FEDERAL COURT OF AUSTRALIA
Dutton v O’Shane [2003] FCAFC 195
EXTRADITION – appeal against determination that appellant eligible for surrender under s 21 Extradition Act 1988 (Cth)
EXTRADITION – fraud offences in South Africa – whether offences were “extradition offences” for the purposes of s 5 of the Extradition Act 1988 (Cth) – whether leave should be granted to raise matter during appeal – whether, given the ‘staged nature’ of extradition proceedings, the matter can be raised in an appeal from a s 21 review
EXTRADITION – s 5 requirement that the maximum penalty for extradition offence be imprisonment for not less than 12 months – whether offences where penalty is discretionary satisfy s 5 requirement – expert evidence that substantial periods of imprisonment exceeding 12 months imposed for serious frauds
EXTRADITION – double criminality requirement of s 19(2) of the Extradition Act 1988 (Cth)– fraud offences in South Africa in respect of breaches of exchange control regulations – no equivalent exchange control system in Australia – whether “equivalent conduct” if committed in NSW would have constituted an extradition offence – what can be taken to constitute “equivalent conduct” for the purposes of s 19(2) – significance of the Attorney-General’s discretion under s 22 not to surrender an eligible person
EXTRADITION – whether supporting document requirements of s 19(3) complied with – whether bench warrant for breach of bail produced by requesting country satisfies s 19(3)(a) requirements – whether copy warrant duly authenticated – whether warrant sufficiently described offences
EXTRADITION – extradition objections – prosecuting for political opinions (s 7(b)) and/or prejudice on account of political opinions (s 7(c)) – how trial judge used both the material that was before s 19 magistrate and the magistrate’s findings on disputed and conflicting evidence – s 21(6)(d) requirement that court only have regard to material that was before magistrate – whether material that is rejected or inadmissible is nonetheless ‘before the magistrate’ – weight given by trial judge to rejected material and to credibility findings – s 7(a) political offences – whether trial judge misconceived nature and content of pure political offences
Extradition Act 1998 (Cth) ss 5, 7, 10, 19, 21
Crimes Act 1914 (Cth) s 29B, s 29D
Crimes Act 1900 (NSW) ss 176A, 178BA, 178BB
Treaty on Extradition between Australia and the Republic of South Africa, Art 16(3)
Dutton v O’Shane [2002] NSWSC 1086 approved
Republic of South Africa v Dutton (1997) 77 FCR 128 cited
Crampton v The Queen (2000) 206 CLR 161 cited
Coulton v Holcombe (1986) 162 CLR 1 cited
Schliske v Federal Republic of Germany (1987) 14 FCR 424 cited
Harris v Attorney-General (Commonwealth) (1994) 52 FCR 386 cited
Director of Public Prosecutions (Commonwealth) v Kainhofer (1995) 185 CLR 528 cited
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 referred to
Bennett v United Kingdom (2000) 179 ALR 113 cited
Abebe v The Commonwealth (1999) 197 CLR 510 cited
In re Judiciary and Navigation Acts (1921) 29 CLR 257 cited
R v Morris [1951] 1 KB 394 cited
Verrier v Director of Public Prosecutions [1967] 2 AC 195 referred to
De Bruyn v Republic of South Africa (1999) 96 FCR 290 applied
McDade v United Kingdom [1999] FCA 1868 applied
R v Chief Metropolitan Stipendiary Magistrate, ex parte Secretary of State for the Home Department [1989] 1 All ER 151 referred to
Riley v Commonwealth (1985) 159 CLR 1 considered
Linhart v Elms (1988) 81 ALR 557 considered
Re Collins (No 3) (1905) 10 CCC 80 referred to
Brauch v Raiche 618 F.2d 843 (1980) applied
Heilbronn v Kendall 775 F Supp 1020 (1991) applied
In re Anderson (1860) 20 UCQB 124 considered
Atkinson v United States of America Government [1971] AC 197 applied
Macleod v The Queen (2003) 197 ALR 333 cited
Spies v The Queen (2000) 201 CLR 603 cited
The Queen v Kastratovic (1985) 42 SASR 59 cited
Welham v Director of Public Prosecutions [1961] AC 103 considered
Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 cited
Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 cited
Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 cited
Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10 cited
Holloway v McFeeters (1956) 94 CLR 470 cited
Guillot v Hender (1999) 86 FCR 294 applied
Joyce v Grimshaw (2000) 105 FCR 232 applied
Hellenic Republic v Tzatzimakis [2003] FCAFC 4 cited
Ujiie v Republic of Singapore [1995] FCA 855 applied
Cabal v United Mexican States (No 3) (2000) 186 ALR 188 applied
Cabal v United Mexican States (2001) 108 FCR 311 applied
Fernandez v Government of Singapore [1971] 1 WLR 987 cited
Pasini v United Mexican States (2002) 209 CLR 246 applied
Cabal v United Mexican States (No 2) (2000) 172 ALR 743 considered
Knauder v Moore [2002] FCAFC 404 cited
Sankey v Whitlam (1978) 142 CLR 1 cited
Tickner v Chapman (1995) 57 FCR 451 cited
Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 cited
Nicholas v The Queen (1998) 193 CLR 173 cited
C M Van Stellevoldt BV v E L Carriers Inc [1983] 1 WLR 207 cited
Evans v Bartlam [1937] AC 473 considered
D’Antuonoi v Minister for Health (1997) 80 FCR 226 considered
McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 cited
Suvaal v Cessnock City Council [2003] HCA 41 cited
R v Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931 cited
Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 cited
Stanbrook and Stanbrook, Extradition Law and Practice (2nd ed, 2000)
Aughterson, Extradition – Australian Law and Procedure (1995)
Gilbert, Aspects of Extradition Law (1991)
Bassiouni, International Extradition (4th ed, 2002)
La Forest, La Forest’s Extradition To and From Canada (3rd ed, 1991)
Blainey, Gold and Paper: A History of the National Bank of Australasia Ltd (1958)
Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000)
Shearer, Extradition in International Law (1971)
31A Am Jur 2d, “Extradition”
EDWARD ISAAC DUTTON v PATRICIA JUNE O’SHANE, THE REPUBLIC OF SOUTH AFRICA
N1288 of 2002
FINN, DOWSETT & CONTI JJ
26 AUGUST 2003
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
| |
| NEW SOUTH WALES DISTRICT REGISTRY | N1288 OF 2002 | |
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES
| BETWEEN: | EDWARD ISAAC DUTTON APPELLANT
|
| AND: | PATRICIA JUNE O'SHANE FIRST RESPONDENT
THE REPUBLIC OF SOUTH AFRICA SECOND RESPONDENT
|
| FINN, DOWSETT & CONTI JJ | |
| DATE OF ORDER: | |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the second respondent’s costs of the appeal.
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 | N1288 OF 2002 | |
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES
| BETWEEN: | EDWARD ISAAC DUTTON APPELLANT
|
| AND: | PATRICIA JUNE O'SHANE FIRST RESPONDENT
THE REPUBLIC OF SOUTH AFRICA SECOND RESPONDENT
|
| JUDGES: | FINN, DOWSETT & CONTI JJ |
| DATE: | |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
FINN & DOWSETT JJ:
1 This is another hydra-headed extradition appeal. It is against a judgment of James J of the Supreme Court of New South Wales which determined that the appellant, Edward Isaac Dutton, was eligible for surrender to the Republic of South Africa in relation to fourteen offences with which he has been charged in that country: Dutton v O’Shane [2002] NSWSC 1086.
2 There are nineteen grounds of appeal which fall, broadly, into the following categories. (i) Were the offences in question “extradition offences” for the purposes of s 5 of the Extradition Act 1998 (Cth) (“the Act”) and did the conduct constituting some or all of those offences satisfy the “double criminality” requirement of s 19(2)(c) of the Act? (ii) Had the “supporting documents” requirements of s 19(3) of the Act been complied with? (iii) Did the trial judge err in rejecting the extradition objections made? In the last of these, issues were raised relating to the proper manner of conduct of the “review” mandated by s 21 of the Act.
FACTUAL BACKGROUND
3 The following, generally undisputed, summary of background material has in the main been prepared by the appellant. It has been drawn from James J’s judgment and is sufficient for present purposes.
4 On 28 December 1989, Mr Dutton (“the appellant”) was arrested in South Africa. In 1991 he was served with an indictment charging him with fourteen counts of fraud and fourteen counts of forgery. Subsequently, in 1992, he was served with an indictment charging him with the fourteen counts of fraud only. The substance of the allegations concerns his making of fraudulent misrepresentations between 1986 and 1989 when companies controlled by him either purchased or sought to purchase foreign currency under the foreign exchange laws then in force in South Africa.
5 In the Preamble to the indictment it was alleged that the appellant controlled the South African companies E Dutton Holdings Pty Limited (“EDH”), Interboard SA, Interboard Limited and Board World Pty Limited (“Board World”) and that he controlled an overseas trust which controlled the overseas companies Interboard Holdings BV, Interboard NANV, Partic Industrial Company Limited (“Partic”) and Ligneus Processing and Engineering Company Limited (“Ligneus”).
6 In counts 1 to 7, which were not pleaded individually, it was alleged that the appellant (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa, or its agent, that Board World had purchased plant from Partic and owed foreign currency to Partic for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to sell foreign currency, whereas in fact Board World had not purchased any plant from Partic and did not owe any foreign currency to Partic.
7 In count 8 it was alleged that the appellant (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa, or its agent, that Board World had entered into a contract with Ligneus for the purchase of an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to sell foreign currency, whereas in fact there was no genuine contract and Board World did not owe any foreign currency to Ligneus.
8 In count 9 it was alleged that the appellant (in making an application for foreign currency) had falsely represented to a South African bank, the First National Bank of Southern Africa, that Board World had entered into a contract with Partic for the purchase of an item of plant and owed foreign currency to Partic and had thereby induced the First National Bank of Southern Africa to sell foreign currency, whereas in fact Board World had not entered into any contract with Partic and did not owe any foreign currency to Partic but had purchased the item of plant in question from a different company at a different, lower price.
9 In count 10 it was alleged that the appellant (in making an application for foreign currency) had falsely represented to another South African bank, the International Bank of Johannesburg, that EDH had entered into a contract with Ligneus to purchase an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the International Bank of Johannesburg to sell foreign currency, whereas in fact there was no genuine contract between EDH and Ligneus and EDH did not owe any foreign currency to Ligneus.
10 In count 11 it was alleged that the appellant (in making an application for foreign currency) had falsely represented to the First National Bank of Southern Africa and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs, whereas in fact EDH was not under any such obligation. In count 11 it was alleged that the First National Bank of Southern Africa was induced by the false representation to believe that EDH was under an obligation to Partic, but it was not alleged that any foreign currency was actually sold.
11 In count 12 it was alleged that the appellant (in making an application for foreign currency) had falsely represented to the International Bank of Johannesburg and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs and had thereby induced the International Bank of Johannesburg to sell foreign currency, whereas in fact EDH was not under any such obligation.
12 In count 13 it was alleged that the appellant falsely represented to the Standard Bank of South Africa that the costs up to two specified dates of plant being installed at a factory owned by EDH were certain figures, that the value placed on the plant was fair and the plant was new and unused, and that EDH had entered into a contract with Partic for the purchase of an item of plant, and that the appellant had thereby induced the Standard Bank of South Africa to purchase the plant at a certain figure and lease it to Interboard SA, whereas in fact the figures for the costs of the plant up to the specified dates were falsely and grossly inflated, the value placed on the plant was not fair, and the plant was not new and unused and the purported contract with Partic was forged or fabricated.
13 In count 14 it was alleged that the appellant falsely represented to the First National Bank of Southern Africa that a share certificate for shares in Interboard was a certificate for a new issue of shares, that documentation verifying that the issue was a new issue was not yet available due to a delay in the typing pool at the Johannesburg Stock Exchange and that the reason for the new issue was that Interboard wished to settle a debt it owed to EDH, and that the appellant had thereby induced the First National Bank of Southern Africa to release financial rand currency from an account of Interboard NANV at one of its branches.
14 The concluding part of the document contained a “Summary of Substantial Facts” referable to the various counts. This is set out in James J’s judgment. It is unnecessary to repeat it here.
15 On 27 January 1992, the appellant’s trial on the fourteen counts commenced in the Supreme Court of South Africa (Witwatersrand Local Division) before Judge Streicher. James William de Villiers was the leader of the prosecution team. At the end of 1993, the prosecution closed its case. On 7 February 1994, the appellant failed to appear at court and a warrant was issued for his arrest pursuant to s 67 of the South African Criminal Procedure Act (“the s 67 warrant”). The s 67 warrant contained recitals the first of which was that the appellant had “been charged with the crime of fraud”. There was no further specification of the offences charged. For the purpose of making a request that the appellant be extradited from Australia, Mr de Villiers subsequently requested Judge Streicher to amend the bench warrant by adding “(14 counts)” after the word “fraud” in the first recital. Judge Streicher complied.
16 On 3 October 1995, the second respondent made a request for the appellant’s extradition from Australia (“the first request”). On 4 October 1995, a warrant for the appellant’s arrest was issued pursuant to s 12 of the Act. On 24 November 1995, the appellant was arrested and taken into custody. On 18 November 1996, a first hearing to determine eligibility for surrender commenced before a magistrate pursuant to s 19 of the Act. The magistrate held that much of the evidence sought to be relied on by the second respondent failed to satisfy the “sufficient evidence test” under subs 11(5) of the Act, and was inadmissible. On such evidence as was admissible, the magistrate ordered the appellant’s release from custody. The second respondent sought review of the magistrate’s determination. Before the trial of the proceedings commenced, Hill J determined a series of separate questions: Republic of South Africa v Dutton (1997) 77 FCR 128. On 21 May 1997, the Extradition (Republic of South Africa) Regulations were made removing the need for the second respondent to satisfy the sufficient evidence test in an application for extradition by it.
17 On 2 January 1998, the second respondent made a second request for the appellant’s extradition (“the second request”). On 6 February 1998, a magistrate issued a provisional warrant for the appellant’s arrest under subs 12(1) of the Act. On 17 February 1998, the appellant was again arrested and remanded in custody. On 5 March 1998, he was granted conditional bail, and on 14 March released on bail.
18 On 29 July 1999, a second hearing to determine the appellant’s eligibility for surrender in relation to the extradition offences was commenced before Patricia June O’Shane, the first respondent, pursuant to s 19 of the Act (“the s 19 hearing”). The hearing continued throughout 1999 and 2000. On 1 December 2000, the first respondent reserved her decision. On 18 December 2000, the first respondent gave her reserved decision, holding that the appellant was eligible for surrender. Consequential orders were made. The appellant was remanded in custody pursuant to par 19(9) of the Act.
19 On 20 December 2000, the appellant sought review of the first respondent’s decision pursuant to s 21 of the Act (“the s 21 review”). The hearing proceeded over a number of days in 2001 and 2002. On 20 November 2002, James J determined, pursuant to s 21(6)(g) of the Act, the appellant’s eligibility for surrender in relation to the offences charged in the indictment.
20 There are several additional matters to which reference should be made. First, though an extradition treaty was agreed between Australia and the Republic of South Africa on 13 December 1995 that treaty did not come into force. It was replaced by a new treaty done in Canberra on 9 December 1998. That treaty did not come into force until 1 August 2001. As the second extradition request was made prior to the coming into force of this treaty, its provisions did not apply to the request: Treaty on Extradition between Australia and the Republic of South Africa, Art 16(3).
21 Secondly, though the appellant was not charged with exchange control offences, those offences were alleged to have occurred in an exchange control setting. To understand the significance of some of the submissions made on this appeal, it is necessary to provide some outline of South Africa’s exchange control regime at the relevant time. It had no counterpart in this country’s exchange control regulation. The following is drawn directly (though reordered somewhat) from Mr de Villiers’ affidavit. We should add that that affidavit also contained a “Statement of Acts and Omissions” referable to each count in the indictment that ran over more than thirty pages.
22 At all material times South Africa regulated its foreign exchange dealings. Up until 13 March 1995 an integral part of its regulatory regime was a system of dual exchange rates. One exchange rate was known as the commercial rand rate while the second rate was known as the financial rand rate. Which exchange rate applied depended on the purpose or origin of the transaction. Generally, South African residents were only able to deal in commercial rand while financial rand were available to non-residents of South Africa. A resident was defined as a natural or legal person and, therefore, included corporations incorporated in South Africa.
23 The financial rand exchange rate was always at a lower rate than the commercial rand rate, ie US$1.00 would purchase more financial rand than commercial rand. Because of the differential between the two rates, if a person bought foreign currency using commercial rand and then was able to convert the foreign currency back into rand at the financial rand rate, he or she would make a profit.
24 Where a non-resident had purchased assets in South Africa, when those assets were sold the proceeds could only be converted into foreign currency using the financial rand exchange rate. It was an offence to convert rand acquired from the sale of such assets into foreign currency at the commercial rand rate. (As non-residents were allowed to purchase assets in South Africa at the financial rand rate, they also had to sell such assets at the same rate.)
25 The exchange control regulations restricted the ability of South African residents to acquire and export foreign currency. The approval of the South African Reserve Bank or an Authorised Dealer in foreign exchange (which were banks appointed by the Minister of Finance) had to be obtained before a South African resident could acquire foreign currency and export it from South Africa. Reserve Bank approval could be obtained where a South African resident required foreign currency for the purpose of purchasing capital equipment (plant) from a foreign supplier. It was an offence to export funds from South Africa without the approval of the Reserve Bank or an Authorised Dealer in foreign exchange.
26 The Minister had appointed certain banks to act as Authorised Dealers. This appointment gave those banks the right to buy and sell foreign currency, but only under conditions prescribed by the Treasury. The appointment enabled the banks concerned to dispose of the bulk of their customers’ day to day commercial and financial transactions involving foreign currency under conditions and within limits as prescribed by the South African Reserve Bank. Transactions falling outside these prescribed parameters had to be referred to the South African Reserve Bank for consideration.
27 Only some branches of the Authorised Dealer Banks referred to above were appointed to deal in financial rand. These banks are referred to in these reasons as “authorised banks”. The banks used by Mr Dutton to remit foreign currency abroad or used to cause financial rand to be released were authorised banks.
28 The financial rand system was abolished in South Africa on 13 March 1995. The rest of the Regulations, Orders and Rules, as amended from time to time remained in place.
EXTRADITION OFFENCES AND DOUBLE CRIMINALITY
(a) Extradition Offences
29 A person is only extraditable for an “extradition offence”: the Act, s 7. An extradition offence is defined in s 5 to mean (insofar as presently relevant):
“(a) in relation to a country other than Australia – an offence against a law of the country:
(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months;
(ii) if the offence does not carry a penalty under the law of the country – the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia.”
30 Mr de Vries’ affidavit supporting the extradition request, after describing the offence of fraud (with which Mr Dutton had been charged), made the following reference to penalty:
“PENALTY FOR FRAUD
Section 276 of the South African Criminal Procedure Act, Act No 51 of 1977, provides that the following sentences may be passed upon a person convicted of an offence, which will include fraud:
(a) …
(b) imprisonment
(c) periodical imprisonment
(d) declaration as a habitual criminal
(e) committal to any institution established by law
(f) a fine
(g) …
(h) correctional supervision
(i) imprisonment from which such a person may be placed under correctional supervision in his discretion by the Commissioner.”
The nature of the penalty imposed by the Court is discretionary and may, in serious cases, be a combination of, for example, imprisonment (of which a portion may be suspended at the discretion of the Court) coupled with a fine, or it may be one of imprisonment only. The exact nature will be determined by the facts and circumstances of the case and the Court’s interpretation thereof. There is no maximum penalty set by law in relation to fraud.
Precedents governing sentence as set by the Highest Court of Appeal in South Africa for this type of offence reflect substantial periods of imprisonment and are indicative that it is highly unlikely that a sentence of less than twelve (12) months imprisonment will be imposed for offences as serious as those set out in the indictment in the instant case, a true copy of which is annexed and marked with the letter “B”.
See S v Holder, 1979(2) SA 70 (AD)
In respect of counts 1, 3-10 and 12-14 it is expected that a sentence of between 6 and 14 years on each count will be imposed, running concurrently, having regard to the facts of this matter. In respect of counts 2 and 11 it is expected that a lesser sentence will be imposed, but still in excess of 1 year on each count (running concurrently).”
31 The question this is said to raise – and it was raised for the first time in the course of the appeal – is whether the fraud offences charged are “extradition offences”. Though advance leave to file and serve an amended notice of appeal was given on the second day of hearing of the appeal, the second respondent later opposed the raising of this new ground. As both parties in written submissions have reargued whether leave should be / should have been granted, it is appropriate to consider the leave question afresh.
(i) Should leave be granted
32 It is unnecessary to rehearse the contrary submissions made on this issue. It is clear that the magistrate satisfied herself that each of the fourteen fraud counts fell “squarely within” the definition of an extradition offence and did so in reliance upon Mr De Vries’ affidavit. It is common ground that this point was neither taken nor sought to be taken before James J.
33 Notwithstanding that the power to grant leave should only be exercised in exceptional circumstances: Crampton v The Queen (2000) 206 CLR 161 at [10]; the present (subject to one matter to which we refer below) is properly to be characterised as such a case. It is not one in which the respondents either would have called additional evidence before the magistrate to meet the ground or would have conducted the case differently: Coulton v Holcombe (1986) 162 CLR 1 at 7-8. Rather the ground itself relates to a narrow question of construction confined to a discrete piece of evidence in Mr de Vries’ affidavit which was before both the magistrate and James J. If successful, it will provide a complete answer to the extradition request: Crampton v The Queen at [21] and [118]. Having regard to the dramatic consequences of extradition – a matter emphasised in some number of decisions of this Court: see eg Schliske v Federal Republic of Germany (1987) 14 FCR 424 – the interests of justice require that the point be entertained – if it is an available point open to be raised in an appeal of the present type.
34 This brings into focus the matter to which we foreshadowed reference. It was raised by the second respondent who asserts that if leave were granted it would be futile. It is contended that it was no part of the magistrate’s role at a s 19 hearing to determine whether the South African offences were extradition offences. That issue, not being before the magistrate, could not be raised in a s 21 review or an appeal therefrom. This submission is founded on the staged manner in which extradition proceedings take place: Harris v Attorney-General (Commonwealth) (1994) 52 FCR 386 at 389; for an analysis of that staged process see Director of Public Prosecutions (Commonwealth) v Kainhofer (1995) 185 CLR 528.
35 The essence of the submission is that the question whether a person is an “extraditable person” is to be determined administratively by a magistrate under s 12 of the Act and by the Attorney-General under s 16. Having regard to the definition of an “extraditable person” in s 6 (which required the relevant offence to be an “extradition offence”), these determinations dealt with the question sought now to be raised on appeal. There is scope under s 39B of the Judiciary Act 1903 (Cth) to seek judicial review of at least the Attorney-General’s decision (as to the magistrate, see Kainhofer at 541-542). But the determination itself cannot be revisited in the hearing under s 19, or the review or an appeal under s 21 of the Act. The s 19 magistrate and the court “must proceed on the footing that the [s 12] order and the [s 16] notice … were validly made … [T]he s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person”: Kainhofer at 539.
36 The appellant’s contention is that the very function imposed on the magistrate by s 19 extends to consideration of the person’s eligibility for surrender in relation to an extradition offence. The expression “extradition offence” recurs throughout s 19. The s 19 magistrate is not required to consider whether the person on remand is an “extraditable person”. That is the Attorney-General’s s 16 function and the s 12 magistrate’s function. But the s 19 magistrate nonetheless must consider whether the relevant offence is one for which the person could be eligible for surrender.
37 In the Full Court decision in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 it was held (prior to Kainhofer) that an issue the magistrate was required to consider was (at 303): “Is the offence one which qualifies as an extradition offence?” This has been followed subsequent to Kainhofer, Katz J noting the possible conflict with Kainhofer but that no argument was put to him in relation to it: Bennett v United Kingdom (2000) 179 ALR 113 at 118-119.
38 This issue is not one which it is necessary to resolve in this proceeding, given the view we take of the ground of appeal itself. We would, though, indicate that its proper resolution may raise directly, though in another guise, the constitutional issue to which reference will later be made in these reasons. We would indicate additionally that the respondent’s submission goes quite some distance, in our view, to falsify one of the declared objects of the Act which is –
“(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be extradited without determining the guilt or innocence of the person of an office”. Emphasis added.
It may be, though, that despite this object the legislature only intended the court conducting a s 21 review to be seised of part of the “matter”: cf Abebe v The Commonwealth (1999) 197 CLR 510; assuming there is a matter: In re Judiciary and Navigation Acts (1921) 29 CLR 257.
39 We would confirm the leave to amend that has been given.
(ii) Are the offences extradition offences?
40 A function of the “supporting documents” to be produced to the magistrate under s 19(2) of the Act is, as s 19(3)(c)(i) indicates, to provide the magistrate with –
“a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence”.
Such was one of the burdens of Mr de Vries’ affidavit. The sole question raised by the ground of appeal is whether the description given in the affidavit revealed the offence of fraud in South Africa to be, for present purposes, one for which the maximum penalty is imprisonment, or other deprivation of liberty, for a period of not less than 12 months.
41 The first matter we would emphasise is that the s 5 definition of “extradition offence” is not concerned with whether there are other alternate and lesser possible penalties, nor with the actual penalty likely to be imposed on the person whose extradition is being sought: as to the latter see Bennett v United Kingdom at [60].
42 The concern with a maximum penalty seems to be to exclude from the extradition process “minor offences carrying too small a penalty to qualify as extradition offences”: cf Replacement Explanatory Memorandum, Extradition Bill 1987, 22-23; see also Stanbrook and Stanbrook, Extradition Law and Practice, para 2.07 (2nd ed, 2000). This said, the Act, exceptionally, does envisage the possibility of there being an extradition offence created by an extradition treaty itself but for which no penalty is prescribed under the law of the requested country: s 5 “extradition offence” (a)(ii); Replacement Explanatory Memorandum, 4-5; Aughterson, Extradition – Australian Law and Procedure, 55-56 (1995). Such is not the present case.
43 The expert evidence on South African law is that (i) the offence of fraud does carry a penalty (or penalties) but that, within the enumerated list of possible penalties, the penalty is at large; (ii) no maximum penalty is set by law; (iii) the penalty imposed is in the discretion of the court; and (iv) substantial periods of imprisonment well in excess of 12 months have been imposed for serious frauds.
44 This state of affairs, as the parties have acknowledged, is analogous to that which prevailed at common law with misdemeanours where the penalty was at large: for a brief history see R v Morris [1951] 1 KB 394. So, for example, in Verrier v Director of Public Prosecutions [1967] 2 AC 195 the House of Lords rejected the contention that the length of term of imprisonment for a common law misdemeanour was limited to a maximum of two years. It was affirmed that the length of the imprisonment was in the discretion of the court.
45 On the evidence in this matter, it cannot be said that the maximum penalty for the offence of fraud in South Africa is imprisonment or other deprivation of liberty “for a period of … less than 12 months”: s 5 (emphasis added). The evidence is clearly to the contrary. And it was, in our view, properly receivable as “a statement setting out … the penalty applicable in respect of the offence”: s 19(3)(c)(i). The object of such a statement was, at least, to provide the evidentiary foundation for the conclusion that the penalty qualifies the offence in question as an extradition offence.
46 The appellant has contended that the s 5 definition requires that a maximum penalty be prescribed for the offence and absent such prescription the offence is not, in the present matter, capable of satisfying the definition of an “extraditable offence”. It is not at all apparent to us why it should be concluded that such prescription is necessary. The Act, in this respect, has imposed a necessarily arbitrary limit on what is a minimum maximum penalty that will suffice to constitute an extradition offence. If that limit is met, the seriousness of the offence is made out for the purposes of the Act. The actual maximum is a matter of no relevance at all in the scheme of the Act. As with the penalty at common law for a misdemeanour, South African law on the evidence does not have a maximum penalty for fraud that is less than the prescribed minimum of the Act. The offence, in consequence, is an extradition offence.
47 One of the prescribed criteria for determining whether a person is eligible for surrender in relation to the extradition offence for which surrender is sought is the “double criminality” requirement of s 19(2)(c) of the Act. That sub-paragraph requires:
“the magistrate [to be] satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia.”
By way of elaboration, s 10(2) and s 10(3) provide (insofar as presently relevant):
“(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
(3) In determining for the purposes of … paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions.”
48 One of the less satisfactory features of the double criminality requirement in this matter has been the “grape shot” approach taken by the second respondent to it. Mr Dutton was charged with fourteen counts of fraud. To demonstrate dual criminality, between four and seven equivalent Australian offences have been relied upon in respect of each count. The Republic of South Africa has been singularly reticent in committing itself to “best case” offences. This magnified the issues before the trial judge, as it has before this Court.
49 Of the first twelve counts against Mr Dutton there is a core of common equivalent offences (though we would note one of the counts relates to an attempt). There are as well two other alleged equivalent offences which can be dealt with separately. The “core” offences are drawn from the Crimes Act 1914 (Cth) and the Crimes Act 1900 (NSW). It is necessary to refer in detail to all of these.
(1) The Crimes Acts offences
50 The relevant Commonwealth provisions are s 29B and s 29D. The former provides:
“False representation
Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence.
Penalty: Imprisonment for 2 years.”
Section 29D provides:
“Fraud
A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.
Penalty: 1,000 penalty units or imprisonment for 10 years, or both.”
51 The New South Wales Crimes Act provisions are s 176A, s 178BA and s 178BB. These provide respectively, insofar as presently relevant:
“S 176A Directors etc cheating or defrauding
Whosoever, being a director, officer, or member, of any body corporate or public company, cheats or defrauds, or does or omits to do any act with intent to cheat or defraud, the body corporate or company or any person in his or her dealings with the body corporate or company shall be liable to imprisonment for 10 years.”
S 178BA Obtaining money etc by deception
(1) Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years.
(2) In subsection (1)
deception means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:
(a) a deception as to the present intentions of the person using the deception or of any other person.
S 178BB Obtaining money etc by false or misleading statements
(1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.”
52 On the s 21 review, James J held that if the conduct constituting the offences charged in the first twelve counts of the indictment of Mr Dutton had taken place in New South Wales, that conduct would have constituted offences under each of the above five statutory provisions.
53 While there is a separate ground of appeal against this finding as it relates to s 29B and s 29D of the Crimes Act (Cth), the principal and common ground of appeal against the above finding is encapsulated in a passage of James J’s judgment that the appellant acknowledge puts his case in a reasonable and fair way. It is as follows:
“The principal submission made by counsel for Mr Dutton in regard to these sections of the Commonwealth and New South Wales Crimes Acts was that, in order to determine whether the requirement of dual criminality under s 19(2)(c) were satisfied, it was necessary to look at Mr Dutton’s alleged conduct in South Africa “in its specificity”. In the case of each of the first twelve counts the alleged conduct by Mr Dutton in South Africa was the making by him to a bank of a knowingly false representation that a South African company controlled by him was purchasing equipment from an overseas supplier, the representation being made by Mr Dutton with the intention of inducing the representee to permit him to buy foreign currency at the favourable commercial rand rate of exchange. It was submitted that such representations could only be made and could only have any materiality in a country in which there were foreign exchange controls and a system of dual exchange rates. Such representations could not have been made in Australia, because of the absence in Australia of foreign exchange controls and dual exchange rates. Even if such representations could have been made in Australia, they would have been quite immaterial to any providing of foreign currency by a bank and hence could not have been made with the intention of inducing a bank to provide foreign currency and could not have operated as any inducement to a bank to provide foreign currency.” Emphasis added.
54 What flows from the submission, as James J indicated, was that:
“Even if similar representations had been made in New South Wales, they could not have been made by the representor with a view to obtaining an advantage (s 29B of the Commonwealth Crimes Act); the representee could not have been defrauded by the making of the representation (s 29D of the Commonwealth Crimes Act); the representor could not have defrauded anyone by the making of the representation (s 176A of the New South Wales Crimes Act); the representor could not have obtained any advantage by the making of the representation (s 178BA of the New South Wales Crimes Act); and the representor could not have had the intention of obtaining an advantage by the making of the representation (s 178BB of the New South Wales Crimes Act).”
55 It is quite clear from the terms of s 19 of the Act that the relevant conduct that the magistrate and then the court on review was to evaluate for double criminality purposes was to be that contained in the authenticated statement prescribed by s 19(3)(c)(ii) that set out “the conduct constituting the offence” and which was to be included in the “supporting documents” produced to the magistrate: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at 292.
56 There is some controversy in this matter as to what in the supporting documents ought be taken as constituting the statement of conduct. This is dealt with separately later in these reasons. For present purposes we simply assume (as we later find) that the statement is contained compositely in the Indictment (which itself contains a “Summary of Substantial Facts”) and Mr de Villiers’ supporting affidavit (which sets out at some length a “Statements of Acts and Omissions”). It is well accepted that the statement may be constituted by a number of documents: McDade v United Kingdom [1999] FCA 1868 at [30]. We would also note that James J found that the statement in this case was made up of the documents to which we have referred.
57 It is well known that both within and between common law jurisdictions, varying approaches have been taken in applying the double criminality requirement: see generally Gilbert, Aspects of Extradition Law, para 3.5.3 (1991); Stanbrook and Stanbrook, above, ch 2; Bassiouni, International Extradition, 465ff (4th ed, 2002); Aughterson, above, 59ff. It is unnecessary for present purposes to enter upon the reasons for those variations other than to say that the supposed imperatives of differing statutory regimes (often cast in terms quite different from those of the Act) have played some part in this.
58 For Australian purposes, the law to be applied is reasonably well settled, save in one important respect which is highlighted by the appellant’s submission. The relevant inquiry mandated by s 19(2) of the Act is not whether there is a correspondence between the legal elements of offences under the municipal criminal laws of the requesting State and of the relevant part of Australia. It is whether the conduct constituting the offence in the requesting State constitutes (subject to a proviso noted below) an extradition offence in that part of Australia in which the proceeding is conducted. The relevant inquiry is conduct based, hence the significance of the statement of the conduct constituting the offence in s 19(3)(c)(ii). As the Full Court observed in Zoeller v Republic of Germany at 297:
“What is relevantly required [by s 19(3)(c)(ii) when read in light of s 10(2)] is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought”: emphasis added.
59 We would note in passing that the words highlighted above capture the burden of the appellant’s submission: what was actually done in South Africa could not constitute an offence if done in Australia.
60 We referred above to there being a proviso to the proposition that the same conduct must constitute an offence in both countries.
61 It has long been recognised that the actual conduct giving rise to an offence in one country could not constitute an offence in another because the conduct in question presupposes a particular environment, be it geographic, demographic, cultural or institutional, that is absent in the other country. This recognition has prompted two quite contrary responses. The first, reflected in the double criminality requirement itself, is to preclude extradition for such an offence. And it is this that provides a partial explanation for why fiscal offences as such are often not extraditable in fact. As was said in a UK Home Office report (quoted in Stanbrook and Stanbrook at 2.68):
“[Any State’s] fiscal law reflects a complex picture of prevailing social, economic, commercial and political conditions which cannot be expected to correspond precisely with fiscal law in another State where those conditions may be different. In such cases it would seem most unlikely that acts committed in contravention of a foreign tax law would be the same as those necessary to establish a breach of United Kingdom law.”
62 We would note in passing that the Treaty of Extradition now in force between Australia and South Africa (though not so at the time relevant to the present matter) addresses fiscal offences directly:
“Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, foreign exchange control or other revenue matter extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting State.”
63 We would also note because of its present relevance that conduct giving rise to a fiscal offence may also give rise to a dishonesty offence of some kind (eg fraud, theft, deception, etc) in both countries and is able to be capable for that reason of satisfying the double criminality requirement: Zoeller’s case; R v Chief Metropolitan Stipendiary Magistrate, ex parte Secretary of State for the Home Department [1989] 1 All ER 151.
64 The contrary response, which is not inimical to extraditability, is reflected in an 1880 resolution of the Institute of International Law (quoted in Aughterson, at 78):
“as a rule it should be required that the Acts to which extradition applies be punishable by the law of both countries, except in cases where by reason of particular institutions or of the geographical situation of the country of refuge the actual circumstances constituting the offence cannot exist.” Emphasis added.
The possibility recognised in this that extradition should be available in such circumstances is reflected in the language of the double criminality requirement of s 19(2)(c): the relevant inquiry is into whether “if the conduct … constituting the offence …, or equivalent conduct, had taken place in the part of Australia …” etc.
65 There has not been significant judicial exegesis of the manner and extent to which the allowance for “equivalent conduct” in the s 19(2)(c) inquiry permits a metamorphosis of the “conduct constituting the offence”. In Riley v Commonwealth (1985) 159 CLR 1 at 8 it was said that an “equivalent conduct” type formula would permit a geographical transposition such that, for example, “the act of importing narcotics into Australia is an ‘equivalent act’ to the act of importing narcotics in the United States”.
66 The later decision of Linhart v Elms (1988) 81 ALR 557 involved the construction of the elliptically worded s 4(1B) of the Extradition (Foreign States) Act 1966 (Cth). That section defined a “relevant act or omission” for the purposes of the double criminality provision to include “any act or omission that is equivalent to an act or omission” which is alleged to have taken place. Fox J (at 571) observed of this provision:
“By the very nature of extradition law, when double criminality in one sense or another has to be established, a translation or substitution of some factors has to take place. Locality is an obvious one, but, depending on the context, institutions, officials and procedures are others. There is in addition the reference to “equivalence” in the legislation: s 4(1B)(b). The question of the outer bounds of this concept fortunately does not arise for decision in this case, but there is therein at least a formal sanction for making adaptations such as I have mentioned. The appearance of the relevant words in a separate paragraph makes it plain that they add something to what appears in para (a).
As I have indicated, I do not think the case calls for a close examination of the phrase. What exactly is meant by an act or omission being equivalent to an act or omission is not easy to determine. Inasmuch as equivalence can only be judged according to some standard, or purpose, or other external factor, there would seem to be an ellipsis. I have indicated that even without para (b) some translation must be required.” Emphasis added.
His Honour went on to refer to Riley and indicated (at 572) that it was clear that “a full or complete exegesis” was not there intended to be given to the “equivalent act or omission” formula in s 4(1B).
67 For his part Gummow J considered (at 579-580) that the relevant double criminality provisions –
“require a translation or substitution of locality. In many cases, that may be sufficient to enable one to say that the offence for which the requisition or surrender has been made is an extradition crime. For example, there would be many offences against the person under foreign law or local law, the constituent acts of which have no particular national or territorial character other than the presence of the offender and victim in a particular jurisdiction at the time of the commission of the offence. In this way, the provisions in s 4 place primary emphasis on the acts constituting the offence alleged against the fugitive, rather than any general theoretical correspondence between the legal elements, including principles of territoriality, of the offence which the fugitive is alleged to have committed against the law of the requesting State and some offence recognised by local law: cf Riley v Commonwealth (1985) 62 ALR 497; 159 CLR 1 at 17-18, per Deane J.
The position becomes more complicated where the offence under foreign law contains elements which in terms require acts or omissions in relation to institutions or organisations which are established under that law and have a purely parochial character. Examples are suggested by the reference in the facts in support of the first charge to concepts and institutions of German company law and by s 563(2) of the Companies (NSW) Code, with the reference therein to the National Companies and Securities Commission. Section 4 of the Act deals with such situations by asking, inter alia, whether if an act or omission that is equivalent (emphasis supplied) to an act or omission which is in the relevant requisition alleged to have taken place, had taken place at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the fugitive was found, that equivalent act or omission would have constituted an offence against the Australian local law and have attracted the appropriate penalty.
…
Whatever else is within the ambit of the term “equivalent” in s 4 of the Act, something not necessary to decide in this case, in my view it poses the question, as a matter of practical judgment, whether the acts in question allegedly committed in relation to and by reference to German company law and administration thereof were such that equivalent acts would have constituted an offence against s 563(2) of the Companies (NSW) Code. The notion of “equivalence”, in my view, imports a meaning of corresponding significance between the two legal systems, and of a correspondence in relative position or function.”
68 It has, in our view, properly been said of the double criminality requirement that “the institutions and laws of the foreign country must necessarily form the background against which to examine events occurring in that country”: La Forest’s Extradition To and From Canada, 69 (3rd ed, 1991). And this, as we consider both Fox and Gummow JJ acknowledged in Linhart,is irrespective of the express reference to “equivalent conduct” in s 19(2)(c). The forms of conduct that can give rise to many offences, particularly those of fraud, deception and dishonesty, are contrived by the institutional arrangements and practices which create the opportunities for the commission of such offences. Commonly, opportunities exist in one country that are not available in another. We merely instance frauds practised upon governments in the provision of services, approvals, licences, welfare payments, etc. As those services etc vary from country to country, so too do the opportunities to commit frauds involving them.
69 For this reason, the “practical judgment” to which Gummow J referred in Linhart requires one, when looking at the conduct constituting the offence in the extradition country, to ask what is the essence of that conduct in its setting when viewed by Australian eyes for the purpose of determining its criminality under municipal law. If the conduct so characterised satisfies the component elements or ingredients of what would be an extradition offence under the law of the part of Australia where the proceeding was taking place, that conduct, in our view, would constitute “equivalent conduct” for s 19(2) purposes. This process involves a form of abstraction and characterisation of Mr Dutton’s conduct which, to adapt the language used in the Canadian decision Re Collins (No 3) (1905) 10 CCC 80 at 101, requires you:
“to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused but upon the essence of his acts, in their bearing upon the [foreign] charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then [the double criminality] requirement is complied with.”
70 It is this approach which the second respondent pressed on James J and which James J accepted. We consider it is an approach which permits one to ascertain whether the conduct in question has “corresponding significance between the two legal systems”: cf per Gummow J above. And it is one that is reflected in Canadian and United States case law: see La Forest, at 69 and the cases noted therein; Brauch v Raiche 618 F.2d 843 (1980); Heilbronn v Kendall 775 F Supp 1020 (1991); albeit in their somewhat different extradition regimes. Both James J and this Court were taken to such authorities. We agree with James J that they provide support for conclusion at which he arrived. We equally agree with him that the differences between Australian, United States and Canadian extradition regimes and law do not rob them of that quality.
71 The appellant has in submissions in reply highlighted in examples what might be considered to be unpalatable consequences of acceding to the approach advocated by the second respondent and which we consider to be the correct one. We will not rehearse the examples provided, though we do accept that this approach underpinned “the notorious case of In re Anderson [(1860) 20 UCQB 124]”: Bassiouni, at 494. It is sufficient for present purposes if we quote La Forest’s brief description of the case (at 69):
“In Re Anderson, it was sought to extradite a slave, Anderson, from Upper Canada to Missouri to answer a charge of murder in that state. The homicide had occurred when the victim had attempted to prevent the slave from escaping. Under Missouri law, the victim was not only authorised but bound, in common with all other citizens of that state, to attempt to prevent the escape of slaves. In Canada, the institution of slavery did not exist and there was, of course, no law requiring citizens to apprehend escaping slaves. Had the incident occurred in Canada, therefore, Anderson might well have been justified in killing the victim in order to retain his liberty. It was nevertheless held by a majority of the Court of Queen’s Bench of Upper Canada that it had to deal with the case on the assumption that the victim had been acting with legal authority. That being so, the fugitive should be extradited; a person who in Canada killed a person who was attempting to apprehend him under legal authority would be guilty of murder.”
72 We do not consider it necessary to consider whether this result reflected the “practical judgment” to which Gummow J referred. However, it is appropriate to note La Forest’s response (at 70) to the criticism of the harsh results the approach may produce. The decision to surrender in Canada is not one for the courts but for the political authorities and it is for the political authorities to decide whether they will surrender “where matters offend against Canada’s public policy”.
73 It, likewise, is the case in this country that the court’s role in the extradition process is a limited and contrived one. It is the Attorney-General who is to determine whether an eligible person will be surrendered: s 22 of the Act. In cases where the s 19 determination process results in a determination that a person is eligible for surrender, it is for the Attorney-General by way of safeguard to consider whether, that determination notwithstanding, “it would be wrong, unjust or oppressive to surrender the man”: Atkinson v United States of America Government [1971] AC 197 at 232.
74 Our conclusion leads necessarily to the rejection of the appellant’s second ground of appeal which relies simply on the absence in Australia of foreign exchange controls and a system of dual exchange rates. It is necessary, nonetheless, to demonstrate that the “equivalent conduct”, had it taken place in New South Wales, would have constituted an extradition offence in relation to that State.
75 The appellant’s submissions on this matter focussed on the absence of equivalent exchange control regulation in Australia. It is contended that the relevant conduct of the appellant for s 19(2)(c) purposes in relation to counts 1 to 12 ought be characterised as:
(a) making representations;
(b) to an exchange release authority;
(c) as to the purpose for which the release of funds is required;
(d) with the intention of obtaining foreign currency at one (the commercial) rate of exchange, export the foreign currency, and return the foreign currency to be released into local currency at another (the financial) rate of exchange.
It is said that in New South Wales, similar or equivalent representations could not be made to an exchange release authority with the intention of inducing that authority to provide foreign currency. Nor could a similar or equivalent representation operate as an inducement to the authority to provide foreign currency. In the absence of a requirement for identification of purpose as a criterion for the release of funds, any such representation would be immaterial to the sale of foreign currency. In relation to allegations of dual criminality found in fraud offences, there could be no fraud in Australia based upon “round-tripping” because there are no foreign exchange regulations and there is no dual currency.
76 For its part the second respondent’s contention is that Mr Dutton’s conduct ought be characterised as conduct involving fraud, false representations to financial institutions and public authorities of the state and the fabrication of documents. That conduct involved:
(i) Making unlawful and false representations to various banks with an intention to defraud, knowing that the representations were false and in respect of some counts fabricating documents which were submitted to the banks.
(ii) The misrepresentations were to the prejudice of, inter alia, the parties to whom they were made and to third parties.
(iii) The misrepresentations induced parties to act to their detriment or were made with the intention of the Appellant or companies controlled by him gaining an advantage.
77 We have not set out the voluminous material in the supporting documents outlining the various acts and omissions of Mr Dutton in relation to the offences with which he has been charged. However, we are satisfied that for “equivalent conduct” purposes those acts and omissions in their setting can properly be characterised in the way advanced by the second respondent. We are in consequence satisfied, as was James J, that that equivalent conduct would have given rise to offences under s 176A, s 178BA and s 178BB of the Crimes Act 1900 (NSW).
78 In relation to these provisions respectively, we consider that the statement of conduct demonstrates that Mr Dutton acted with such intentions as would provide the relevant intentions required by each of these provisions. We should add that, in relation to s 176A, we equally are satisfied that Mr Dutton’s equivalent conduct would constitute a use of “ ‘dishonest means’ to prejudice the rights or interests” of the various parties with whom his companies were dealing directly or indirectly: Macleod v The Queen (2003) 197 ALR 333; Spies v The Queen (2000) 201 CLR 603; The Queen v Kastratovic (1985) 42 SASR 59 at 62-63; Welham v Director of Public Prosecutions [1961] AC 103 at 124. In the case of the banks with whom he was dealing directly his actions prejudiced their interests vis-à-vis the Reserve Bank of South Africa in that, by providing him with foreign currency in the circumstances, they put at potential risk their designations as authorised dealers: see the Indictment, count 1(h).
79 The conclusion at which we have arrived in relation to the New South Wales
Crimes Act makes it strictly unnecessary to consider whether the “equivalent conduct” would constitute offences under the Crimes Act 1914 (Cth). We will, though, in deference to the submissions made in relation to s 29B and s 29D give our own brief conclusions on all save one matter (which was not in any event the subject of substantial submissions).
80 The need for different treatment of the s 29B and s 29D offences is that the appellant has advanced a quite distinct ground of appeal relating to their availability in any event. That ground is that James J erred in implicitly accepting (but making no express findings) that the Reserve Bank of South Africa was “equivalent” to “a public authority under the Commonwealth”. For its part the second respondent has filed a notice of contention in which it says that James J’s decision should be affirmed on the additional grounds that, for the purposes of s 29B, the appellant imposed on “the Commonwealth” (being the equivalent of the Republic of South Africa); and for s 29D, the appellant defrauded “the Commonwealth” (again being the equivalent of the Republic of South Africa).
(2) “A public authority under the Commonwealth”/“the Commonwealth”
81 Section 3 of the Crimes Act 1914 contains the definition:
“public authority under the Commonwealth means any authority or body constituted by or under a law of the Commonwealth or of a Territory.”
82 Unlike the offences charged against Mr Dutton in South Africa, the Commonwealth offences relied upon for Australian purposes were in their nature offences against the Government (ie against the Commonwealth or a public authority under the Commonwealth). If the imposition (s 29B) or defrauding (s 29D) was practised upon a body other than the Commonwealth or a “Commonwealth authority” (to use a convenient abbreviation) this particular offence could not be made out.
83 The Republic of South Africa’s contention is that the Reserve Bank of South Africa is, for s 19(2)(c) purposes, to be treated as equivalent to a Commonwealth authority (though not necessarily the Reserve Bank of Australia). Alternatively, it contends that the imposition was on the Republic of South Africa, hence for s 19(2)(c) purposes, on the Commonwealth. This alternative was not dealt with by James J and unsurprisingly so given the delphic manner in which it was put to his Honour in the Republic’s filed submissions.
84 Considering first the position of the Reserve Bank of South Africa, the evidence is sparse indeed. Mr de Villiers’ supporting affidavit deposes that:
“The Reserve Bank is a legal person which was originally established by section 9 of the Currency and Banking Act, 1920 (Act 31 of 1920), previously governed by the South African Reserve Bank Act, 1944 (Act 29 of 1944) and since August 1989 governed by the South African Reserve Bank Act (Act 90 of 1989). Pursuant to a delegation by the Minister of Finance the Reserve Bank is responsible for the day to day management of the exchange control regulations. The South African Exchange Control Regulations, Orders and Rules provide amongst other that control over South Africa’s foreign currency holdings, accruals and spending thereof is vested in the Treasury. The regulations define the Treasury as the Minister of Finance.” Emphasis added.
85 None of the legislation referred to has, as we understand it, been put in evidence. Nor has the nature of the delegation been explained. The words highlighted and their differing significations (if any) have likewise not been explained.
86 Mr Charles von Staden, the deputy general manager in the Exchange Control Department of the Reserve Bank of South Africa gave the following evidence in cross-examination concerning the Bank:
“Q … First of all is the Reserve Bank independent from the government?
A. Yes your Worship, the South African Reserve Bank is a company instituted in terms of an act of parliament but the shares of the South African Reserve Bank is quoted on the Johannesburg Stock Exchange. The government however in terms of the South African Reserve Bank Act appoints the governor as well as the deputy governors, and of the fourteen directors on the board of the South African Reserve Bank seven is appointed by government. I am as an official not an employee of the government your Worship.” Emphasis added.
87 We are not satisfied on this material – and no additional material can be placed before the Court: s 21(6)(d) of the Act – that the Reserve Bank of South Africa can be said to be equivalent to a Commonwealth authority. Whatever may have been the case when it was established in 1920, the evidence of Mr von Staden is capable of supporting the inference that it is now, at least, a privatised body (if not a privately incorporated body) that is subject to some level of public regulation under the South African Reserve Bank Act because, by delegation, it discharges public functions. We are not prepared to infer on the evidence that the Bank was, at the relevant times, constituted by that Act.
88 It does appear that the Bank conducts its activities with a view to profit for the benefit of its shareholders. The Bank may well now be no more than a commercial enterprise conducting an important public function for which it has been given special powers for the purpose. There is no particular novelty in a private sector bank having such a role, as witness the functions performed in colonial Queensland by the Queensland National Bank for the Queensland Government: see G Blainey, Gold and Paper: A History of the National Bank of Australasia Ltd. We are not satisfied that the Bank can properly be designated as an “authority”: cf Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 at 566-567; Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 at 580; and see generally Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 at 428ff; let alone one constituted in the relevant sense: cf Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10 at 19; by a South African Act. There are simply too many uncertainties to make the inference the Republic propounds the most probable deduction that may reasonably be drawn from the known facts: Holloway v McFeeters (1956) 94 CLR 470 at 477.
89 We are in consequence not satisfied that the Bank could be regarded as equivalent to a Commonwealth authority for the purposes of s 29B and s 29D of the Crimes Act 1914.
90 The alternate submission now made by the Republic of South Africa is that the relevant imposition or defrauding for s 19(2)(c) purposes should be taken to be an imposition on, or defrauding of, the Commonwealth.
91 For the purposes of s 29B the statement of conduct alleges prejudice to the Republic of South Africa. But we are not satisfied that it provides evidence that the Republic itself (as distinct from a bank or the Reserve Bank) was imposed upon by an untrue representation. We would merely note that it is well accepted that (i) the s 29B offence does not require proof that the Commonwealth or a Commonwealth authority suffered any detriment: Guillot v Hender (1999) 86 FCR 294; (ii) it must be shown that the Commonwealth or a Commonwealth authority was actually deceived by what was said or done by the alleged offender: Joyce v Grimshaw (2000) 105 FCR 232; but (iii) the fact that a burden or disadvantage may have been placed upon the Commonwealth or a Commonwealth authority as a result of a third party alone being misled or deceived by the alleged offender does not mean that the offence under s 29B has been made out: Joyce v Grimshaw at 246.
92 In the present matter it was neither alleged nor shown that the Republic of South Africa was actually misled or deceived by Mr Dutton’s representations. At best it is shown that it may have been burdened or disadvantaged by authorised banks and the Reserve Bank being deceived or misled. Accordingly we reject the submission that the equivalent conduct would have constituted offences under s 29B of the Crimes Act 1914.
93 The s 29D defrauding offence is more problematic and it is the matter on which we reserve our judgment. The indictment and Mr de Villiers’ affidavit together do allege prejudice (actual or potential) to the South African State which, for some of the counts, Mr de Villiers describes as depletion of “foreign reserves … by the foreign currency amount remitted abroad”: eg Count 1. What the statement of conduct does not on its face seek to establish is that what Mr Dutton intended to do and did was defraud the Republic of South Africa. It merely addresses his intentions and their consequences vis-à-vis the authorised banks and the Reserve Bank. He had no dealings with the Republic as such.
94 In Welham v Director of Public Prosecutions [1961] AC 103, Lord Radcliffe commented of the word “defraud” (at 123):
“It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person.”
95 The short question raised is whether the Republic of South Africa was, nonetheless, the object of Mr Dutton’s fraud with the authorised banks and the Reserve Bank providing the vehicles for accomplishing that defrauding: cf Spies v The Queen (above) at 635. The submissions to this Court have not addressed this matter. As it would serve no useful purpose to receive such submissions in the circumstances, we do not intend further to consider the matter.
(3) Counts 1 to 12: the additional “equivalent offences”
96 Here we merely note that in relation to all, save Count 11, the second respondent has contended that if the equivalent conduct had taken place in New South Wales, it would also have constituted offences under both s 1307 of the Corporations Law (as it then was) and clause 42 of the Banking (Foreign Exchange) Regulations. On the review James J found such to have been the case in relation to cl 42 and that the conduct relative to counts 1, 2, 3, 8, 9 and 10 would have given rise to offences under s 1307.
97 Given the conclusions we have arrived at in relation to the New South Wales Crimes Act provisions, it is unnecessary for s 19(2)(c) purposes that we go on to consider the above “equivalent offences”.
(3) Counts 13 and 14
98 These again are both fraud counts, although count 13 does not depend on South Africa’s foreign exchange laws or its dual exchange rates. Each is described briefly earlier in these reasons. The common ground of appeal against both counts is that, with the equivalent conduct being relied upon to constitute offences under s 176A, s 178BA and s 178BB of the Crimes Act 1900 (NSW), the statement of conduct failed to allege that Mr Dutton had a fraudulent state of mind.
99 James J rejected this ground on the basis that the indictment formed part of the “statement of conduct” and it expressly alleged in both counts that Mr Dutton made the respective representations in each count “with intent to defraud”. For the reasons given in the next part of these reasons, we consider that his Honour was correct in using the indictment as he did. We agree that this common ground of appeal should be dismissed.
100 A separate ground of appeal, directed at count 14 alone, was founded on the lack of comparable exchange control regulation and dual exchange rates in Australia. This ground must fail for the same reasons that it failed in relation to counts 1 to 12.
Conclusion
101 The appeals must be dismissed against the findings of James J that, if the conduct constituting the offences charged in the fourteen counts of the indictment had taken place in New South Wales at the time the extradition request was received, the conduct would have constituted offences in that State under s 176A, s 178BA and s 178BB of the Crimes Act 1900 (NSW).
102 Those findings were sufficient to satisfy the double criminality requirement of s 19(2)(c) of the Act.
THE SUPPORTING DOCUMENTS
103 One of the necessary preconditions to a determination that a person is eligible for surrender in relation to an extradition offence for which surrender has been sought is the production to the s 19 magistrate of “the supporting documents in relation to the offence”: s 19(2)(a). “Supporting documents” are defined in s 19(3) to include:
“(a) if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant.
…
(c) in any case:
…
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.”
104 We have already foreshadowed that there is an issue in this appeal relating to the “statement of conduct”. There are, as well, three discrete challenges made to the warrant that was produced.
The Statement of Conduct
105 Both the magistrate and James J regarded the statement of conduct as being composed by the Indictment (which additionally contained a “Summary of Substantial Facts”) and Mr de Villiers’ supporting affidavit. The appellant accepts – as he was bound to given the authorities – that a statement may consist of a number of documents: McDade v United Kingdom (above). His contention, though, is that in this matter the statement could only be found in Mr de Villiers’ affidavit and that affidavit contained no statement of conduct capable of establishing that he had the necessary state of mind to constitute offences under s 176A, s 178BA and s 178BB of the Crimes Act 1900 (NSW).
106 The basis for this contention is said to inhere in the nature of the affidavit itself. Mr de Villiers was a Deputy Attorney-General employed by the Department of Justice in its Office for Serious Economic Offences. His affidavit was headed: “Supporting Affidavit: Statement of Facts”. Part 3 of it was headed: “Statement of Acts and Omissions”. At para 1.6 of the affidavit Mr de Villiers deposed that:
“Having prepared the Indictment from the available evidence, and having led the prosecution team I am familiar with the evidential material available against Dutton.”
107 From the above the appellant submits that it is “tolerably clear” that the affidavit was a self-contained document produced by the second respondent for the purpose of setting out the “conduct constituting the offence” for s 19(3)(c) purposes. In consequence James J erred in going outside it to make up for its shortcomings in establishing the conduct constituting the offences.
108 It should be noted that the documents tendered in support of the request for Mr Dutton’s extradition contained two supporting affidavits, one by Mr de Vries who was the Attorney-General of the Witwatersrand Local Division of the High Court of South Africa, the other by Mr de Villiers. The indictment was annexed to Mr de Vries’ affidavit.
109 A like submission was put to James J as was made in this Court. It was rejected and we are content to adopt his Honour’s reasons for so doing:
“In my opinion, the Republic of South Africa is entitled to rely on the counts in the indictment, as well as Mr de Villiers’ affidavit, as constituting a statement in writing setting out the conduct constituting the offences, as required by s 19(3)(c)(ii). It was clearly held in McDade, De Bruyn and Cabal, that the statement required by s 19(3)(c)(ii) may be constituted by a number of documents. In McDade Kenny J, with the concurrence of the other members of the Court, said at par 30:-
Section 19(3)(c)(ii) requires a ‘statement in writing’ of relevant matters. Nothing in the Act expressly requires the statement to be contained in only one document. There is, it seems to me, no justification in principle or in practice for any such requirement. Indeed, the court has accepted that a statement for s 19(3)(c)(ii) purposes may be constituted by a number of documents: see Wiest, (Wiest v Director of Public Prosecutions (1988) 23 FCR 472) especially at 519-520 per Gummow J and De Bruyn. The critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts and omissions, being acts and omissions which are readily and clearly identifiable by reference to those documents.
In the present case, both in the proceedings before the first defendant and in the review proceedings before me, the Republic of South Africa identified both the indictment and Mr de Villiers’ affidavit as being documents it relied on to establish compliance with s 19(3)(c)(ii). The fact that the Republic of South Africa proffered the indictment as being one of the documents on which it relied is relevant to the issue of which document or documents in the supporting documents should be regarded as constituting the statement of conduct required by s 19(3)(c)(ii). See De Bruyn at par 18.
The offences which the Republic of South Africa alleges that Mr Dutton committed are described in the supporting documents as fourteen offences of “fraud”. An essential element of any offence of fraud is a fraudulent state of mind on the part of the offender. It would be extraordinary if the Republic of South Africa could not rely on a part of the supporting documents in which it is alleged that Mr Dutton had a fraudulent state of mind.
Part 3 of Mr de Villiers’ affidavit is headed “Statement of Acts and Omissions” and the individual statements in Part 3 are in accordance with the heading: that is they are limited to assertions of acts and omissions and do not include assertions about states of mind.
In the course of oral argument counsel for Mr Dutton conceded that the Republic of South Africa could rely on the “summary of substantial facts” towards the end of the indictment as being part of the statement under s 19(3)(c)(ii). If this is so, it is difficult to see why the Republic of South Africa should not be permitted to rely on the counts in the earlier part of the indictment.” Emphasis added.
110 It should be added that in supplementary submissions the appellant sought to attack James J’s use of the indictment by separating the indictment into its three component parts (preamble, statement of charges and summary of substantial facts) seemingly for the purpose of asserting that the statement of the charges cannot be included in the statement of conduct.
111 The indictment, in our view, was and was clearly intended to be an entire document. We do not consider that it can properly be fragmented in the manner suggested. Rather, the statement of charges and summary of substantial facts inform each other. The document in its totality can properly be used as James J held it could be.
The Warrant Issues
112 Three discrete grounds of appeal have been raised against the sufficiency of the copy warrant produced by the Republic of South Africa in support of its extradition request. All are inconsequential. They invite a triumph of form over substance. They allege that the copy warrant did not conform with the requirements of s 19(3) in that –
(a) the warrant relied upon is only a bench warrant for breach of bail;
(b) the warrant is falsely described in the supporting documents; and
(c) the warrant insufficiently identifies the offences for which extradition is sought.
Like contentions were rejected by James J and the appeal is against that rejection.
113 Before dealing with the grounds it is necessary to set out the terms of the warrant and to refer to some background material.
“ IN THE SUPREME COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
To the Sheriff of the Province of the Transvaal or his lawful Deputy
THE STATE
V
EDWARD ISAAC DUTTON
(hereinafter called the ‘accused’)
Whereas
1. The accused had been charged with the crime of fraud (14 counts): (signature appears)
2. The accused had been released on bail;
3. The accused failed to remain in attendance at his trial; and
Whereas the court on 7 February 1994 issued a warrant for the arrest of the accused:
This is to command you to search for and apprehend the person of the accused wherever the accused may be found within the boundaries of the Republic of South Africa, and detain the accused in your custody in one of the State’s prisons in this Province, until the accused shall be brought to trial for the said crime, or be discharged from custody according to law.
FOR WHICH THIS SHALL BE YOUR WARRANT.
GIVEN UNDER MY HAND AT JOHANNESBURG THIS 7TH DAY OF FEBRUARY 1994.
(Signature appears) (Signature appears)
REGISTRAR PRESIDING JUDGE”
114 The “Presiding Judge” was Judge Streicher. As originally issued on 7 February 1994 the warrant did not contain the handwritten words figures and brackets “(14 counts)” after the word “fraud” in recital 1 or the signature (or rather initials) of Judge Streicher written above that matter. At a time which Mr de Villiers could not precisely recall when he was giving evidence but which must have been on or about 7 September 1995, Judge Streicher, at Mr de Villiers’ request which was made for the purposes of the first extradition request, amended the original warrant by adding the words, figures, brackets and initialling noted above.
115 The copy of the warrant exhibited before James J bore copies of two separate seals of the Registrar of the Supreme Court of South Africa, with the dates 7 February 1994 and 7 September 1995. It also bore an original seal of the Registrar of the High Court of South Africa with the date 29 December 1997, which was just before the second extradition request.
116 It will be recalled that at the time he absconded to Australia Mr Dutton was on bail after having earlier being arrested pursuant to a warrant and that his trial already had been in progress for about two years.
117 It is not in issue that the warrant was issued under s 67 of the Criminal Procedure Act 51 of 1997 (S Af) (a provision dealing with the failure of an accused on bail to appear) and not under s 43 of that Act (which gave a general power, subject to conditions, to issue a warrant for the arrest of a person for an alleged offence).
(a) The Bench Warrant ground
118 The appellant’s contention is founded on the s 19(3)(a) requirement that the duly authenticated warrant or copy be issued by the extradition country “for the arrest of the person for the offence” (emphasis added). A s 67 warrant, it is said, cannot be characterised as such a warrant. It is a bench warrant issued upon the appellant’s failure to appear on bail. It did not issue for the arrest of the appellant for the alleged offences of fraud. The proper course for the South African authorities to have taken for the purposes of extradition would have been to produce the original s 43 warrant under which he was originally arrested, or else to have sought the issue of a new s 43 warrant. The requirement was one with which strict compliance should be required: cf Hellenic Republic v Tzatzimakis [2003] FCAFC 4 on s 10(1) of the Act.
119 We do not consider that the reason which gave rise to the issue of the warrant has any real bearing on how this warrant should be characterised for s 19(3)(a) purposes. Its command is clear and unqualified. It is to apprehend and detain Mr Dutton in custody “until the accused shall be brought to trial for the said crime [of fraud], or be discharged from custody according to law”. That, in our opinion as it was in James J’s, is a warrant within the terms of s 19(3)(a), the more so as it clearly satisfies the apparent purpose informing the warrant requirement itself, ie that a person should not be extradited who would not be liable to arrest in the extradition country itself: Ujiie v Republic of Singapore [1995] FCA 855; Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at [192]. Against the background of the known and undisputed facts as to the circumstances in which, and the time at which, Mr Dutton failed to appear, to require the Republic of South Africa to produce the original and spent s 43 warrant or to procure the issue of a fresh s 43 warrant would be to endorse an exercise in futility. There was and is a live warrant extant for his arrest in South Africa to have Mr Dutton brought to trial for the offences.
(b) The Warrant is falsely described
120 By way of background reference should be made to s 19(7) of the Act. It provides, in part, that:
“(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; 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:
(i) in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country.”
Where, as in the present mater, a copy of a warrant is relied upon for subs 19(3) purposes, that subsection requires the copy to be duly authenticated.
121 The appellant’s contention is that the second respondent failed to produce a duly authenticated copy of the original warrant issued on 7 February 1994, as required by s 19(3)(a) of the Act. Instead, the “supporting documents” produced by the second respondent consisted of a certified copy of the bench warrant issued on 7 February 1994, but amended 22 months later by Judge Streicher at the request of Mr de Villiers by adding “(14 counts)” after the word “fraud” in the first recital. Hence, the warrant is falsely described in the affidavits of the second respondent’s witnesses Mr de Vries (as “the 7 February 1994 warrant”) and Mr de Villiers (as “the original warrant”). The copy the Republic of South Africa tendered had not been duly authenticated. There was no external mark or stamp or signature which had duly authenticated the copy. It was not capable of authenticating itself; the second respondent needed, and omitted, to rely on officials to authenticate it.
122 These challenges are without merit. There is no doubting what was the actual warrant being described by both Mr de Vries and Mr de Villiers in their affidavits: it was attachment “C” to Mr de Vries affidavit. That attachment contained Judge Streicher’s written annotation and also the three separate seals of 7 February 1994, 7 September 1995 and 29 December 1997. The misdescription was a patent one. It was the attachment C warrant that was being tendered in support of the extradition request and it was that copy that the Registrar of the High Court (Mr Scholtz) certified on 29 December 1997, the certification extending to Judge Streicher’s signatures on that document.
123 Attachment C was a copy document signed by a judge, so satisfying s 19(7)(a) of the Act. That copy was sealed by Mr Scholtz, again satisfying s 19(7)(b). We need not deal with the efficacy of the other seals although we agree with James J that the entire integrated bundle of documents was authenticated for s 19(7)(b) purposes by the seal of the Department of Justice on the cover sheet of the bundle.
124 There is nothing in s 19(3) which requires that the original, unamended, warrant of 7 February 1994 be produced. All that is required is the production of a duly authenticated copy warrant for the arrest of Mr Dutton. Such was produced.
(c) The Warrant insufficiently describes the offences
125 This challenge to the sufficiency of the warrant is again based on the requirement of s 19(3)(a) that the warrant be for the arrest of the person for the extradition offence(s). The warrant in the present case simply said that “[t]he accused has been charged with the crime of fraud (14 counts)” without specification of the fourteen counts charged. It is not permissible, it is said, to go beyond the warrant to identify the offences. And even if it were permissible to go to Mr de Vries’ affidavit where he purports to identify the extradition offences by reference to the indictment (annexure “B” to his affidavit), it is said, quite astonishingly, that that would be unavailing as it is impermissible to look beyond the first and unilluminating page of the fifty-six page document to which Mr de Vries was undoubtedly referring because only that page has the letter “B” on it.
126 We will not address the alternate submission concerning the affidavit. It was rightly rejected by James J. Our only surprise is that the appellant has persisted in it.
127 The primary submission is by no means self-evident. We do not see why it should not be open to the second respondent to prove the linkage between the warrant and the extradition offences by the provision of evidence to that effect. Section 19(3)(a) does not require on its face that the warrant specify the offences. To impose such a requirement could well render nugatory for extradition purposes, warrants which are quite unexceptionable in the extradition country and which reflect normal practice in that country: see eg Ujiie v Republic of Singapore (above) at 25. It would represent an unwarranted imposition of form where, as here, the substance is plainly compliant with the burden of s 19(3)(a).
128 We equally agree with the view of James J that the warrant was tendered in support of the request as part of a physically integrated bundle of documents. It is permissible to refer to other parts of the bundle to ascertain the offences for which the warrant was issued.
Conclusion
129 The appellant has failed to make out any of its grounds of appeal challenging his Honour’s findings in relation to the sufficiency of the supporting documents for the purposes of s 19(3) of the Act.
THE EXTRADITION OBJECTIONS
130 Though this part of the appeal relates to James J’s findings in relation to three “extradition objections” raised by Mr Dutton for the purposes of the s 19 determination, the appeal focuses primarily upon the nature of the s 21 review process and on the manner in which it was put into effect by James J. As a matter of convenience, it is appropriate to refer first to the statutory setting and to Mr Dutton’s extradition objections.
The Objections
(a) The statutory setting
131 Under s 19(2) a person is only eligible for surrender in relation to an extradition offence if (sub-para (d)):
“the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.”
132 Insofar as presently relevant, s 7 of the Act defines “extradition objection” as follows:
“For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
(a) the extradition offence is a political offence in relation to the extradition country;
(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country;
(c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions.”
133 The only additional comment that needs be made at this point relates to the requirements of s 19(2)(d). The onus of proof on an applicant in proving the extradition objections is “significantly” less than the civil standard of the balance of probabilities: Cabal v United Mexican States (2001) 108 FCR 311 at [135]. The phrase “substantial grounds for believing” is captured by expressions such as “a reasonable chance”, “substantial grounds for thinking”, “a serious possibility”, and “non-trivial”: ibid, citing Fernandez v Government of Singapore [1971] 1 WLR 987.
(b) Mr Dutton’s three objections
134 We will deal with these in the order in which they were dealt with by James J.
(i) Prosecuting for political opinions
135 This objection (founded on s 7(b) of the Act) is that Mr Dutton’s surrender is being sought for the purpose of prosecuting or punishing him on account of his political opinions.
136 The evidentiary basis advanced in support of the objection is that he opposed the system of apartheid in South Africa. He acted on his political opinions in the following ways.
(i) He had stood for election, and was elected to the Linbro Park Ratepayers’ Association, a local government organisation as head of a team of independent candidates who opposed the candidates of the National Party.
(ii) Following his election, he had implemented practices in the area which were non-discriminatory.
(iii) He had instituted non-discriminatory employment practices in his business enterprise.
(iv) The mission statements of his companies were based on non-discrimination and equal opportunity.
(v) He made speeches about non-discriminatory work practices in his businesses.
(vi) He supported non-racial schools and his children attended a non-racial school.
(vii) He supported and assisted non-racial governments in other countries in southern Africa neighbouring South Africa.
(viii) He assisted black persons during a campaign conducted by the Defence Minister known as “Total Onslaught”.
(ix) He held multiracial gatherings at times when such gatherings were restricted or prohibited.
137 Mr Dutton’s actions, it is said, had been of demonstrable concern to the South African Government and formed a credible basis for the Government’s desire to prosecute or punish him. This was evidenced in various ways.
(i) The Linbro Park Ratepayers’ Association to which he was elected chairman was the most superior municipal body in Linbro Park and was in the electorate of General Malan, the South African Defence Minister, who supported apartheid.
(ii) General Malan had, between 1987 and 1988, attempted to persuade him to support apartheid.
(iii) He had a high profile in South Africa, evidenced by the newspaper reports in 1990 and 1991 about his arrest/proceedings against him.
(iv) Despite substantial change in the political situation in South Africa by the time of the second extradition request, there was still a transition arrangement whereby the National Party ruled jointly with the African National Congress. Also, while there was a change in government at the highest level, there had been little change in the personnel “at the operational levels” of the South African Police, Reserve Bank, and Ministry of Justice.
(v) The same persons (all Afrikaners) who had been involved in the investigation, prosecution and trial in South Africa were involved in the extradition request and would resume their previous roles as prosecutor and judge if he was extradited.
138 Finally, there was material to support an inference that the decisions underlying the extradition request had been taken because of his political opinions. This, it is claimed, included the following:
(i) Only ten days elapsed between the election of members to the Ratepayers’ Association and the issuance to his companies of notices of attachment for suspected contraventions of exchange control regulations.
(ii) After being elected to the Ratepayers’ Association, influential National Party members including (indirectly) General Malan had told him that his safety was in jeopardy. Subsequently his home was broken into and shots were fired at it.
(iii) When he was arrested, he had to resign from the Ratepayers’ Association. Soon after, the National Party regained control of the Association.
(iv) His companies’ competitors (a cartel of companies with a close relationship to the National Party) again traded profitably within a year of the notices of attachment being issued to his companies.
(v) His brother recalled that media publicity at the time of his arrest had associated Mr Dutton with political activities in Linbro Park.
(vi) The Attorney-General for the area was an Afrikaner who was a member of the Broederband (a secret and powerful Afrikaner organisation) and had acted as defence counsel for General Malan in 1994. He requested Mr de Villiers to prosecute Mr Dutton’s matter.
(vii) No other officer in the Interboard group of companies was investigated or prosecuted.
(viii) He was held in inhumane and degrading conditions in police cells after his arrest, and not in remand.
(ix) A condition of his bail was that he not contact any person connected with Interboard, effectively denying him potential witnesses.
(x) He was charged with fraud and not with contravention of exchange control regulations, because such charges would seem less political.
(xi) There was the conduct of Judge Streicher, Mr de Villiers and Mr Kitching, including:
. Mr de Villiers asserting “docket privilege” (ie refusing to make available to the defence copies of statements by prosecution witnesses);
. Judge Streicher making a ruling that the prosecution was not obliged to provide such copies;
. Some people who had been nominated as witnesses had not been called, giving rise to the inference that they had been nominated as witnesses in order to prevent Mr Dutton from having access to them.
. Mr Kitching had fabricated documents.
It was contended that Mr van Staden, Mr de Villiers, Mr Venter and Mr Kitching all knew about Mr Dutton’s political opinions, through their links with the Broederbond and their experience as public servants under apartheid regime.
(ii) Prejudice on account of political opinions
139 This objection is founded on s 7(c) of the Act. It draws on the material advanced for the s 7(b) objection. Mr Dutton contends that he had already suffered prejudice in the part of the trial which had taken place in South Africa and it could be inferred that he would or might be prejudiced at the resumed trial. He referred to the conduct of Judge Streicher, Mr de Villiers and Mr Kitching to which reference was made in the s 7(b) objection (above). He further indicates that the resumed trial would continue to be conducted in accordance with the practices and procedures which were in force at the time of the part-heard hearing. He would in consequence be denied the benefit of the new South African constitution which contains protection provisions for criminal accused.
(iii) Political offences
140 This objection is based on s 7(a) of the Act. The term “political offence” is defined in s 5 (subject to not presently relevant exception) as follows:
“’Political offence’ in relation to a country means an offence against the laws of the country that is of a political character (whether because of the circumstances in which it is committed …).”
Mr Dutton’s contention is that the offences allegedly committed by him were to be properly characterised as contraventions of the South African Foreign Exchange laws. The South African foreign exchange laws were laws designed to protect the political institutions of the apartheid state of South Africa. The foreign exchange laws had been introduced in 1961 to prevent or limit the impact on South Africa of international sanctions imposed on South Africa, because of the international community’s feelings of revulsion for the incident known as the Sharpeville massacre. Consequently, the offences allegedly committed by Mr Dutton were pure political offences. Because they were pure political offences, it was not relevant to inquire into Mr Dutton’s purpose or motive in committing the offences.
141 James J gave quite detailed reasons (particularly in relation to the s 7(b) objection) rejecting all three extradition objections raised.
142 The present appeal challenges his Honour’s findings (i) in relation to the s 7(b) and s 7(c) objections, for reasons relating to the manner in which James J dealt with the evidence before the s 19 magistrate and with the magistrate’s findings and rulings on evidence; and (ii) in relation to the s 7(a) objection, on the ground that James J misconceived the nature and content of pure political offences. We will deal with these in turn.
The Conduct of the s 21 Review (the s 7(b) and s 7(c) Objections)
143 This appeal again illustrates the difficulties that the peculiar review process mandated by s 21 of the Act creates for a court when called upon to review a magistrate’s s 19 order. Those difficulties are compounded (i) by, as here, the apparently common practice of parties agreeing on procedures to be adopted on the review so submerging significant procedural controversies: eg Cabal v United Mexican States (2001) 108 FCR 311 at [151]-[153]; and (ii) by the lack of ultimately authoritative guidance on the nature and perhaps even the validity of the s 21 review: see eg Pasini v United Mexican States (2002) 209 CLR 246. We should add as to the second of these that it appeared at one stage in this appeal that a Chapter III constitutional question might arise in consequence of the limitation s 21(6) of the Act imposes on a court in conducting a review (see below). In the event no issue has been taken as to the validity of s 21.
144 Before indicating the difficulties the review process and existing authority presented to James J, the provisions of s 21 insofar as presently relevant should be noted.
“Review of magistrate’s order
(1) Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:
(a) in the case of an order under subsection 19(9) – the person; or
…
may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.
(2) The Court may, by order:
(a) confirm the order of the magistrate; or
(b) quash the order and direct a magistrate to:
(i) in the case of an order under subsection 19(9) – order the release of the person;
...
(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.
…
(6) Where the person or the extradition country:
(a) applies under subsection (1) for a review of an order;
(b) appeals under subsection (3) against an order made on that review; or …
the following provisions have effect:
(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate.” Emphasis added.
145 We would note in passing that the limitation s 21(6)(d) imposes was a quite considered one, the Government of the day rejecting explicitly an Opposition amendment making the matter one in which the court would have a discretion: Parliamentary Debates, H of R 158, 3107ff (9 December 1987). The limitation, as will be seen, can place the review court and/or one or other of the parties in invidious positions.
146 For the purposes of this appeal there is a number of principles concerning the nature of a s 21 review which are either settled, or from which it is inappropriate for reasons of comity that we depart. First, the magistrate’s s 19 determination is administrative, not judicial, in character: Director of Public Prosecutions of the Commonwealth v Kainhoffer at 538; Pasini v United Mexican States, above; that function being performed as a persona designata: see Cabal v United Mexican States (No 3) at [109] and the cases referred. The provisions of the Evidence Act 1995 (Cth) do not apply to the magistrate, though the Extradition Act 1988 (Cth) itself does in some respects make provision for the admissibility of evidence in proceedings before the magistrate: see ss 19(3), 19(5), 19(6), 19(7) and 19(8); Cabal v United Mexican States 108 FCR 311 at [139]ff.
147 Secondly, as was indicated in the joint judgment in the High Court in Pasini v United Mexican States at [16]-[17]:
“The function of the Federal Court under s 21 is to review an order made under sub-ss(9) or (10) of s 19 of the Act. It is not in issue that a decision of a magistrate under s 19 of the Act is an administrative decision. When a court is required to review an administrative decision, it is required, at the very least, to determine whether or not that decision is erroneous in some respect that renders the rights or liabilities of the person to whom it relates other than as set out in that decision. In so doing, the court declares and enforces the law and, thus, exercises judicial power.
In the case of review under s 21 of the Act, the Federal Court is required, if the magistrate’s decision was erroneous, to determine what order should have been made by the magistrate. So much follows from ss 21(2)(b) and 21(6) of the Act.”
In dealing with the material before the magistrate the review court is bound to apply the Evidence Act 1995 (Cth): Cabal v United Mexican States (2001) 108 FCR 311 at [189].
148 Thirdly, the s 21 review is not one of judicial review in the strict sense. It is by way of rehearing in which the court is authorised to reach its own conclusions on eligibility for surrender, albeit it is limited in so doing by having regard only to the material before the magistrate: Cabal v United Mexican States (2001) 108 FCR 311 at [100]; Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at [115].
149 In the present matter the parties have not sought to challenge the third of the above propositions. There are, however, two difficulties that emerge from it (quite apart from any constitutional doubts). The first relates to how one properly identifies what is the “material before the magistrate”. The second inheres in the concept of a rehearing and relates to the extent to which, if at all, the review court can take account of and give weight to findings by the magistrate where there are conflicts in, and disputes concerning, the evidence. Both of these difficulties arise in this matter, the first being raised by the Court; the second, by the appellant.
150 In his reasons for judgment James J tabulated much of the material that unarguably was before the magistrate. Towards the end of that account his Honour noted:
“In the proceedings before the first defendant counsel for Mr Dutton sought to rely on a number of further affidavits by Mr Dutton sworn on 18 September 2000, 22 September 2000, 23 October 2000 and 30 October 2000. One feature of these affidavits was that a number of affidavits by persons other than Mr Dutton were annexed to an affidavit by Mr Dutton.
Counsel for the Republic of South Africa made a number of objections to these affidavits, on grounds including that they were not properly affidavits in reply and had not been filed within the time allowed in directions given by the first defendant and their admission would cause serious prejudice to the Republic of South Africa. Many parts of these affidavits by Mr Dutton, including annexed affidavits by persons other than Mr Dutton, were rejected by the first defendant.
A large number of documents tendered by one or other of the parties were admitted into evidence by the first defendant. However, a considerable number of documents tendered on behalf of Mr Dutton were not admitted by the first defendant.” Emphasis added.
These rulings raised the question whether the material that was rejected or not admitted was, nonetheless, “material before the magistrate” for s 21(6)(d) purposes.
151 Distinctly, as James J later noted, there were conflicts in, and disputes about, the evidence and the magistrate made findings on these. As his Honour said:
“In my opinion, it is clearly implicit in the first defendant’s judgment that she accepted the evidence of witnesses such as Mr de Villiers and Mr Kitching refuting the allegations made by Mr Dutton which she recorded in her judgment.
In my opinion, it also clearly implicit in the first defendant’s judgment that she accepted evidence by each of Mr de Villiers and Mr Kitching that Mr Dutton was not known to the witness before the investigation in South Africa into the alleged offences commenced.”
The issue for James J in this was whether, if at all, he should have regard to any such findings, the magistrate having had the advantage that James J was precluded from having of seeing the witnesses being subjected to lengthy cross-examination. His conclusion was that:
“I consider that insofar as I attempt to resolve conflicts in the evidence or otherwise attempt to determine what disputed evidence I should accept, I should give weight to these findings by the first defendant.”
The appellant contends that the course taken was impermissible.
(a) The material before the magistrate
152 At the review hearing both parties took the position that the evidence which had been tendered or proffered to the magistrate but which had not been received into evidence by her was, nonetheless, “material before the magistrate”. His Honour also adopted that position. In so doing James J adopted what now appears to be an emerging practice in s 21 proceedings: see eg Cabal v United Mexican States (2001) 108 FCR 311 at [73], [151]-[153].
153 James J acknowledged that he was bound to apply the provisions of the Evidence Act 1995 (Cth). He went on to note that such of the “excluded” material as Mr Dutton really wished to rely on was referred to in counsel for Mr Dutton’s written submissions and then commented:
“Rather than assay the arid and formidable task of attempting to decide, as to each piece of evidence sought to be relied on, whether it should be admitted according to the provisions of the Evidence Act, including s 135 … I have decided that I should take into account all of the material sought to be relied on in counsel for Mr Dutton’s written submissions, giving it such weight as I consider it deserves.”
154 Illustrative of the approach so taken is the following passage in James J’s consideration of the s 7(b) objection. It demonstrates the difficulty in the approach taken and is one of the bases of the appellant’s objection to his Honour’s reasons:
“It is submitted by counsel for the Republic of South Africa that almost all of the evidence on which Mr Dutton relied consisted of assertions by Mr Dutton himself which were uncorroborated or of “general country evidence”. The first part of this submission has less force, if the affidavits by other persons which are annexed to affidavits by Mr Dutton but which were rejected by the first defendant are taken into account. As stated earlier in this judgment, I have decided that I should take all of these affidavits into account. Nevertheless, this part of counsel for the Republic of South Africa’s submission continues to have some force. Much of the evidence sought to be relied on by Mr Dutton does indeed consist of assertions made by Mr Dutton himself which lack corroboration. The weight of the evidence of the other persons whose affidavits were annexed to affidavits by Mr Dutton is reduced because the Republic of South Africa never had any opportunity to cross-examine these persons.” Emphasis added.
155 As we have already indicated the course taken by James J in considering the material rejected by the s 19 magistrate was a course advocated by the parties. Such has occurred in other s 21 cases at first instance without demur from the bench: see eg Republic of South Africa v Dutton (1997) 77 FCR 128 at 132. In Cabal v United Mexican States (No 2) (2000) 172 ALR 743 at 749 French J legitimated the practice in the construction he placed on s 21(6)(d):
“Upon review by this court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. For the court may take a different view of the relevance or weight to be accorded to such evidence or of the criteria of fairness which govern its reception.”
This view was not contested on appeal to the Full Court in Cabal v United Mexican States (2001) 108 FCR 311. Nonetheless the Court did make the following observations about it.
156 Referring to the proposition that the material before the magistrate included material rejected by the magistrate and thus not taken into account, the Court said (at [73]):
“At least the latter of these propositions is not self-evident, if only because it would permit the judge conducting the review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross-examination on that evidence to take place or further evidence to be considered.”
157 Later in its reasons the Court returned to this theme (at [152]-[153]):
“As noted earlier it was not suggested before us that the approach taken to this issue by French J in his preliminary ruling was incorrect. However, as discussed that approach may give rise to difficulty. If a Court were to conclude, on review, that evidence proffered, but rejected, in support of an extradition objection, ought to have been received, the requesting State may find itself in an impossible situation. The evidence in support of the extradition object ion would then be received with no possibility of its being rebutted by any evidence being led in reply because such evidence would not, in any relevant sense, have been “before the magistrate”.
The difficulty which this might create for a requesting State may, in the end, be insurmountable, having regard to the language of s 21(6)(d) of the Act. It is obviously unfair that a person who has erroneously been prevented by a magistrate from tendering evidence in support of an extradition objection should be denied redress on review by this Court, or by the Supreme Court if that be the Court on review. At the same time it is also unfair that should such redress be granted, the requesting State is denied the opportunity to answer that material. In our view this matter should receive urgent attention.”
That attention has not been forthcoming.
158 As we have already indicated, the s 19 magistrate’s determination is administrative, not judicial, in character. The Act prescribes for some purposes (i) the material that must be (s 19(2)(3)), or that cannot be (s 19(5)), put before the magistrate; and (ii) the form or manner (s 19(8)) in which particular material is to be put to the magistrate (s 19(6)(7)). But it does not purport to prescribe the practices, processes and procedures that the magistrate is to employ in conducting the review including, importantly, regulating the reception and use of material that a party seeks to have put “into evidence”.
159 It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on “the admissibility of evidence”, on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative.
160 The superimposition of the s 21 review on this administrative proceeding and review is not without its curiosities. Because of the limitations placed on the review court in relation both to the evidence to which it can have regard (s 21(6)(d)) and to the orders it can make (s 21(2)), it may well be the case that there are some miscarriages and errors in the s 19 review which are only capable of correction (if at all) by such avenues for judicial review of administrative action and/or declaratory relief as may be available in the circumstances: cf Director of Public Prosecutions (Cth) v Kainhoffer at 541-542; but see also Judiciary Act 1903 (Cth), s 39B(1A)(c); Sankey v Whitlam (1978) 142 CLR 1; and see by way of analogy in relation to committal proceedings, Aronson and Dyer, Judicial Review of Administrative Action, 648-69 (2nd ed, 2000); while others can be corrected in the s 21 review: Pasini v United Mexican States (2002) 209 CLR 246 at [16]-[18]. It is unnecessary for present purposes to consider the extent to which the s 21 review can be used merely for the purposes of engaging in judicial review as such: cf Knauder v Moore, above, at [54]ff.
161 The question for present purposes is (a) whether the magistrate’s rulings both on the admissibility of evidence and on cross-examination were reviewable only (if at all) in judicial review or declaratory proceedings; or (b) whether the consequences of those rulings were able to be overcome in the s 21 review.
162 Dealing first with the magistrate’s ruling on documentary evidence that Mr Dutton sought to have received, we consider the answer to be clear enough. The general issue with which the magistrate was concerned for present purpose was whether she was satisfied that there were substantial grounds for believing that there was an extradition objection in relation to the offences. As we understand it in light of the second respondent’s additional submissions, the magistrate’s rulings (which cover about seventy pages of transcript) were made in light of her consideration of the contents of the documents themselves and of the character of the material in question (ie “relevance”, “unqualified opinion”, “unfairly prejudicial”, etc). Though finding the “excluded” material not to have utility in the resolution of the question before her, the magistrate nonetheless engaged in “an active intellectual process” in relation to that material: cf Tickner v Chapman (1995) 57 FCR 451 at 462; Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277ff; in and for the purposes of the s 19 determination. In light of her rulings, the magistrate may not have regarded the material as “admissible evidence” on the issue she had to determine. However, those rulings did not rob that material of the character of “material that was before the magistrate” for s 21(6)(d) purposes. They merely made it material that was disregarded.
163 In relation to the cross-examination that was foreclosed, a quite different situation obtains. For present purposes, we would preface what we have to say with the following exchange between James J and Mr Dutton’s counsel during the review hearing:
“HIS HONOUR: I think you put a submission to me that if I adopted what the High Court might perhaps have said or if I adopted what is perhaps a possible interpretation of what the High Court said, the nature of the hearing I am conducting is a limited review and I could take into account the refusal of cross-examination or the refusal of the tender of the document as an error on the part of the magistrate, such that I would then have to decide the case myself because I cannot send it back to her.
GAME: Yes.
HIS HONOUR: But in deciding the case for myself, I could not speculate about what evidence the witness might have given if cross-examination had been permitted.
GAME: That’s correct …”: Emphasis added.
164 We do not understand the appellant to resile from what was said above. Rather, the curtailment of cross-examination was only relied upon for the purpose of emphasising the resultant unfairness in the s 21 review given the manner in which James J there dealt with the material (documentary and by way of foreclosed cross-examination) rejected by the magistrate. Importantly as we understand it, no challenge was sought to be made to the validity of the magistrate’s determination on the ground that, in consequence of the curtailment of the cross-examination in the circumstances, the appellant was denied procedural fairness.
165 We would then, conclude that the “material before the magistrate” to which regard was to be had for the purposes of the s 21 review (a) included the documentary material rejected by the magistrate; but (b) did not include “speculation” about what the evidence of witnesses might have been if cross-examination had not been curtailed.
(b) Use of the rejected material and of credibility findings
166 There are two discrete challenges made to the manner in which James J dealt with material before him on the review. The first is that his Honour erred in the approach he took to the material rejected by the magistrate in that he unfairly discounted it. The second is that his Honour should have disregarded entirely the credibility findings of the magistrate in relation to conflicting or disputed evidence rather than giving weight to those findings. Each of these matters can be dealt with shortly.
167 First, the rejected material. As we noted by way of illustration earlier, James J indicated that, in taking account of documentary material rejected by the magistrate, he would reduce the weight of that evidence because the Republic of South Africa did not have any opportunity to cross-examine on that material.
168 The appellant’s submission is that it is not possible to tell what impact the rejected evidence might have had on the assessment of the balance of the evidence by the magistrate, nor what evidence might have emerged had full cross-examination been allowed.
169 Additionally, it is unfair to the appellant if the weight given to evidence sought to be led by him is reduced because of a lack of opportunity on the part of the second respondent to cross-examine the witness. The requesting State should take responsibility for its conduct of the s 19 hearing before the magistrate, including its wrongful objection to evidence. In Cabal v United Mexican States (2001) 108 FCR 311 the Full Court acknowledged at [153] that it was “obviously unfair that a person who has erroneously been prevented by a magistrate from tendering evidence in support of an extradition objection should be denied redress on review by this Court”. Such obvious unfairness is not resolved by discounting the evidence so admitted. In the present case, that unfairness was exacerbated by the denial of an opportunity to cross-examine the second respondent’s witnesses and to present documentary evidence in contradiction of the evidence of those witnesses. In addition to having his own evidence discounted, the appellant was denied the opportunity to answer the second respondent’s evidence, a matter which the Federal Court in Cabal said would be unfair if the requesting State were placed in that position.
170 The proper conduct of the s 19 hearing before the magistrate, it is said, is of considerably greater significance for the accused person than the requesting State. Subject to rights of review and appeal and the order of the Attorney-General pursuant to s 22 of the Act, where the accused person is found eligible for surrender by the magistrate, extradition and the loss of liberty follow. If, on the other hand, the requesting State fails in its application before the magistrate and before the review and appeal courts, it can bring a fresh application and thereby correct any deficiencies in the earlier hearing, including those arising by reason of its own endeavours. On the approach of James J, the requesting State would ultimately benefit from its wrongful objection to evidence and there would be no recourse available to an accused person on review.
171 We do not consider that these submissions can be sustained. They are premised upon the proposition that the rejected material was improperly rejected and that the curtailment of cross-examination was unfair in the circumstances. As to the first of these, his Honour did not make individual rulings under the Evidence Act 1995 (Cth) on each piece of the rejected material. Rather, and favourably to the appellant, James J decided that:
“I should take into account all of the material sought to be relied on in counsel for Mr Dutton’s written submissions, giving it such weight as I consider it deserves.”
As to the curtailed cross-examination, James J correctly considered in the circumstances that he ought not “speculate about what evidence the witnesses might have given if cross-examination had been permitted”. There being no claim advanced that this curtailment involved in some fashion a denial of procedural fairness, that cross-examination was curtailed was without practical consequence in the s 21 review. No further evidence could be adduced; it was inappropriate to speculate about what such foreclosed evidence might have been; and the matter could not be remitted to the magistrate (even assuming the unfairness of the curtailment is established).
172 The only substantial question is whether the primary judge erred in the manner in which he ascribed weight to the rejected material. Given the contrived state of affairs created by s 21(b)(d) of the Act, we do not consider that he did. To acknowledge that evidence favourable to one party has not been subjected to cross-examination by the other is to recognise that it is untested and, for that reason, that it should be treated with circumspection. We can see no miscarriage in the review by his Honour giving that material such weight as he considered it deserved.
173 We do not intend setting out James J’s lengthy and multifaceted reasons for holding that the s 7(b) and s 7(c) extradition objections had not been made out. His Honour’s treatment of the evidence (including the disputed and conflicting evidence to which we will refer below) was not unfair to Mr Dutton. Neither do we consider that it was unfairly advantageous to the second respondent. All that can be said is that, in the totality of the evidence, the rejected evidence was incapable of bearing the burden Mr Dutton wished of it.
174 The second criticism made of James J’s treatment of the material before him is that he should have, but did not, disregard the magistrate’s findings on conflicting or disputed evidence.
175 This is not the place to essay a general consideration of the nature of s 21 review (the more so because the applicant designedly has abjured raising any issue as to the constitutionality of s 21 on account of the limitations s 21(6)(d) places upon the review court); cf Nicholas v The Queen (1998) 193 CLR 173 at [23]ff. Suffice it to say for present purposes (and we will assume favourably to the appellant that it is the case), that even if the review judge was required to consider the matter afresh and to exercise his or her own discretion, it would still be open to the judge to have due regard to the magistrate’s decision though without being inhibited by it: cf C M Van Stellevoldt BV v E L Carriers Inc [1983] 1 WLR 207 at 208-209. As Lord Atkin said in Evans v Bartlam [1937] AC 473 at 478 of a judge’s review of decision delegated to a master:
“I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master’s discretion. His own discretion is intended by the rules to determine the parties’ rights: and he is entitled to exercise it as though the matter came before him for the first time. H will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it.”
176 The difficulties involved in a review of a matter the judge is required to consider afresh are well recognised particularly where the judge may be required to choose between conflicting evidence about, or to make findings on disputed evidence about, primary facts: see D’Antuonoi v Minister for Health (1997) 80 FCR 226 at 240; see also McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284. Such nonetheless are difficulties that a s 21 review judge cannot evade. Section 20(6)(d) has seen to that. The review is to be conducted on material that designedly omits influential data: cf Suvaal v Cessnock City Council [2003] HCA 41 at [73].
177 In the present matter James J clearly did not purport to surrender his own discretion to that of the magistrate in attempting to resolve conflicts in the evidence or in accepting disputed evidence. In a number of instances, as he said, he gave some weight to her views (see [330] and [353] of his Honour’s reasons which we need not set out here). In others, he made his own independent findings (see eg [364] and [376] of the reasons again not set out here). In our view, it is not open to suggest that his Honour did not maintain an independent and unfettered discretion in the matter even though he had due regard to the magistrate’s views.
178 This ground of challenge to James J’s conclusions on the s 7(b) and s 7(c) extradition objections must fail.
“Pure Political Offences” (the s 7(a) Objection)
179 It is appropriate to reiterate the definition of “political offence”. It is (insofar as presently relevant):
“political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country).”
180 The appellant’s submissions to James J were that the exchange control regulations were political laws designed to protect the political institutions of the apartheid state of South Africa. The offences with which he has been charged (save in relation to count 13) were properly to be characterised as contraventions of the exchange control regulations; they were as such “pure political offences”; and they did not lose that character because the actual crimes charged were frauds. Being pure political offences the offender’s motive or purpose was irrelevant.
181 After adverting to the distinction between “pure” and “relative” political offences (a matter considered below), James J rejected these submissions for the following reasons:
“I do not consider that the alleged offences charged in counts 1-12 of the indictment are properly to be characterised as simply being contraventions of South Africa’s foreign exchange laws. The alleged offences were offences of fraud involving many millions of South African rand. I accept Mr de Villiers’ evidence that, in his view, the offences were so serious that charges of breaches of the foreign exchange regulations were never seriously considered by him and I consider that his view of the seriousness of the offences and what would be the appropriate charges was well justified.
According to Mr van Staden’s evidence, which I accept, foreign exchange laws were not first introduced in South Africa in 1961. Mr van Staden gave evidence that comprehensive foreign exchange regulations were first introduced just after the outbreak of World War II in 1939. These regulations were amended on a number of occasions. While it is true that the Regulations were amended in 1961 after the Sharpeville massacre, the main amendments made in 1961 were confined to limiting the withdrawal from South Africa of the proceeds of South African assets which had been held by non-residents. Even at the time Mr van Staden was giving evidence before the first defendant there was still some foreign exchange controls in South Africa. Foreign exchange laws or regulations are not, of course, unique to South Africa. Many countries have or at some time or other had foreign exchange controls. Mr van Staden said that at the time of his giving evidence more than 150 member states of the United Nations had foreign exchange controls.
Even if the offences allegedly committed by Mr Dutton were properly to be characterised as contraventions of the South African foreign exchange laws, I do not accept that a contravention of the country’s foreign exchange laws is a political offence as being a pure political offence and hence as being a political offence regardless of the offender’s motive or purpose. If this were so, then if during the apartheid era a South African who supported apartheid committed a contravention of the foreign exchange laws for the purpose of gaining a financial advantage for himself, he would have been able successfully to resist being extradited from Australia on the ground that the offence for which his extradition was being sought was a pure political offence:” Emphasis added.
182 His Honour went on to note that no attempt was made to submit that the alleged offences were relative political offences. In indicating that any such submission was likely to have been unavailing, James J noted:
“the offences which Mr Dutton is alleged to have committed involved he himself having secretly circumvented the foreign exchange laws of South Africa at very considerable personal profit to himself, not that he merely encouraged the exploitation of circumventions of the foreign exchange laws by the foreign shareholders in his businesses.”
183 The appellant’s contentions on the appeal are that: (i) James J wrongly emphasised the label ascribed to Mr Dutton’s offences (ie fraud) by the requesting State rather than the content of the charges and their political nature; and (ii) that he misconceived the purpose of “pure political offences” which are designed to protect the political institutions of the State, it being the appellant’s case that the exchange control regulations were used to prop up the apartheid regime in the face of international economic sanctions.
184 It is, in our view, quite clear why the appellant sought to frame his extradition objection in a way that did not call his own purposes into question. As James J indicated, his actions brought “very considerable personal profit to himself”. The strategy was rightly rejected by James J.
185 The words “political offence” in the Act have been defined by reference to a formula (ie an offence “of a political character”) that itself has “so far defied precise definition”: R v Governor of Pentonville Prison, Ex parte Cheng [1973] AC 931 at 942. It is well accepted, though the terminology is not used in the Act itself, that there are two analytically distinct kinds of political offence, the one being “the pure political offence”, the other, “the relative political offence”: see Aughterson, at 90ff; Stanbrook and Stanbrook, at 69; 31A Am Jur 2d “Extradition” §44.
186 Illustrative of pure political offences are offences such as treason, espionage, sabotage, subversion and sedition. Such are offences “directed solely against the political order”: Shearer, Extradition in International Law, 151 (1971). Their purpose has been described, variously, as to protect the political institutions of the State: Aughterson, 91; the State itself; 34A Am Juris 2d §44; or the sovereign or public order: Bassiouni, International Extradition 512 (3rd ed). Relative political offences, in contrast, are common crimes which acquire their political character from the political purpose sought to be achieved by an offender in committing them: see Ex parte Cheng, at 945; Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 at [44]. For this reason it is conceivable that the commission of the common crime of fraud on the State could, because of the offender’s purpose, constitute a “political offence” for the purposes of the Act.
187 The offences with which Mr Dutton was charged were, of course, for fraud. It may well have been the case that he could have been charged with exchange control offences. But for the reasons accepted by James J as “well justified”, such a course was not taken by Mr de Villiers. The offences charged could not in consequence be characterised “simply as being contraventions of South Africa’s foreign exchange law”. They were ordinary fraud charges justifiably laid. If the s 7(a) extradition objection was to be made, it was to be made “in relation to” these offences: s 19(2)(d); and that is the course the appellant has designedly not taken. That, in our view, was the end of the matter.
188 His Honour did go on to consider the matter on the basis that the offences charged were properly to be characterised as exchange control offences. Having regard to Mr van Staden’s evidence which he accepted, he concluded as we understand his Honour’s reasons, that the offences were not pure political offences. Having regard to his paraphrase of Mr van Staden’s evidence, we infer that James J accepted both Mr van Staden’s denial that the 1961 exchange control amendments were made to protect the institutions of the State and his account of the history and purposes of the exchange control regime in South Africa. We are not satisfied that his Honour’s conclusion was erroneous.
189 We equally are not satisfied that James J misconceived the difference between pure and relative political offences. As we read his Honour’s reasons, and consistent with what we have said above, James J concluded that, even if the offences were to be characterised as breaches of the exchange control regulations, these offences could only give rise (if at all) to a relative political offence because of the character of the exchange control laws. Those laws were not directed at protecting the political order. In consequence Mr Dutton’s “motive or purpose” would be relevant even if the offences were to be characterised as Mr Dutton contended. There is, with respect, no misconception betrayed in this process of reasoning.
190 We would dismiss the appeal against James J’s rejection of the s 7(a) extradition objection.
CONCLUSION
191 Having found that James J committed no appellable error, we would dismiss the appeal with costs. In consequence, and in accordance with s 21(6)(g) of the Act, we confirm that Edward Isaac Dutton is eligible for surrender in relation to all fourteen offences charged in the indictment a copy of which is annexed to the affidavit of Andries Petrius de Vries sworn 29 December 1997.
| I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett and Finn. |
Associate:
Dated: 26 August 2003
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | N 1288 OF 2002 |
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES
| BETWEEN: | EDWARD ISAAC DUTTON APPELLANT
|
| AND: | PATRICIA JUNE O'SHANE FIRST RESPONDENT
THE REPUBLIC OF SOUTH AFRICA SECOND RESPONDENT
|
| JUDGE: | FINN, DOWSETT & CONTI JJ |
| DATE: | 26 AUGUST 2003 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
CONTI J
192 I have had the advantage of reading in draft the reasons for judgment of Finn and Dowsett JJ. I agree, for the reasons expressed by their Honours, that leave should be granted to the appellant to raise, for the first time on appeal, a ground for review to the effect that the fraud offences alleged against the appellant do not constitute extradition offences for the purposes of the definition of ‘extradition offence’ contained in s 5 of the Extradition Act 1988 (Cth) (the Extradition Act). However, I take a different view upon the resolution of this ground of appeal, to that which has commended itself to Finn and Dowsett JJ. I have reached that conclusion because since the penalty for the subject fraud offences in South Africa is at large, it cannot be said that there is a ‘maximum penalty… [of] imprisonment or other deprivation of liberty, for a period of not less than 12 months’, so as to attract the operation of subpar (a)(i) of the s 5 definition of ‘extradition offence’.
193 The approach I would take in this appeal has rendered it necessary for me firstly to consider whether it was the function of the magistrate presiding at the s 19 hearing to resolve the issue as to whether the offences relied upon in the South African supporting documents (see s 19(3)) were extradition offences. An appropriate starting point is the decision of the Full Federal Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282. In that case, the Full Court of the Federal Court (Lockhart, Gummow and Hill JJ) determined, inter alia, that the ‘ultimate issue to be decided’ by the s 19 magistrate ‘is whether the person, in respect of whom the extradition request is made, is “eligible for surrender”’ (at 303). It was held (further at 303-4) that the s 19 magistrate was required to determine the following constituent matters:
‘1. Is the offence one which qualifies as an extradition offence?(see s 5).
2. Is the requesting country an extradition country? (see s 5)
3. Are the documents produced to him as “supporting documents” under s 19(2)(a) within the definition of that expression in s 19(3) having regard to the following questions:
(a) is there a duly authenticated warrant of the kind described by s 19(3);
(b) if the extradition is in respect of a conviction, are there duly authenticated documents which provide evidence of the matters in s 19(3)(b);
(c) is there a duly authenticated statement in writing setting out the matters in s 19(3)(c)(i);
(d) is there a duly authenticated statement in writing setting out the conduct constituting the offence (see s 19(3)(c)(ii)?’
194 The result reached by their Honours that the s 19 magistrate must be satisfied that the offence qualifies as an ‘extradition offence’, in determining the person’s eligibility for surrender, is I think readily apparent, given the emphasis of that legislative expression in the following subsections thereof:
‘(1) … the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate;
…
(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia… that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia;
…
(3) In paragraph (2)(a), “supporting documents”, in relation to an extradition offence, means:
…
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence;
(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:
…
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General;
(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:
(a) order that the person be released; and
(b) advise the Attorney-General…’
195 In Bennett v Government of the United Kingdom (2001) 179 ALR 113, Katz J considered an application for review of an order of a magistrate who had found that the fugitive was eligible for surrender to the United Kingdom in respect of two offences of fraud under Scottish law. In the course of his Honour’s reasons for judgment, Katz J observed (at [6]) as follows:
‘Subsequently to Zoeller, the High Court of Australia (Brennan CJ and Dawson, Toohey, McHugh and Gummow JJ), in Kainhofer, held that it was no part of a magistrate’s function under s 19 of the Act to determine whether a person the subject of an extradition request was an “extraditable person” within the meaning of s 6 of the Act. That definitional provision has three elements, one of which (par (b)) is relevantly that the offence or any of the offences in relation to which a warrant is or warrants are in force for the arrest of a person is an “extradition offence”. It might be possible to mount an argument that the effect of the High Court’s decision in Kainhofer was that, in so far as this Court held in Zoeller that a magistrate determining a person’s extradition eligibility is required to determine whether the offence is one which qualifies as an extradition offence, its holding was impliedly overruled by Kainhofer. However, no such argument was mounted before me and I will therefore simply follow Zoeller herein on the “extradition offence” point, without troubling to consider whether such an argument would, if made, be likely to succeed.’
196 Although Katz J thus followed the Full Federal Court’s decision in Zoeller, Senior Counsel for the second respondent to the present appeal submitted that the High Court’s decision in Director of Public Prosecutions (Cth) v Kainhofer (1985) 185 CLR 528 is implicitly inconsistent with Zoeller, in so far as that authority relatestothe function of the s 19 magistrate to be satisfied that the offence constitutes an extradition offence prior to determining the person’s eligibility for surrender, and that therefore Zoeller should not be followed in that regard. For the reasons expressed below, that submission should not in my opinion be upheld.
197 In Kainhofter, a person accused of a number of misappropriation and malversion offences under the Austrian Penal Code was held to be eligible for surrender by a Queensland Magistrate. An application for a review of the magistrate’s decision was dismissed by the Supreme Court of Queensland. On appeal to the Full Court of the Federal Court, the magistrate’s orders were quashed on the grounds that the documents setting out the extradition request could not have persuaded the magistrate, in accordance with s 19(2)(a) of the Extradition Act, that Ms Kainhofer was a person accused of the offences to which the warrant referred. The principal question which arose for determination before the High Court was whether the s 19 magistrate was required to resolve the eligibility of the person for surrender on the basis that the person was an ‘extraditable person’ within the scope of s 6 of the Extradition Act. It was held (at 539, 541, 553-4) that the s 19 magistrate was not required to make that determination, but rather that the question arose for determination when, as a first step in the extradition process, a magistrate was called upon to issue an arrest warrant under s 12 and when the Attorney-General was deciding whether to give a notice to a magistrate under s 16.
198 As the appellant rightly submitted, the conclusion reached by the High Court is unsurprising, given that the requirement to consider whether a person is an ‘extraditable person’, in relation to the extradition country, is not repeated in s 19(2) of the Extradition Act. That is not inconsistent with the plain language of s 19 that the function of the s 19 magistrate extends to his or her consideration whether an extradition offence exists in respect of the person’s eligibility for surrender. In order to reach the conclusion that the essential pre-conditions to the exercise of the power in ss 19(9) and (10) are satisfied, namely that the person is or is not eligible for surrender, it is readily apparent that the magistrate must first make an independent determination as to whether or not there is an extradition offence. The High Court’s decision in Kainhofer does not question the correctness of the Full Federal Court’s decision in Zoeller, and nor is it in my opinion presently on point. I find nothing inconsistent in Kainhofer which persuades me that Zoeller should not be followed in respect of the mandatory requirement that in determining a person’s eligibility for surrender, the s 19 magistrate is to consider whether any offence in the supporting documents qualifies as an extradition offence for the purposes of s 5 of the Extradition Act.
199 The full text of the definition of an ‘extradition offence’ in s 5 of the Extradition Act, together with an extract from Mr De Vries’ affidavit postulating the penalties which may be passed in South Africa upon a person convicted of an offence ‘that will include fraud’, are reproduced at [29-30] in the Reasons for Judgment of Finn and Dowsett JJ. The expression ‘that will include fraud’ was used in that affidavit apparently for the reason that South Africa’s currency exchange control regime, in relation to which the fraud charges relate, has since been abolished (as of course has also occurred in Australia). It is readily apparent that the ‘sentences’ for the offences particularised in the supporting documentation do not carry either a minimum or maximum penalty in South Africa. Section 276 of the South African Criminal Procedure Act, Act No 51 of 1977 merely lists the kinds of ‘sentences’ which ‘may be passed’ (to adopt Mr de Vries’ description) upon the conviction of the appellant for fraud. No maximum penalty of death or imprisonment, or other deprivation of liberty for a period of not less than 12 months, is prescribed for offences of fraud. As Mr De Vries further confirms in his affidavit, the penalty which may be imposed by the Court in South Africa for offences such as those presently charged is discretionary, and is determined by the facts and circumstances of the case and the Court’s interpretation or determination thereof. He asserts that in the light of judicial precedents, sentences ‘for this type of offence’ have been such that the sentence to be imposed on the applicant, if found guilty, will be ‘highly unlikely’ to be less than one year.
200 It is common ground between the parties that the range of sentences which may be imposed upon a person found guilty of fraud in South Africa, and thus in the circumstances of this case, reflects an analogy to the common law offences where penalty is at large (see for example R v Hokin, Burton and Peistly (1922) SR (NSW) 280). In Verrier v DPP [1967] 2 AC 195, the House of Lords held that the length of the term of imprisonment for a common law misdemeanour, including fraud, was not limited to a maximum duration of two years, but was at large and in the discretion of the court (at 220). A passage reproduced in the speech of Lord Pearson (at 219) from Stephen’s History of the Criminal Law of England (1883) Vol. I pp. 489-490 is as follows:
‘But apart from these statutory punishments there are punishments appointed by the common law, both for misdemeanours at common law and also for those statutory misdemeanours for which no punishment is provided by the statute. There are fines and imprisonment and whipping… The statutory rules as to the amount of the fines and the length of the imprisonment which the court may impose are vague to the last degree.’
201 The critical question which therefore arises for determination is whether a penalty which is at large in a non-treaty country seeking extradition is sufficient to satisfy the requirements of an extradition offence as defined in s 5 of the Act, in circumstances where the affidavit evidence of the Attorney-General of the Witwatersrand Local Division of the High Court of South Africa is to the effect that the sentence to be imposed, if guilt be established in that country, is ‘highly unlikely’ to be not less than the s 5(i)(a) stipulation of at least 12 months. In Bennett v United Kingdom (at 51), having regard to what the Full Court of the Federal Court said in Zoeller, Katz J postulated that the test requires a consideration only of the question whether the maximum penalty applicable in respect of the offence, as stated by the requesting country, met the test of an ‘extradition offence’.
202 A summary of the origins of the statutory meaning of ‘extradition offence’ has been presented to the Court by the appellant. Until 1966, substantially the same extradition laws were applicable in Australia as in the United Kingdom. From 1870 to 1935, the Extradition Acts of the United Kingdom were made applicable by Orders in Council and were supplemented by the Extradition Act (1903-1950) (Cth). The Extradition Act 1870 (UK) adopted the enumerative method of listing the offences for which extradition could be sought. Extradition offences were those that fell ‘within any of the 19 genera of conduct described in the list’ (Re Nielsen [1984] 1 AC 606 at 615). An ‘extradition crime’ was defined in s 26 as ‘a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule to this Act’. The first schedule listed 19 crimes in general terms, without any reference to penalty. Like the 1870 UK Act, the Extradition (Foreign States) Act 1966 (Cth) adopted the list or enumerative approach to the definition of an ‘extradition crime’. Schedule 1 to the 1966 Act originally contained a list of 33 offences (later 35). However there was no reference to any level of penalty. The 1988 Extradition Act by contrast adopts, in the definition of an extradition offence in s 5(a)(i), the eliminative or no-list approach. The offence is defined by reference to a prescribed maximum level of punishment. Unlike the present United Kingdom Extradition Act of 1989, which adopts both the no-list and enumerative methods of defining an extradition crime, no vestige of the list method remains in the Australian legislation, though the list method remains the subject of bilateral extradition treaties to which of course subpar (a)(ii) of the definition of ‘extradition offence’ applies.
203 That leaves for consideration the true scope of operation of the defined expression ‘extradition offence’ contained in s 5 of the Extradition Act, and subpar (a)(i) thereof in particular. It should be observed from the outset that sub-para (a)(ii) of that definition was not engaged in the extradition process against the appellant, since there was no treaty in force between Australia and South Africa at the time the request for the appellant’s extradition was made on 2 January 1998. The Treaty on Extradition between Australia and the Republic of South Africa ([2001] ATS 19), made in Canberra on 9 December 1998, came into force on 1 August 2001, and does not apply to requests for extradition made before that time (see Article 16(3)). That reflects of course the explanation for the Republic of South Africa’s absence of reliance upon an extradition treaty with Australia in relation to its request for the appellant’s extradition.
204 The tradition of Australian legislatures has been to prescribe maximum penalties for criminal offences. It has been however the practice in more modern times for judicial officers to impose custodial sentences frequently less than, rather than equal to, legislative stipulated maximum sentences, in the event of course that the offences have been established. It seems to me that in the interests of certainty of prescription, by the s 5 definition of ‘extradition offence’, the Australian Legislature has signified that in the absence of any prescribed maximum penalty to the extent stipulated by subpar (a)(i) thereof, the first limb of the definition has no operation, and therefore there can be no extradition from Australia in the absence of the existence of a subpar (a)(ii) treaty applying in relation to the offence.
205 I do not think that the Explanatory Memorandum to the Extradition Bill of 1987 indicates any test or criteria to the contrary of what I have suggested in relation to subpar (a)(i). The text of the Explanatory Memorandum relevantly is as follows:
‘Extradition offence is defined in relation to both of Australia and to other countries. Generally to be an extradition offence, the offence must carry a maximum penalty of death or imprisonment (or other derivation of liberty) for a period of not less than 12 months. The definition in sub-paragraph (a)(ii) caters for countries in which treaties have the force of law without the need for further legislative action in that country. In respect of such countries the definition recognises that certain extradition treaties require specified conduct to be treated as an extradition offence with the effect that a country’s law may contain an offence for which no specific penalty has been prescribed. In such a case the definition waives strict compliance with the minimum penalty requirement but does so on the basis that the extradition treaties contemplated by the provision deal with serious crimes proscribed by multilateral conventions, for example, the conventions on genocide, hijacking and the taking of hostages.’
206 True it is that the Explanatory Memorandum refers to a ‘minimum penalty requirement’, but it does so in the sense that the maximum penalty must be death or imprisonment, and the minimum imprisonment penalty must be 12 months. That language seems to me to postulate a subpar (a)(i) test which does not accommodate an offence for which no maximum statutory penalty has been proscribed, irrespective of the nature of the offence. Hence the reason for the alternative legislative stipulation of subpar (a)(ii) extradition offences, where ‘the offence does not carry a penalty under the law of the country’.
207 The construction of subpar (a)(i) of the definition of ‘extradition offence’, which I prefer, also attracts a measure of implicit support from par (b) of the definition of ‘extradition offence’ (which addresses of course the converse circumstance of extradition to Australia rather than extradition from Australia), in that the latter definition picks up implicitly the usual Australian legislative practice of stipulating a maximum penalty for criminal offences. It is unlikely that the not dissimilar wording of par (b) of the definition would have a sphere of operation additional to or wider than the converse circumstance of extradition from Australia.
208 Accordingly, I prefer the view that the extradition proceedings have miscarried, by reason of the non-fulfilment of subpar (a)(i) of the s 5 definition of ‘extradition offence’. That view avoids the imputation of other than a truly objective test, such as opinions on likely penalty, being opinions that do not take account of periods of incarceration in the country of temporary residence pending extradition of the fugitive. In that regard, I observe that the appellant has been in custody in Australia since 18 December 2000, albeit occasioned by his resistance to extradition.
209 Were it not for my conclusion as to the non-fulfilment of s 5(a)(i) of the Extradition Act, I would have joined in the reasons for judgment of Finn and Dowsett JJ. If my conclusion had prevailed, I would have allowed the appeal, quashed the orders of the Supreme Court of New South Wales and of the first respondent, and in lieu thereof I would have determined that the appellant is ineligible for surrender. I would have further ordered that the appellant be released from custody forthwith and that the respondents pay the appellant’s costs of the appeal to the Full Court. Although what I consider to have been a successful appeal ground was raised by the appellant for the first time in the present appellate proceedings, I would nevertheless have set aside the order for costs made in relation to the proceedings in the Supreme Court of New South Wales, but would have made no other order as to the costs of those proceedings.
| I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. |
Associate:
Dated: 26 August 2003
| Counsel for the Appellant: | T A Game SC and Sarah Pritchard |
| Solicitor for the Appellant: | Fox & Staniland Lawyers |
| | |
| Counsel for the First Respondent: | No appearance |
| Solicitor for the First Respondent: | Crown Solicitor’s Office |
| | |
| Counsel for the Second Respondent: | P Neil SC and P McDonald |
| Solicitor for the Second Respondent: | Commonwealth Director of Public Prosecutions |
| | |
| Date of Hearing: | 14, 15, 16 May 2003 |
| | |
| Date of Judgment: | 26 August 2003 |
