Re Wilson; Ex parte Witness T [1976] HCA 33

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Re Wilson; Ex parte Witness T [1976] HCA 33

ORDER Application refused.

The following written reasons for judgment were delivered:—

June 21 Barwick C.J.

The applicant for prohibition has been served with a subpoena to give evidence before a special magistrate in Adelaide. The magistrate holds an authority given in pursuance of s. 27(1) of the Extradition (Foreign States) Act 1966-1974 ("the Act"), to take evidence for the purpose of a criminal matter pending in the Regional Court, Luneburg in the Federal Republic of Germany, for the trial of charges against Albert Kruger. The magistrate has entered upon the taking of the evidence of a witness called before him in the interests of Albert Kruger. In the course of taking such evidence, the magistrate allowed questions to be put to the witness by one or other of two German judges who are members of the Court of the Federal Republic of Germany which is hearing the charges against Albert Kruger. In an affidavit filed in this matter, it is said that in the system of trial obtaining in West Germany, it is the duty of the judges to examine the witnesses produced at a trial. The examination by these judges partook of the nature of cross-examination.

The applicant, also to be called in the interest of Albert Kruger, has not yet given any evidence, though apparently he has been represented before the magistrate.

The grounds upon which the applicant seeks an order to prohibit the magistrate from taking the evidence of the applicant, are:

(i) The proceedings being conducted by the special magistrate are inquiring into matters of a political character.

(ii) It is a denial of natural justice and contrary to s. 27 of the Extradition Act to permit the German judges to continue to ask questions in a manner which is inquisitorial in form and contrary to the rules of evidence of the State of South Australia, whilst purporting to take the evidence pursuant to the said rules of evidence and the protection therein contained.