(b) to a relevant act or omission by a person 15 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 (11) 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)." It will be noted that s.4(1B) appears to be drawn on the assumption that one may find the act or omission alleged in the relevant requisition; nothing else in the Act says so. It 1s clear from s.17(6), quoted above, that material produced to a magistrate with a view to obtaining an order committing the person in question to prison to await the Attorney-General's warrant is to include the statement of the acts or omissions in respect of which surrender is requested; that material does not include the requisition. Presumably the material mentioned in paras.(A), (B) & (C) would be regarded as being "in connection with" the requisition. However that may be, s.4(1B), although relied on by the first respondent's counsel, appears to me to throw little light upon the effect of para.(C). I note, in passing, that there was no contention that the proceedings in question infringe s.4(1A). Next, one must identify the acts or omissions for the purposes of application of s.13(2) of the Act. So far as relevant, that sub-section is destructive of liability to surrender to a foreign state unless that state has given an undertaking, to put 1t roughly, against prompt prosecution (unless the Attorney-General consents) for other offences than that in respect of which he has been extradited ~- "any other offence of which the person could be convicted upon proof of the facts on which the surrender of the person was ordered". To give a reasonably clear effect to such an undertaking, then, an adequate definition of those facts is necessary. Again, it was pointed out on behalf of the applicant that s.17(6A), set out below, makes necessary the identification of the relevant acts or omissions. It was argued on behalf of the applicant that, because (A) and (B), implicitly, and (B) and (C), explicitly, are connected by the word "and", there must be produced to the magistrate a separate document, identifiable as a statement in writing under (C), which is self-contained in the sense of requiring no reference to either (A) or (B). For two reasons, I reject that submission. Firstly, without benefit of authority, I would take it that a statement could comply with (C) although it made some reference to or incorporated information in, for example, (A), as to details of date and place, rather than repeating it all. Secondly, it appears from the decision of the Full Court in Linhart v. Elms (unreported, 20 June 1988) that - "The Magistrate ... 1s not restricted in his considerations simply to the facts' relating specifically to this charge. He can have regard to all other relevant facts put before him in the warrant and supporting documents" (per Foster J., p.5). Fox J. expressed himself to similar effect at p.21 and Gummow J. at p.10 said that the "statement in writing may or may not be a part of the duly authenticated warrant or copy thereof " eae Whatever might have been said in support of the contention that was made on behalf of the applicant, were the 10. point bereft of authority, it seems clear enough from Linhart v. Elms that a statement made to comply with (C) may be filled out by reference to, or even contained in, allegations in the warrant. It must be said, however, that extradition proceedings, which often seem to involve a great deal of trouble and expense, might run more smoothly if those responsible for preparing the documents for presentation to the magistrate could be induced to peruse and follow strictly the directions in s.17(6)(a)(i); the use of elaborate variants of that procedure, as here, creates quite unnecessary difficulty. Next, counsel for the applicant contended that the acts or omissions must be stated in a concise and precise way and not scattered throughout a discussion of a set of facts so that the fugitive has to undertake a difficult task of analysis to identify the former. This 1s, as 1t seems to me, a problem not explicitly dealt with in Linhart v. Elms, although statements made by members of the Court throw light upon it; they are set out below. The terms of para.(C) do not themselves express, or necessarily imply, that the statement may contain no additional material. As appears from s.18, partially quoted above, this Court's function is to review the validity of the second respondent's decision on the material before him. Counsel for the first respondent (who was the applicant below) was asked, when the matter was before the second respondent, to indicate which document was tendered to comply with para.(C). His answer was to the effect that the judgment of the Local Court at Bonn, together 11. with the warrant of arrest and the requisition, satisfied (C). Before this Court, he did not suggest that the requisition could assist in satisfying (C). It is necessary partly to set out and partly to summarise the warrant and judgment; to set them all out would be inconvenient, for the translation of the judgment runs to some 34 pages, and includes material which could not possibly be necessary under any of the three paragraphs. The requisition refers to the warrant and the Court's judgment, and in effect requests extradition in respect of an offence which is identified as being that referred to in the judgment; it does not itself set out any acts or omissions. The warrant of arrest may be set out, so far as relevant to the point being discussed, in full. "He 1s charged with having, late in December 1985 at Bonn, coincidently, with the intention of procuring for himself an unlawful pecuniary advantage, damaged another person's property by arousing an error through false pretences, for the purpose of practising deceit in legal relations, falsified a genuine document and used a falsified document. The accused and the STRABAG BAU AKTIENGESELLSCHAFT (company limited by shares) were jointly authorized to sign for the account of a joint venture group formed by them. By letter of December 20, 1985, the accused was sent a transfer order by the STRABAG company, this transfer order being made out to the amount of 224,600.-- deutschmarks in favour of HANDWERKSBAU RHEINLAND-PFALZ and signed already by an employee of STRABAG, and he was asked to put the secand necessary signature to the document. He himself or an assistant acting according to his instructions changed, late in December 1985, the name of the transferee to "Wiest und Companie im 12. Auftrag AIT" (Wiest and Company by order of AIT) and inserted the account No. 116 061 with "WEST LB KOLN (Westdeutsche Landesbank in Cologne), for which account he had the sole power of disposition. The accused then signed the document concerned. The transfer order was forwarded to the Bad Godesberg KREDITBANK EINGETRAGENE GENOSSENSCHAFT (cooperative bank). When being asked about this by a member of the bank's board of directors, the accused confirmed that the alterations had been made with the consent of the STRABAG company. The accused closed the account of the Wiest firm after the money had been transferred and withdrew the funds in cash on December 31, 1985. Criminal offences punishable under Sections 263 (1), 207 (1), 52 of the STRAFGESETZBUCH (German criminal code)." The other document relied on 1s the judgment of the Local Court at Bonn given on February 11 1987. Under the heading "Reasons", there are to be in it found sections headed by Roman numerals. The first sets out some of the background of the applicant, for example, his marital and commercial status as well as a previous conviction. The second contains the Court's findings and the third identifies the nature of the evidence on which the findings were based, that is, the names of the witnesses, identification of the documents used and the nature of certain other inquiries made. The fourth sets out the Court's conclusion as to four possible criminal offences which were apparently argued to be based upon the findings; as to two of those the conclusion was favourable and as to the other two it was unfavourable to the applicant. The fifth section of the reasons explains the ground of rejection of certain evidence sought to be put forward on behalf of the defence and the sixth deals with penalty. 13. Some parts of the reasons, for example rulings on evidence, plainly identify themselves as not constituting or relating to the acts or omissions relied on and they will be ignored in my summary. Further, insofar as the companies mentioned in the reasons have been given abbreviated names, I shall use the abbreviations. Section II says that a firm called STRABAG and one called AIT had formed a joint venture group called ARGE. The accused was the sole shareholder in AIT, but his authority to represent the company under German law was unclear; however, he was accepted by "the business partners" as having authority. The joint venture's object was the construction of a building project for an insurance company. The partners had a 50% share each in the profit (or loss) of ARGE, but STRABAG was the manager. The contract between the partners required that invoices be checked by both partners. The accused was to receive DM600,000 under that contract, for "special services rendered (development etc.)" and payment of that sum had been effected. STRABAG was "not interested ... in executing the building project as general contractors" so a building company called HABAU was entrusted with the work. The ARGE's bank account was with a bank called Bad Godesberg Kreditbank Eingetragene Genossenschaft, ("the Godesberg Bank"). Each partner gave authority to designated persons to sign "for the said account" and, as to AIT, the designated persons included the accused. On presentation of HABAU's final account dated March 22 1985, the insurance company paid ARGE DM224,600, in autumn 1985. STRABAG made out a crossed cheque in favour of HABAU on behalf of ARGE in the same sum, and forwarded it to HABAU 14. asking it to obtain "the second necessary signature from an authorised person of AIT", The accused received the cheque from HABAU, but refused to sign it and kept it. ARGE again wrote, asking the accused to sign the cheque and the accused replied to STRABAG saying that he had no contractual relationship with ARGE, that he "had only been authorised by AIT and was acting under the latter's instructions". HABAU again "asserted its claim with the help of its lawyers"; STRABAG, for a third time, asked that the cheque he counter-signed, but the accused replied in the same vein as previously, adding that he had been told by AIT to release payments only after "the partner's account had been balanced". One Dietzen, on behalf of STRABAG, spoke to the accused and was told that the claim asserted by AIT against ARGE was about DM10,000. On 20 December 1985, AIT wrote to the accused enclosing "signed transfer slips" being DM224,600 payable to HABAU and an adjustment of accounts of DM12,432 in favour of AIT. The accused was asked "to forward the transfer order to" the Godesberg Bank without delay and destroy the previous crossed cheque made out to HABAU. In the transfer slip in favour of HABAU, its name was entered as payee, together with its account number and the name of its bank. Three days later, the transfer slip was submitted to the Godesberg Bank but had been altered with a Tipp-Ex correction fluid and a typewriter by "either the accused or an assistant acting under his instructions". The payee's account number and bank had been altered so that "Wiest and Company by order of AIT Bonn" became the payee and the account number and bank of that company were given. The transfer slip was provided with a new "value date" namely December 27 1985, the "7" being replacement of a "3" which originally appeared. The transfer slip was signed by the accused. 15. The reasons went on: "Such alterations were neither known to nor agreed upon in any way with the Strabag company, and this, as a matter of course, was fully known to the accused." At that time AIT was in liquidation and the liquidator was named. Because of the "obvious alterations" the manager of the Mehlem branch of the Godesberg Bank consulted a Mr Wassermeyer, a "bank clerk" and one of the bank's directors, and Wassermeyer tried unsuccessfully to contact the accused and STRABAG. Later, he reached a Mrs Hurig in the AIT office who toid him the alterations to the transfer slip had been agreed with by STRABAG and that she had a note of the conversation. Still dissatisfied, Wassermeyer succeeded in contacting the applicant on Saturday, December 28. He was told that STRABAG had given its consent to the transfer slip's being altered. On being asked for written confirmation of that, Wassermeyer was told that the confirmation could only be submitted on 6 January, since the STRABAG office was unoccupied. Wassermeyer never received a written confirmation, but only a note of the conversation dated December 18 1985, apparently signed by Mrs Hurig of the AIT office. It recorded that Dietzen had said that "... the money must be withdrawn from the account by the end of the year. If necessary, Mr Wiest should alter the transfer order after all." Wassermeyer, however, was satisfied by what the accused told him on the telephone and gave instructions to execute the transfer order being "guided by the desire" to comply with a regular customer's request. The money was duly credited to Wiest and Company, on which the accused was the only person authorised to operate. On December 31 1985, the accused closed the account and had the funds paid out to him in cash. 16. STRABAG had never consented to any assignment of AIT's claim against ARGE or STRABAG to Wiest and Company. At the beginning of January 1986, HABAU again claimed payment from STRABAG and "the diversion of the payment" was discovered. STRABAG then sued the Godesberg Bank and was awarded damages of the amount in question, namely DM224,600, plus costs. Before that suit was begun, the accused told the Godesberg Bank that he wanted to "discharge them from possible claims raised by Strabag or the ARGE". A "corresponding security" was promised for May 1986. At the beginning of January 1987 DM150,000 was paid into the account of a certain firm with the Godesberg Bank and transferred as security for claims resulting from the suit of ARGE or STRABAG against the Godesberg Bank. For the same purpose, a security of DM100,000 was created on real estate in Bonn-Duisdorf for the Godesberg Bank, but the land was not in the accused's name, so the bank's security remained unregistered. On 28 January 1987, Mrs Hurig received a telex from the accused and members of his family from the Sheraton Hotel, Melbourne. Section III, after setting out the sources used (as explained above) said that "the accused has not made a statement of a defence". It went on to mention inquiries which had been made as to whether AIT was entitled, or the accused could have assumed on reasonable grounds that it was entitled, to claim DM224,600 against the ARGE. Evidence as to that was obtained from an expert, but the question was thought to be irrelevant. There 1s then further discussion in support of the conclusion that the accused could not have thought that STRABAG had allowed him to alter the transfer order. Section IV commences by asserting summarily that the accused is liable to prosecution on grounds of fraud, damaging the Godesberg Bank and on the grounds of forgery of 17. a document committed as the actual or indirect perpetrator. As to the first, the "act of deception is to be seen in" the fact that, having sent the altered slip, the applicant told Wassermeyer, contrary to the truth, that the alterations had been made by agreement with STRABAG. The clumsiness of the alteration was "supposed to suggest the prior arrangement of the authorised co-signatory". As a matter of law, even if Wassermeyer had doubts, after the phone conversation with the accused, his having carried the transaction out was enough. After the transaction the bank's assets were reduced by DM224,600, taking into account any civil law claims, for it was obliged as a matter of law to credit ARGE with DM224,600. Wassermeyer was grossly negligent, for his conversation with the accused was not enough to verify the alterations to the transfer form. Further, the bank's claim against the accused by reason of the deception must, as a matter of law, be left out of account, in determining whether it was damaged by that deception. The accused "carried out the acts constituting the offence of fraud deliberately" because he knew what he told Wassermeyer on the telephone to be false. He also accepted that the bank would suffer loss for execution of the altered transfer order. The accused "acted with the intention of procuring for himself an unlawful pecuniary advantage", namely to gain the sum of DM224,600. As to the second conclusion, that the accused was "liable to prosecution for forgery of a document committed by him as the actual or indirect perpetrator", this view is based on the "assumption" the transfer slip was altered in Bernhardstrasse (the accused's residence). It followed that the alteration must have been made by him or under his i8. instructions. He "acted with intention". He had knowledge of the alteration of the transfer slip as results from the telephone conversation he had with the witness, Mr Wassermeyer. The forgery was "committed for the purpose of practising deceit in legal relations". That was so because he wanted the transfer executed for the benefit of Wiest and Company and that could only be done if the Godesberg Bank was convinced of the genuineness of the transfer slip. The fact that to that slip had to be added "supplementary verbal arguments" did not destroy that conclusion, nor did the fact that the alterations were obvious. Further, the accused made use of the document by forwarding it to the Godesberg Bank, the forgery and the later use of the document constituting only one offence as a matter of law. There followed explanations of the reasons for rejection of two other possible offences, one involving "disloyalty to the prejudice of STRABAG or the ARGE" and the other involving fraud to the prejudice of Strabag or the ARGE. Both these were rejected for reasons which were, in substance, that neither suffered any loss. It should be added that in Section VI which, as I have mentioned, concerns punishment, the Court laid emphasis on the "exceptional breach of confidence" in the accused's behaviour towards the bank, and said that he "deliberately put the bank under pressure" by giving as the value date December 27 1985, making it almost impossible for the bank to verify the transfer order in time during a holiday period. 19. Consideration of the question whether the reasons for judgment I have summarized, read with or without the warrant, are too diffuse requires some analysis of what was decided by the Full Court in Linhart v. Elms (above). There, the warrant alleged numerous offences. All three members of the Full Court were of the view, like Beaumont J., that offences c. - x., set out in detail at pp.10-13 of the reasons of Fox J, were insufficiently alleged. The method of allegation (in the warrant) was to begin with a brief general description of conduct engaged in over a period of time and then to set out a list of details such as time, injured party and so forth. Fox J. referred to two charges mentioned in the warrant as having been expressed "in the one statement, almost conversationally" and in a non-technical way. He added: "... 1t is to be remembered that the document is a warrant, and not an indictment." But if statements 1n a warrant are sufficient to satisfy the requirements of para.(A), that does not necessarily answer the question whether they also satisfy (C). Gummow J. said (p.12), in effect, that considerations arising from s.4 suggest: ",.. that the 'act or omission' is described or identified in these sub-sections in terms of conclusions or findings of fact as to the essential elements or integers of an offence, rather than a plethora of particular facts which, if taken together, may lead to the ultimate conclusion". 20. Then at p.13 his Honour said, in effect, that to satisfy para.(C) a statement must: "... speak with sufficient specificity to enable the magistrate to be satisfied that the fugitive in question is liable to be surrendered ..." He added that the inquiry as to whether a statement was sufficient "will be a matter for practical judgment and assessment ..." Foster J. said at p.9 that: "... ss (C) should be read as placing a definite onus upon the requesting state to produce clear allegations of # fact to support the basic proposition that on those facts or their equivalent, the accused would have committed an offence under Australian law in the relevant part of Australia." At p.11, he expressed the view that para.(C) required, in the case before him, that: "precise allegations of the 'manner and means' of the making of the basic fraudulent representations be provided." How strictly should one construe the requirements of para.(C)? The applicant relied upon views recently expressed by the High Court as to a statute having a rather similar purpose. In R. v. Bolton; Ex parte: Beane (1987) 70 A.L.R. 225, Beane, who was alleged to have deserted or absented himself without leave from the U.S. Marine Corps, was sought to be apprehended by United 21. States authorities by use of the procedure set out in a Commonwealth statute. Two members of the High Court, Brennan J. and Deane J., strongly emphasised that in construing the statute one must have regard to its effect upon the liberty of a person lawfully resident in this country. There is, on the other hand, authority in favour of the view that extradition treaties are not to be construed in a way which would "hinder the working and narrow the operation of most salutary international arrangements" - per Lord Bridge of Harwich in The Government of Belgium v. Postlethwaite [1987] 3 W.L.R. 365 at 383. That case concerned the effect of a treaty between the United Kingdom and Belgium, given effect, of course, under domestic legislation. Article V of the treaty said that if, within a certain time, "sufficient evidence for the extradition shall not have been presented, the person arrested shall be set at liberty". That seems unequivocal enough. The people whose fate was considered in the case were held disentitled to the benefit of Article V where the necessary evidence had been presented only in the sense that statements had been sent to the Court; they had neither been tendered nor admitted and were apparently inadmissible. This generous construction of the notion of presenting evidence contrasts with the spirit of the remarks to which I have referred, made in R. v. Bolton. I would add that in Zoeller v. The Federal Republic of Germany (unreported, 22 March 1988) Sheppard J., at p.33, deprecated overzealousness in finding deficiencies in material sought to be used under the legislation here in question "which is not strictly in conformity with the Act or which is inelegant or 22. inappropriate". He also, at p.57, spoke without disapproval of the presence in the material of allegations not "necessarily ... relevant to the guilt of the applicant, but ... allegations which need to be made and understood for completeness". The ready acceptance by his Honour of the notion that a statement for the purposes of (C) might be contained in "the request, the warrant, or in some other document" (p.45) and the acceptance of a similar construction by the Full Court in Linhart v. Elms (above) tend in the same direction. In my view, although the Court is not here dealing with a treaty made with the Federal Republic, the making of the regulations shows that that nation enforces extradition to Australia (see s.10(4)), and no excessively narrow or pedantic approach appears on the authorities, to be called for. In my opinion, the warrant itself is, at least, all but sufficient for the purposes of para.(C). I say "all but sufficient" because there 1s room for argument as to whether or not it sufficiently clearly alleges the necessary state of mind, namely actual fraudulence. In my opinion, the references to "unlawful pecuniary advantage", "false pretences", "practising deceit" and similar expressions in the warrant makes its purport clear enough, and in arriving at that conclusion I am assisted by the views of the majority of the Full Court in Linhart v. Elms {Gummow J. dissenting) as to the first charge considered in their Honours!' reasons. If the conclusion just expressed is incorrect, however, the reasons for judgment of the Local Court make the presence of the necessary mental element, namely a fraudulent intention, amply 23. clear. While the force of the argument that the second respondent's decision was not valid because the reasons contain too much detail and extraneous material must be conceded, I have come to the conclusion that that argument must fail. There is nothing in para.(C) to suggest that a statement, otherwise adequate, is vitiated by the presence of additional information, and I am of opinion that the documents produced were rightly held by the magistrate to comply with requirements of para.(C). If it Matters, I am satisfied that the inclusion of the extra material put the applicant under no real disadvantage. The second point taken on behalf of the applicant was that the second respondent erred in declining to allow the applicant to adduce certain evidence. Section 17(6A) reads as follows: "A person referred to in paragraph (6)(b) is not entitled to adduce, and a Magistrate is not entitled to receive, 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." In argument for the second respondent, counsel for the present applicant made it clear that the evidence sought to be adduced related to the state of mind of the applicant. What appears to be a fair sample of the discussion is contained in the following statement: "Now, 1n the present case there, the fugitive isn't able to say I spoke to the man, all he is able to say is that he was told by his secretary certain things and that he honourably and honestly relied upon. Now that is a claim of right and 24. explanation." It is my opinion that such evidence falls within the prohibition in s.17(6A), In substance it would controvert the whole basis of the case sought to be made, namely fraud. Counsel for the applicant argued that the expression "an allegation that the person has committed an act or omission" in s.17(6A) cannot include an allegation as to state of mind. In my opinion that is not so; although in some contexts the scope of statements as to acts or omissions constituting an offence might be so confined, here the intention is that the question of guilt or innocence shall not be litigated before the magistrate. In my opinion, a statement such as that, for example, a designated person fraudulently carried out specified actions is a statement within para.(C) and also "an allegation that the person has committed an act" within s.17(6A). The third point taken, which was not pressed, was that the proceedings before the second respondent constituted an abuse of process, because the applicant had previously been arrested in respect of the same matter. In substance, that contention of the applicant was dealt with in a hearing before Davies J. in which his Honour refused to restrain the extradition proceedings. I respectfully agree with the conclusion his Honour then came to (27 May 1988, unreported). It should be added that the applicant relied on the Administrative Decisions (Judicial Review) Act only as a basis for adducing evidence of the kind discussed above, a course which 25. cannot be taken 1n a review under 5.18 of the Extradition (Foreign States) Act. It is unnecessary to deal separately with the application insofar as it was based on the former statute. In the result, I am satisfied that the decision of the second respondent was valid and that decision will be confirmed. 1 certify that this and the) 4. preceding pages are a true cory of the reasons for judgrrent herein of His Honour