FEDERAL COURT OF AUSTRALIA

EXTRADITION – jurisdiction to determine whether Treaty has been complied with – powers of a magistrate acting pursuant to s 19 of Extradition Act – “all available information” – question of determination of “all available information” is a matter for the requested State – identification of person referred to in extradition request – adequate description of each offence – statement of acts or omissions alleged in each offence – whether earlier unsuccessful extradition request precludes the making of another request – whether the offence in question would have been an offence in Tasmania

Extradition Act 1988 (Cth) s 19

Treaty between Australia and the Federal Republic of Germany concerning Extradition (done at Bonn on 14 April 1987) Articles 9, 10 & 11

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528

Harris v Attorney-General (1994) 52 FCR 386

Todhunter v United States of America (1995) 57 FCR 70

Papazoglou v Republic of the Philippines (1997) 144 ALR 42

McDonald v Attorney-General [1980] 24 SASR 294 at 301

In re Parisot [1889] 5 TLR 344 at 345

Reg v Governor of Pentonville Prison ex parte Voets [1986] WLR 470 at 474

federal republic of germany v gregory parker

TG 12 of 1997

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      the appeal be allowed

2.      the orders of the primary judge made on 10 July 1997 be set aside

3.      in lieu thereof, the orders of the magistrate made on 14 May 1997 be confirmed

4.      the respondent pay the appellant’s costs of the appeal and of the proceeding before the primary judge

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT: 

INTRODUCTION

This is an appeal from a judgment of a single judge of the Court reviewing under s 21(1) of the Extradition Act 1988 (Cth) (the Act) an order made on 14 May 1997 by a magistrate, Mr Wright, in relation to the respondent, Gregory Parker, determining that he was eligible for surrender for the offences for which extradition had been sought by the applicant and issuing a warrant for his detention. 

The Federal Republic of Germany (FRG) had procured the issue, on 31 October 1991, by the District Court at Koblenz of a warrant for the arrest of the respondent (the 1991 warrant) on the following charge (as translated):-

The person charged is highly suspected of having traded with narcotics in a not insignificant quantity and without licence at least from July 1989 until at least June 1991 in Lahnstein, Koblenz and at other places by at least nine independent criminal acts conjointly and on a commercial basis as a member of a gang who has combined for the continued execution of such acts.

On 20 May 1992, Mr Estcourt, a magistrate, held that the respondent was not eligible for surrender in respect of the offences detailed in the 1991 warrant.  Subsequently, on 19 July 1996, the FRG procured the issue of a fresh warrant, also in Koblenz, seeking the arrest of a person named George Parker who was described as having been born on 1 June 1939 in Bocki, Poland and having used the alias “Gregory Parker” and some thirteen other aliases.  The warrant recited that the subject was:-

...highly suspected by seven legally independent acts between November 1990 and June 1991 in Lahnstein, Koblenz (both located in Germany) and at other places having traded with narcotics in a not insignificant quantity without a license pursuant to Section 3, paragraph 1 number 1 of the Narcotics Law and thus having acted conjointly as a member of a gang who has combined for the continued commission of such acts.

The warrant then detailed, with considerable particularity, activities allegedly undertaken by the subject as a member of a gang involved in purchasing heroin in Thailand, conveying it to Australia and reselling it in this country at a profit.

On 10 April 1997 the respondent was arrested on a provisional warrant issued under s 12 of the Act.  In the course of an application for bail, Counsel for the FRG, after an adjournment, tendered three documents which we have been told were obtained from the Australian Federal Police in Canberra.  Those documents were described by the learned primary judge as “the identification documents” and we shall adopt the same nomenclature.  The first identification document was a telex message from Interpol in Canberra to the Australian Federal Police in Tasmania and recited that one Grzegorz Sobolewski born on 1 June 1939 at Bocki, Poland had been sentenced to nine months’ imprisonment for theft in Vienna on 15 November 1985.  It went on to indicate that Sobolewski had escaped from prison and been re-arrested in Vienna on 5 October 1989.  The same document recited that the subject had acquired Australian citizenship on 30 January 1985 and had changed his name by deed poll on four occasions acquiring an Australian passport in each of his new names which were listed.

The second identification document was addressed to “Interpol CANBERRA - WIESBADEN - IP Lyon SG”.  There followed this “reference”:-

Canberra  -  IP/O/8/85/11-27  -  18321/89  of  3.11.89

Wiesbaden  -  EA 33-(TB 21-12)  B  509  011,  PR  32-22  S  279  762

The subject of the memorandum was described as:-

SOBOLEWSKI Grzegorz, born 1.11.1939 (alias 1.6.39).

stateless;

fugitive.

The body of that memorandum was in these terms:-

Attached please find photograph and fingerprints of SOBOLEWSKI Grzegorz, born 1.11.39 in Bock7/Poland, Australian national.

His identity has not been established with certainty.

His latest recording took place in Vienna on 6.10.89 under name BENET Grzegorz, born 1.6.39 in Bocki/Poland, when he was arrested for escape from prison.

Our files contain identical fingerprints, taken as follows:

a)    under name SOBOLEWSKI Grzegorz, b. 1.11.39  Bocki/Poland

         31.1.74          Vienna,       dangerous threats,

           6.6.74          Vienna,       burglary,

       26.11.74          Vienna,       shoplifting,

       17.12.80          Vienna,       fraud.

b)    under name SOBROLEWSKI Gregor, born 1.11.39 in Botzki/Poland, on 29.11.79 in Klagenfurt, for use of documents belonging to others.

c)    under name DIXON Gregory, born 1.6.39 in Bocki/Poland, on 4.5.85 in Vienna for theft.

Please let us know all relevant information you may possess or be able to obtain about this individual.

The third identification document bore, at the top, a reference number “A - 156/4 - 1994” followed by three photographs of the head, apparently of the same man, taken from different aspects and ten photographs of fingerprints labelled in French, English, Spanish and Arabic.  Under the facial and fingerprint photographs appeared the legend:-

PHOTOGRAPHED ON 4TH SEPTEMBER 1985 IN VIENNA, AUSTRIA

FINGERPRINTED ON 10TH MARCH 1979 IN MUNICH, GERMANY

The rest of the third identification document was in these terms:-

PRESENT FAMILY NAME:  PARKER

PREVIOUS FAMILY NAME: SOBOLEWSKI

FORENAME:  George

SEX:  M

DATE AND PLACE OF BIRTH:  1st June 1939 - Bocki, Poland

FATHER’S FAMILY NAME AND FORENAME:       SOBOLEWSKI Mikolei

MOTHER’S MAIDEN NAME AND FORENAME:     TIMOSEW Maria

IDENTITY NOT CONFIRMED  -  DUAL NATIONALITY:  POLISH AND AUSTRALIAN (NOT CONFIRMED)

DESCRIPTION:  Height 180 cm, stocky build, wavy fair hair, grey-blue eyes.

ALSO KNOWN AS:

PARKER Gregory, born on 1st June 1939;

SOBOLEWSKI Gregor, born on 1st November 1939;

SOBOLEWSKI Grzegorz, born on 1st November 1939;

BENET Gregory, born on 1st November 1939;

BENET Grzegorz, born on 1st June 1939;

SOBOLEWSKI Gregory, born on 1st June 1938 or 1939;

KENT Gregory, born on 1st June 1939;

WATSON, Gregory, born on 1st June 1939;

DIXON Gregory, born on 1st November 1939;

JANUSCH Gregory, born on 1st November 1939;

SLOGAR Gregory, born on 1st November 1939;

SOBOLEWSKI Grzegorz, born on 1st June 1939;

SOBOLEWSKI Grzegorz, born on 1st November 1939;

GRZEGORZ Sobolewsky, born on 1st November 1939 in Bocki;

SOBROLEWSKI Gregory Brun, born on 1st November 1939

IDENTITY DOCUMENTS:

Passport No. T620181, issued on 25th March 1985 in Hobart, Australia, in the name DIXON Gregory;  Passport No. J-0991908, issued on 6th July 1989 in Hobart, Australia, in the name BENET Gregory;  Passport No. K-0213134, issued on 16th October 1990 in Australia in the name PARKER George;  Passport No. J-0336340, issued on 7th September 1988 in Hobart, Australia, in the name BENET Gregory;  Passport No. J-1441974, issued on 1st February 1990 in Warsaw, Poland;  Passport No. G-598231;  passport No. H-329397.

OCCUPATION:  Pet shop/zoo assistant.

COUNTRIES LIKELY TO BE VISITED:  Australia, Thailand.

LANGUAGES SPOKEN:   Polish, English, German.

MAXIMUM PENALTY POSSIBLE:  15 years’ imprisonment.

ACCOMPLICES:

KENT Bob, born on 24th June 1961, subject of red notice File No. 23720/91, Control No. A-155/4-1994;  BARTOSIEWICZ Piotr, born on 7th January 1958, subject of red notice File No. 23719/91, Control No. A-154/4-1994;  LASKOWSKI Andreas, born on 24th August 1950, subject of red notice File No. 25711/91, Control No. A-153/4-1994;  MORGAN Mark, born on 9th December 1961, subject of red notice File No. 25956/91, Control No. A-152/4-1994.

SUMMARY OF FACTS OF THE CASE:  THAILAND AND AUSTRALIA:  From July 1989 to July 1991, PARKER and four accomplices operated as a gang and organized the transport of heroin from Thailand to Australia.  They recruited couriers in Lahnstein, Koblenz and other towns in Germany and in Austria, obtained their tickets and visas, and paid them for their courier services.  On 31st August 1991, ten couriers were arrested in Germany and identified this group of five as the organizers, financial backers and suppliers of the drugs transported from Bangkok to Sydney.  Known transports between 1989 and 1991 totalled 2 kg 912, 1 kg of which was seized in Sydney on 11th July 1991 (it had been smuggled from Bangkok via Poland to Germany by MORGAN).  In addition, on 2nd June 1991 a female courier was arrested in Bangkok in possession of 200 g of heroin.

REASON FOR NOTICE:  Wanted on arrest warrant No. 30 Gs II 1735/93, issued on 22nd April 1993 by the judicial authorities in Koblenz, Germany, for organized heroin trafficking with accomplices.

EXTRADITION WILL BE REQUESTED FROM ANY COUNTRY.

If found, please detain and immediately inform INTERPOL WIESBADEN (Reference PR 32-03 S - 279 762 f.A. of 30th March 1994) and the ICPO-Interpol General Secretariat.

The learned primary Judge, after noting that it was not in issue that the identification documents did not accompany the extradition request, identified that:-

The critical question therefore is whether the identification documents, or any of them, constituted information ‘available’ to the Requesting State (the FRG) at the time the extradition request was made.

What made that question critical was the terms of Article 9 of the Treaty between Australia and the FRG concerning Extradition done at Bonn on 14 April 1987 (the Treaty) which forms part of Australian domestic law by force of s 11 of the Act and the Extradition (Federal Republic of Germany) Regulations No. 134 of 1990 (Cth).  Article 9, so far as is relevant, provides:-

ARTICLE 9

(1)     A request for the extradition of a person claimed shall be in writing.  All documents furnished in support of a request for extradition shall be duly authenticated.

(2)     The request shall be accompanied by:

         (a)     all available information concerning the identity and nationality of the person claimed; and

         (b)     a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law and in either case a statement of the punishment that can be imposed.

(3)     A request for the extradition of a person claimed for the purpose of prosecution shall be accompanied, in addition to the documents provided for in paragraph (2), by a warrant for the arrest, or a copy of the warrant for the arrest of the person claimed, a description of each offence for which the person is claimed, and a statement of the acts or omission alleged against the person claimed in respect of each such offence.

(4)     A request for the extradition of a person claimed for the carrying out of a sentence shall be accompanied, in addition to the documents provided for in paragraph (2), by a summary statement of the facts of the case unless they appear from the other documents, such documents as provide evidence of the final and binding conviction and a statement that the sentence is immediately enforceable and of the extent to which that sentence has not been carried out.

The learned primary judge disregarded the first identification document which he characterised as an internal Australian document from Interpol in Canberra to the Australian Federal Police in Tasmania.  The second and third documents were viewed differently.  As to them, his Honour said:-

However, the second document, the one headed Interpol Wien, was on its face sent to Wiesbaden, which it is accepted is a city in Germany, and at a time prior to the forwarding of the request.  It contains information concerning the identity and nationality of the person claimed, including the comment that the person’s identity ‘has not been established with certainty’.  As to the third document, I infer from the reference number which includes the year 1994 that it came into existence before 1996.  The concluding request to inform Interpol Wiesbaden, and the reference to ‘Countries likely to be visited’ as Australia and Thailand, give rise to the inference that it is not an Australian document but emanated from Weisbaden [sic].  The third document also contains information as to the identity and nationality of the person sought to be extradited.

The learned primary judge met an argument that Article 9(2)(a) did not apply to information contained in the second and third identification documents which may have been outdated or superseded, by observing:-

The short answer is that counsel for the FRG considered the identification documents sufficiently relevant to advance them in opposing the application for bail.  Moreover, information such as birth dates, names, fingerprints and previous convictions of a person whose extradition is sought are historical events and circumstances which, if true, do not become ‘outdated’ in relation to the issue of identity.

His Honour then turned to the concept of “all available information” erected by Article 9(2)(a) of the Treaty and, after referring to dictionary definitions of the epithet “available”, continued:-

In the context of Article 9(2)(a) the entity to which information has to be available is a sovereign government.  Obviously it would not be enough merely to show that the information in question was physically present within the territory over which that government had jurisdiction.  But if ‘available’ in this context means, as I think it does, that the information was ‘at hand’ or at the government’s ‘disposal’, that requirement would be satisfied if the information was in the possession of that part of the apparatus of government whose function it was to hold information of the kind in question.  If the person or entity holding the information was not constitutionally part of the apparatus of government, it would be nonetheless ‘available’ if a relevant part of the government could obtain access to that information.  Such access might come as a result of the exercise of governmental power, or by arrangement in the usual course of carrying out governmental functions.

The information in question came into the possession of an Interpol office in Germany.  Since the particular governmental function being exercised by the FRG in the present case was obtaining extradition from another country of a person alleged to have infringed the laws of the FRG, the most logical place for the FRG government to seek information relating to the identity and nationality of such a person would be the offices of Interpol, a body whose raison d’être is international co-operation and intelligence sharing between law enforcement bodies.  And if the government of the FRG sought such information from Interpol, there is no logical reason why the latter would not provide it.

After reviewing the reasoning of the magistrate on the meaning of “all available information” his Honour suggested:-

...his Worship appears to have confused two distinct issues.  First, did all available information concerning identity and nationality accompany the request?  Secondly, was the person appearing before the Magistrate the person sought in the extradition request?  The first issue is a matter of compliance with legal pre-conditions for a surrender order.  Extradition proceedings do not involve a determination of guilt or innocence.  The question is whether there has been compliance with the provisions of the Act and, where the Act gives statutory force to a Treaty, the requirements of that Treaty.  Neither the Act nor the Treaty contain any provisions giving a Magistrate, or this Court, power to waive non-compliance. The argument of the FRG implicitly accepted that a failure to comply with this particular requirement (and any requirement of the Act or Treaty) would be fatal.  The second issue is simply a question of fact to be determined on the evidence before the Magistrate and the inferences which can be properly drawn from such evidence.  I shall shortly turn to that second issue.  But on the first issue I find that the second and third identification documents constituted information concerning the identity and nationality of the person claimed, that such information was available to the FRG at the time the request for extradition was made, but did not accompany the request.  Accordingly I find there has been non-compliance with Article 9(2)(a) of the Treaty.

The remaining issues were whether the magistrate could have been satisfied that the respondent was the person referred to in the request, whether the 1996 request adequately described each offence and the acts or omissions alleged as constituting it, whether the earlier, unsuccessful, request for extradition in 1991 precluded the making of another request and whether the conduct alleged against the applicant would have constituted an extradition offence had it been committed in Tasmania.  All those issues were resolved against the respondent and form the basis of his notice of contention in this appeal.  On the basis of his finding in respect of the first issue, the learned primary judge quashed the magistrate’s order and also the warrant issued by him for the detention of the respondent.  He directed that the magistrate order the release of the respondent and made certain orders as to costs.

THE APPEAL

A number of submissions were made by the appellant and contested by the respondent to the effect that his Honour had erred in holding that there had been non-compliance with Article 9(2)(a) of the Treaty.  A challenge was made to his Honour’s finding that the second and third identification documents were “available” to the FRG to accompany the request for extradition.  It was further submitted that, if they were so available, a reasonable and purposive construction of the Treaty would not require that they be forwarded to Australia in connection with the request.  It was submitted that the terms of Article 9(2)(a) did not require that all information available to the FRG relating to identity and nationality should accompany the request.  Documentary material which was out of date, superseded, of dubious relevance, or merely repetitive could be omitted without there being any breach of the Treaty obligation.  As against this it was submitted on behalf of the respondent that there would not be compliance with the Treaty if a State selected, from a range of material, items of information which would assist the extradition request whilst omitting material which might have the contrary effect. 

These submissions, which were fully argued and supported by references to authority, proceeded on the basis that the magistrate and, consequently, the primary judge had jurisdiction as a result of the operation of the Act and the Treaty to determine whether the requirements of Article 9(2)(a) had been complied with by the FRG.  After the decision on the appeal had been reserved, the Court became concerned as to whether that jurisdiction in fact existed.  If it did not, the Court itself, on appeal from the learned primary judge, likewise had no jurisdiction to determine the matter.  The question having thus arisen, the Court requested submissions from the appellant and the respondent as to whether the magistrate had this power when performing his duties under s 19 of the Act and also whether he was necessarily required, when exercising those powers, to satisfy himself that the person before him, whose eligibility for surrender was in question, was in fact the person in respect of whom the order was sought.  Submissions were received from counsel for the appellant and the respondent.

As the question of jurisdiction is a threshold matter, it is appropriate to consider it at this point in our reasons.  The provisions of the Act which bear upon this question were the subject of consideration by the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528.  Under the heading (at 533) of “A brief conspectus of the Act”, reference was made in the majority judgment (Brennan CJ, Dawson & McHugh JJ) to the relevant sections of the Act and their effect.  This portion of the judgment, so far as is relevant to the present case, reads as follows (at 533-538):-

When an extradition country seeks the extradition of a person from Australia, it must invoke the powers of a magistrate under s 12(1) of the Act and of the Attorney-General under s 16 of the Act.  Under s 12(1), an application, in statutory form, must be made to a magistrate for the issue of a warrant for the arrest of that person.  The form of application for a warrant of arrest (form 4) prescribes that an affidavit be annexed setting out information showing that the person is ‘an extraditable person for the purposes of that Act in relation to’ the country seeking extradition.  The term ‘extraditable person’ is defined by s 6 of the Act:

              ‘ Where:

            (a) either:

                   (i)  a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; ...

                   ...

            (b) the offence or any of the offences is an extradition offence in relation to the country; and

            (c) the person is believed to be outside the country;

            the person is, for the purposes of this Act, an extraditable person in relation to the country.’

If the magistrate is satisfied, on the basis of information given by the affidavit, that the person is an extraditable person in relation to the extradition country, the magistrate is required to issue a warrant for the arrest of the person and to send forthwith to the Attorney-General a report of the issue of the warrant together with a copy of the affidavit (s 12(1)(b), (2)).

The Attorney-General’s powers are enlivened by the receipt of an extradition request (s 16(1)).  The action to be taken by the Attorney-General if extradition is to proceed is the issuing of a written notice directed to a magistrate stating that the request has been received.  Section 16(2) prescribes the conditions governing the Attorney-General’s power to give the notice (hereafter the ‘s 16 notice’).  That sub-section provides:

            ‘The Attorney-General shall not give the notice:

            (a) unless the Attorney-General is of the opinion:

                        (i)  that the person is an extraditable person in relation to the extradition country; and

                        (ii)  that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

            (b)  if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.’

The Attorney-General may receive an extradition request either before or after the person whose extradition is sought is arrested pursuant to the magistrate's warrant.  If the Attorney-General decides before the arrest not to issue a s 16 notice, he directs the magistrate to cancel the warrant (s 12(3)).  But if the person has been arrested under the warrant and is remanded in custody or on bail, as provided for by s 15, and the Attorney-General decides not to issue a s 16 notice, he directs the magistrate to release the person from custody or discharge the recognisances on which bail was granted (s 17(1)).  Where the Attorney-General issues a s 16 notice and the person has been arrested pursuant to the magistrate’s warrant and has been remanded either in custody or on bail, the extradition procedure follows one of two paths: either the person consents to being surrendered under s 18 or proceedings are conducted by a magistrate under s 19.

Where the person consents to being surrendered and the procedure prescribed by s 18 is followed, a warrant is issued committing that person to prison to await surrender or release pursuant to a further determination by the Attorney-General under s 22.  Where the person does not consent, he is remanded in custody or on bail pending the conduct of proceedings under s 19.  The function of a magistrate who conducts proceedings under s 19 (hereafter a ‘s 19 magistrate’) is in issue in this appeal.  Section 19 provides, inter alia, as follows:

            ‘(1) Where:

                   (a)  a person is on remand under section 15;

                   (b)  the Attorney-General has given a notice under subsection 16(1) in relation to the person;

                   (c)  an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

                   (d)  the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

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;

                   (b)  where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents 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 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; and

                   (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.

            (3) In paragraph (2)(a), 'supporting documents', in relation to an extradition offence, means:

                   (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:

                        (i)  a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

                        (ii)  a duly authenticated statement in writing setting out the conduct constituting the offence.’

Where the s 19 magistrate determines that the person is eligible for surrender to the extradition country in relation to one or more extradition offences, a warrant is issued committing the person to prison ‘to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5)’ (s 19(9)) - that is, surrender or release pursuant to a determination by the Attorney-General under s 22. If the s 19 magistrate determines that the person is not eligible for surrender, the person is released and the Attorney-General is notified (s 19(10)).  Provision is made by s 21 for judicial review of the s 19 magistrate's order.

A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b).  The character of "the conduct of the person constituting the offence ... or equivalent conduct" must be ascertained under sub-s (2)(c).  And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d).  The term "extradition objection" is defined by s 7.

When a person has been committed to prison pursuant to a magistrate’s determination under s 19(9), that person becomes an ‘eligible person’ within the definition of that term in s 22(1) and is eligible for surrender. As soon as is reasonably practicable after the eligible person's committal, the Attorney-General is required by s 22(2) to ‘determine whether the person is to be surrendered’.  The Attorney General is authorised to issue a surrender warrant only if the conditions prescribed by s 22(3) are satisfied. These conditions include:

            ‘(a)  the Attorney-General is satisfied that there is no extradition objection in relation to the offence;’

            and

            ‘(f)  the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.’

If any of the conditions prescribed by s 22(3) is not satisfied, the Attorney-General orders the release of the person(s 22(5)).

No question arises in the present case as to the existence of an extradition objection.  The magistrate, whose decision was reviewed by the learned primary judge, was performing the role of the “s 19 magistrate” referred to in the passage cited.  Prior to this, the respondent had been arrested pursuant to a warrant issued under s 12 of the Act and the Attorney-General, having received an extradition request from the FRG, had issued a notice pursuant to s 16.  The respondent, having been arrested pursuant to the warrant, had been brought before a magistrate to be dealt with in accordance with s 15 of the Act.  That section provided that he should be remanded in custody or on bail for the period necessary for proceedings under s 19 to be conducted.  The respondent had sought bail.  This application was opposed by counsel for the FRG.  It was in relation to this opposition that the “identification documents” were produced and tendered to the magistrate.  These documents, as has been seen, referred to the respondent having previously absconded from custody.  They were, accordingly, relevant to the application for bail.  As was conceded, they had not accompanied the extradition request made by the FRG and, quite clearly, would not have been introduced into the case were it not for the use sought to be made of them in the bail application.  Their provenance was not the subject of evidence in the s 19 proceedings nor in the review proceedings under s 21 before the learned primary judge.  Indeed, there having been no evidence given before the magistrate, no further evidence could be given as to their origin before the primary judge (s 21(6)(a)(d)), the judge making his findings as to their availability at the time of the extradition request by inference from their contents.

We have already referred to the circumstance that the Treaty became part of Australian domestic law by force of s 11 of the Act and the Extradition (Federal Republic of Germany) Regulations No 134 of 1990 (Cth).  It is convenient at this stage to refer to relevant provisions of the Treaty in addition to Article 9, to which reference has already been made.  These are Articles 10 and 11 which provide as follows:-

ARTICLE 10

(1)  Documents which, in accordance with Article 9, accompany a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the Requested State.

(2)  Documents are duly authenticated for the purposes of this Treaty if:

    (a)   in the case of warrants they are signed, and in any other case, they are certified, by a Judge, Magistrate or other competent authority in the requesting State, and

    (b)   they are sealed with the official or public seal of the Requesting State or of a Minister of State, or a Department or officer of the Government, of the Requesting State.

ARTICLE 11

(1)  If the Requested State considers that the information furnished in support of the request for the extradition of a person claimed is not sufficient to fulfil the requirements of its law with respect to extradition, that State may request that additional information be furnished within such time as that State specifies.

(2)  If the person claimed is under arrest and the additional information submitted as aforesaid is not sufficient or is not received within the time specified by the Requested State, he shall be discharged from custody, but such discharge shall not bar a subsequent request in respect of the same offence.

It is convenient also to refer to certain subsections of s 11 of the Act which deals with the “modification of the Act in relation to certain countries”.  Section 11(1)(a) provides as follows:-

The regulations may:

         (a)   state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; ...

         ...

(1C)     For the purposes of subsections (1) ..., the limitation, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.

...

It may be noted that reg 5 of the Regulations is in conformity with subs (1C) with the result that “the limitations, conditions, exceptions or qualifications that are necessary to give effect to” the Treaty became part of Australian domestic law.  It may also be noted that Article 24 of the Treaty itself provides that “proceedings with regard to provisional arrest, extradition and transit shall be governed solely by” Australian law.

Additionally, subs 11(6), so far as relevant, provides as follows:-

For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).

POWERS OF THE MAGISTRATE

As appears from the legislative and Treaty provisions, a magistrate, who will not necessarily be the same person, is required to perform a role in relation to a requested extradition on three occasions.  First, a provisional arrest warrant is issued under s 12 of the Act on affidavit evidence in the absence of the person whose arrest is sought.  Having issued the warrant, the magistrate reports that fact to the Attorney-General who is furnished with a copy of the affidavit (s 12(2)).  Secondly, after an arrest has been effected in accordance with the warrant, the person arrested is brought before a magistrate who then determines whether the person shall be remanded in custody or granted bail in accordance with s 15 of the Act.  On this occasion, quite clearly, the person whose extradition is sought will be in the presence of the magistrate.  The person will be able to apply personally or through a legal representative for bail.  Obviously, this would also be an appropriate occasion for the person arrested to raise any assertion that he or she is not in fact the person in respect of whom extradition is sought.  Thirdly, assuming that proceedings under s 19 of the Act are necessary, a magistrate will determine in accordance with that section whether the person arrested is, in accordance with that section, eligible for surrender.  On this occasion, the person arrested will also be before the magistrate.  It must also be noted that the magistrate does not conduct proceedings under s 19 unless the Attorney-General, having received the relevant extradition request, has given an appropriate notice under s 16 of the Act.  This notice, as appears from the section set out above, is given in the discretion of the Attorney-General but is not to be given unless (inter alia) the Attorney-General is of the opinion that “the person is an extraditable person in relation to the extradition country”.

This case is concerned with the powers of the magistrate when acting pursuant to s 19.  It is clear from authority that in considering the ambit of those powers regard must be paid to the role and powers of the Attorney-General and of the magistrates performing the first and second roles referred to.  These matters were the subject of detailed consideration in Kainhofer.  It is appropriate further to consider that case at this point in our reasons.

It will have been noted that both in the definition of the term “extraditable person” and in s 19(3)(a) reference is made to the person whose extradition is sought as being a person “accused” of having committed a relevant extradition offence.  The decision under appeal in Kainhofer was a decision of a Full Court of this Court which had been given in the following circumstances.  Kainhofer had been arrested upon a warrant, issued by a magistrate under s 12, on the application of the Republic of Austria.  Following proceedings under s 19 before a magistrate, she was committed to prison to await the determination of the Attorney-General as to her surrender.  On application to the Supreme Court of Queensland to review this decision, it was submitted that the magistrate should have made a determination as to whether she was relevantly an “extraditable person” and that, in doing so, a determination should necessarily have been made as to whether she had been “accused” of having committed the relevant offence, it being submitted that the documents accompanying the extradition request indicated that she had not been “accused” within the meaning of the Act.  Upon dismissal of that application, Kainhofer appealed to a Full Court of the Federal Court which, after examination of the relevant documents, came to the conclusion that the magistrate could not properly have been satisfied that she had been “accused”, with the result that the Court ordered the quashing of the magistrate’s order and her release from custody. 

An appeal to the High Court of Australia was successful, the Court holding that the magistrate in reaching a decision under s 19 was not required to determine whether Kainhofer was an “extraditable person” within s 6.  The reasoning which led to this decision is set out in the following passages from the judgment of the majority (at 538 et seq):-

No person is liable to be taken into custody under the Act unless a magistrate is satisfied, on the basis of the information contained in the affidavit supporting the application for the arrest of that person, that the person is an extraditable person. But the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person.  The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.

...

The question whether a person is accused of having committed an offence in relation to which a warrant for the person's arrest has been issued by an extradition country is addressed by a magistrate under s 12(1) and by the Attorney-General under s 16 in considering whether the person is an extraditable person. The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate. Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19. Nor does sub-s (2)(a) in conjunction with sub-s (3)(a) of s 19 make the accusation of the person whose surrender is sought a condition affecting any power conferred by that section. The s 19 magistrate is neither required nor authorised to determine the issue whether that person is an extraditable person.

The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice.  Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.

The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the ‘supporting documents in relation to the offence’ produced to the magistrate and the description of ‘supporting documents’ in sub-s (3).  ...  The introductory words of sub-s (3)(a) and (b) merely direct the s 19 magistrate to the relevant description to be applied to the supporting documents in the case of the particular extraditable person who is the subject of the s 19 proceedings.  The relevant direction is obtained by the s 19 magistrate by reference to whatever material is produced.  If that material does not include supporting documents that answer one of the categories of documents described in sub-s (3), the requirement of sub- s (2)(a) is not satisfied; if there be supporting documents that answer the description in one of those categories, the requirement of sub-s (2)(a) is satisfied.

In the present case, the only issue for determination under s 19(2)(a) was whether the document produced was a duly authenticated warrant or copy warrant issued by the Republic of Austria for the arrest of the respondent for an extradition offence for which the surrender of the respondent was sought by the Republic of Austria.  That issue did not require a finding as to whether the respondent was a person ‘accused’.

It follows that the Federal Court was in error in considering whether the s 19 magistrate could properly have found that the respondent had been ‘accused’ of any of the four offences in relation to which the magistrate held the respondent to be eligible for surrender.  ...

Toohey J agreed with the reasons of the majority.  He noted (at 541) that in consequence:-

there is little scope for judicial review of the question whether a person is an extraditable person.  Only the magistrate’s decision under s 19 as to eligibility for surrender is expressly reviewable under the Act (s 21).  The decision to issue a provisional arrest warrant under s 12 is not expressed to be reviewable.  Decisions under the Act are included in Sch 1 to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) among those decisions to which the AD(JR) Act does not apply.

Later in his judgment his Honour said (at 541-2):-

It has been said that a feature of the Act is ‘a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion’.  The comment has force.

These observations say nothing as to s 39B of the Judiciary Act 1903 (Cth) which includes in the original jurisdiction of the Federal Court ‘any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth’.  A State magistrate exercising jurisdiction under the Act does not in any event answer the description of an officer of the Commonwealth (Trimbole v Dugan (1984) 3 FCR 324).  In Harris v Attorney-General (Cth) (1994) 52 FCR 386 s 39B was invoked to challenge the issue of a notice by the Attorney-General under s 16(1) of the Act.  The relief sought was declaratory, coupled with an injunction to restrain further action upon the notice.

It is appropriate, also, to refer to portions of the judgment of Gummow J.  His Honour’s reasons accorded with those of the majority.  He referred (at 547) with approval to the following passage from the judgment of the Full Federal Court in Harris v Attorney-General (1994) 52 FCR 386 where it was said:-

The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered.  In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1).  Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19.  Where a person is on remand under s 15 and the Attorney General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender.  If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.

His Honour further said in relation to Harris (at 548):-

It should be noted that in Harris v Attorney-General, the Federal Court entertained an application under s 39B of the Judiciary Act 1903 (Cth) for injunctive relief to restrain the taking of action upon a notice issued under s 16(1).  No such application was made by the respondent at the corresponding stage of the extradition process in the present case.

            (It may also be noted that no such application was made in this case)

Later in his reasons (at 549) his Honour said:-

Accordingly, when dealing with a question as to the sufficiency of supporting materials provided by the extradition country, it is important to ask that question in relation to each of the distinct steps in the extradition process.  Some supporting material may be relevant to one, but not others of those stages.  Thus, the task of the Attorney General under s 22, for example, differs significantly from that of the magistrate under s 19.

His Honour then considered in detail the role of the magistrate under s 19 and concluded (at 554) that:-

... the Full Court fell into error in determining the appeal on the ground that the magistrate could not properly have been satisfied that the supporting documents included a duly authenticated warrant for the arrest of the respondent which disclosed that she was a person "accused" of the offences referred to in the warrant.

Reference may also be made to Papazoglou v Republic of the Philippines (1997) 144 ALR 42, a decision of a Full Court of this Court.  In that case the question arose, inter alia, whether a magistrate acting under s 19 of the Act had power to stay the proceedings on the basis that they constituted an abuse of process.  It was held that the magistrate lacked such a power under the section.  After consideration of the relevant provisions of the Act and of the Treaty in question, the Court said (at pp 60-62):-

It is clear that certain issues relating to extradition applications are reserved exclusively for the consideration of the Attorney-General, rather than a magistrate acting under s.19 (or, for that matter, a court reviewing the magistrate's order under s.21).  For example, in proceedings under s.19 of the Extradition Act, s.11(6) provides that no ‘limitation, condition, qualification or exception’ contained in a bilateral extradition treaty has the effect of requiring or permitting a magistrate to be satisfied of any matter other than those set out in s.19(2).  Thus, should a bilateral treaty create an additional exception to the circumstances in which extradition is required, it is the Attorney-General who is to determine whether the exception applies: see s.22(3)(e).

Similarly, the Attorney-General has power to terminate the extradition process at a number of points.  As DPP v Kainhofer recognises, the Attorney-General's functions are independent of functions performed by magistrates under ss.12 and 19 of the Extradition Act.  Proceedings under s.19 cannot take place unless the Attorney-General issues a s.16 notice.  The Attorney-General is not to issue a notice unless of the opinion (inter alia ) that the person is an ‘extraditable person’ (ss.6, 16(2)(a)(i)) and must not issue the notice if of the opinion that there is an ‘extradition objection’ (ss.7, 16(2)(b)).  The issue of the notice is a matter ultimately for the Attorney-General's discretion (s.16(1)), subject to the opportunity to seek judicial review under s.39B of the Judiciary Act.  Section 17(1) specifically contemplates that a person on remand and in custody under s.15 must be released if the Attorney-General decides not to issue a s.16 notice or if the Attorney-General ‘considers for any other reason that the remand should cease’ (s.17(1)(b)).

...

The most important consideration, in determining whether a magistrate performing functions under s.19 of the Extradition Act has an implied power to stay the proceedings as an abuse of process, is the language used in that section.  The terms of s.19 are very difficult indeed to reconcile with any such implied power.  Section 19(1) provides that, where the four specified preconditions are satisfied, the magistrate ‘shall conduct proceedings to determine whether the person is eligible for surrender’.  The mandatory language is significant.  Moreover, the magistrate is required to conduct the proceedings for the specified purpose and only for that purpose.  Section 19(9) provides that, where the magistrate determines that the person is eligible for surrender to the extradition country, the magistrate ‘shall...order’ that the person be committed to prison to await surrender or, alternatively, release pursuant to an order made by the Attorney-General.  Section 19(10) provides that where the magistrate determines that the person is not eligible for surrender the magistrate must order that the person be released.  Clearly, s.19 contemplates only two possible outcomes of the proceedings the magistrate is required to conduct.  The first is a determination that the person is eligible for surrender; the second is that the person is not eligible for surrender.  This construction of s.19 is confirmed by s.15(2), which requires a person to be remanded by a magistrate in custody or on bail ‘for such period or periods as may be necessary for proceedings under section 18 [which deals with consent to surrender] or 19, or both, to be conducted’.

It is true, as was pointed out in argument, that s.19(2) of the Extradition Act says that, for the purposes of s.19(1), a person is ‘only eligible for surrender...if’ four specified conditions are satisfied.  Section 19(2) does not use the formula ‘if and only if’.  The language of s.19(2) is arguably consistent with factors other than the four specified matters being taken into account in determining whether a person is eligible for surrender, although this does not seem to have been the view taken in DPP v Kainhofer, at 537, 539.  Indeed, the carefully defined administrative sequence referred to in DPP v Kainhofer, at 538, whereby different repositories exercise discrete powers, supports the view that the function of a magistrate under s.19 is intended to be self-contained and limited.

...

...  Whether the magistrate has an implied power to terminate the proceedings for an abuse of process must depend on the legislative intention, as revealed by the language and structure of the Extradition Act.  ... there is no room in the face of the statutory obligations contained in s.19, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided in the section itself.

THE PRESENT CASE

Could the magistrate, in the present case, have held that the respondent was not eligible for surrender on the basis that there had been a breach on the part of the appellant of the requirements of Article 9(2)(a) of the Treaty?  The answer depends upon whether this was a matter that the magistrate could properly take into account when exercising the administrative powers conferred by s 19 of the Act.  Obviously, in arriving at the answer, it is necessary to take into account the restrictions imposed by s 11(6) of the Act to which reference has already been made.  It may be accepted that the jurisdictional requirements of s 19(1) were satisfied in the present case with the result that the magistrate was required to conduct proceedings to determine whether the respondent was “eligible for surrender in relation to the extradition offence” for which his surrender was sought.  Consequently, the magistrate was obliged to determine whether the requirements of s 19(2)(a)-(d) had been made out.

There was no issue in relation to s 19(2)(d), there being no question of any relevant extradition objection.  The “dual criminality” requirement of s 19(2)(c) was established to the magistrate’s satisfaction, this determination being a subject of the notice of contention in this appeal.

As to the requirements of s 19(2)(a) amplified in s 19(3)(a) and (c)(i) and (ii), there was no issue before the magistrate nor the learned primary judge.  A duly authenticated warrant in compliance with s 19(3)(a) and duly authenticated statements in accordance with ss 19(3)(c)(i) and (ii) were produced to the magistrate.  This being so, we are satisfied that the respondent became “eligible for surrender”, unless the Act or the Treaty or both required the production to the magistrate of other documents.  Before considering the provisions of the Act and the Treaty which might arguably relate to the production of other documents, it is convenient to state our views as to the requirements of Article 9(2)(a) of the Treaty. 

This Article requires that the request for extradition “be accompanied by all available information concerning the identity and nationality of the person claimed”.  It is clear that the request is made by the State seeking extradition to the State from which extradition is sought.  Provision is made by Article 11 for the Requested State to seek additional information, if it considers that the information furnished is not sufficient.  Having regard to the reasoning in Kainhofer and Papazoglou which stresses the importance of ascertaining at what time an obligation arises under the Act and upon whom it is imposed, we are satisfied that it is for the Requested State, no doubt in the person of the Attorney-General, to consider the question whether “all available information” has been supplied and whether further information should be requested.  Although s 16 does not expressly require that the Attorney-General be satisfied that he or she has received “all available information concerning the identity and nationality of the person claimed” before giving the notice under the section, it is to be noted that the notice is one given in the discretion of the Attorney-General.  No doubt if the circumstances were to arouse the concern of the Attorney-General as to whether he or she had been supplied with the requisite information, this would be a matter affecting the exercise of the discretion.  In our view, the question that might arise under Article 9(2)(a) is one which is committed to the Attorney-General, as being a matter which could affect the exercise of discretion under s 16 or under s 22 of the Act.  His or her determination in this regard is not one that can be reviewed by the magistrate, although it may be susceptible to review under s 39B of the Judiciary Act, as indicated in the passages cited earlier.

The question remains, however, whether the magistrate, in the absence of a power to review, has nevertheless imposed upon him or her a duty to consider the Article 9(2)(a) issue as a primary obligation, as a  result of the wording of s 19(2)(b) and associated provisions of the Act and the Treaty.  We turn to those considerations now.

As has been observed, s 19(2)(b) speaks of production to the magistrate of any other documents required as a result of the Act applying to the relevant extradition country “subject to any limitations, conditions, exceptions or qualifications” that so require.  It is clear that this subsection refers to any requirement as to production of documents imposed by the relevant Treaty.  It is also to be observed that the “production” referred to is production to the magistrate, not to the Attorney-General or any other official.

Article 10 of the Treaty, which is set out above, requires that documents which have accompanied a request in accordance with Article 9 “shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the Requested State”.  Reference may also be made to s 19(6) of the Act which might conceivably widen the range of documents that may be put before a magistrate by the extradition country.

In Todhunter v United States of America (1995) 57 FCR 70, a Full Court of this Court considered a Treaty provision similar to that of Article 10(1).  It is convenient to set out the whole of the passage in which the Court considered the effect of the relevant Treaty provisions upon the reception of documents by the magistrate pursuant to s 19(2)(b) of the Act.  The Court said (at 86):-

The question thus arises whether, as to those documents identified in paras. (2) and (3) of Article XI but which are not ‘supporting documents’ so as to attract para. 19 (2) (a) of the Act, para. 19 (2) (b) has any application.

We set out below the text of paras. (2) and (3) of Article XI highlighting those portions which appear to duplicate or at least overlap with the requirements flowing from the definition of ‘supporting documents’ in sub-s. 19 (3) of the Act:

            ‘(2)  The request for extradition shall be supported by:

                  (a)  documents, statements, or other types of information which describe the identity and probable location of the person sought;

                  (b)  a description of the conduct constituting the offence;

                  (c)  a statement of the law describing the essential elements of the offence for which extradition is requested; and

                  (d)  a statement of the law describing the punishment for the offence and the law relating to limitation of legal proceedings.

            (3)  A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:

                  (a)  a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;

                  (b)  a copy of the charging document, if any; and

                  (c)  a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.’

It may be that a requirement of production to the magistrate of all these documents is implicit in para. (5) of Article XI. We referred to para. (5) earlier in these reasons.  It states, so far as relevant, that if the documents meet certain criteria:

            ‘The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings...’

On its face, this refers to reception of the documents, if tendered, as evidence of their contents.  The same subject, of admission into evidence, is dealt with in sub-ss. 19 (6), (7) of the Act.  But read literally, para. (5) of Article XI is not mandatory in the sense of requiring production to the magistrate.

However, it has been said that a provision such as para. (5) should not receive an overly technical construction; see the authorities collected by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR at 401-402.  We are prepared to proceed on the footing that the requirement of production to the magistrate is implicit, so that to those documents to which para. 19 (2) (a) of the Act does not apply, para. (b) thereof does apply.

It may well be, therefore, that in the present proceedings, documents which accompanied the relevant request for extradition but which fell outside the definition of “supporting documents” in s 19 were material appropriate for the magistrate’s consideration in relation to his determination whether the respondent was eligible for surrender.  However, this fact does not assist a submission that the magistrate was obliged to consider whether “all available information” as to identity and nationality had been provided to the Attorney-General.  The provisions apply only to documents which in fact accompanied the request.  It is agreed in the present case that the “identification documents” did not accompany the request. 

In our view, nothing in the Act or Treaty required the magistrate to consider the question whether “all available information, etc” had “accompanied” the request.  Accordingly, although the magistrate did consider this matter he had no jurisdiction to do so.  It follows that his finding in that regard was of no relevance to his inquiry and was not a matter which could be the subject of review by the learned primary judge under s 21 of the Act.  Accordingly, the decision of the primary judge in this regard must be set aside.

A further question was the subject of written submissions after the argument in the case, namely whether the learned magistrate was under any obligation to determine whether the respondent was in fact the person named in the warrant pursuant to which he was arrested, remanded, and brought before him.  In our view, this was not a matter that the magistrate was required to determine.  As appears from the authorities cited, it had already been determined at earlier stages in the procedures that the respondent was an “extraditable person”.  This would necessarily have involved a finding that he was the person named in the warrant.  Although the s 12 warrant was issued on affidavit evidence only, the respondent, as a result of his arrest on that warrant, was brought before a magistrate for the purpose of his being dealt with under s 15 of the Act, that is by being remanded on bail or in custody pending the hearing under s 19 or his otherwise being dealt with as a result of the exercise of discretion by the Attorney-General pursuant to ss 16 and 17 of the Act.  The identity of the respondent with the person named in the overseas warrant and the s 12 warrant would necessarily have been a matter for the magistrate exercising powers under s 15.  In our view, there was no requirement imposed upon the s 19 magistrate to consider that question afresh.  That is not to say that he would not have been obliged to consider that question if the respondent had specifically stated that he denied that he was the person whose extradition was sought.  In such circumstances, the requirements of natural justice might well have necessitated a determination by the magistrate of that issue.  However, this did not arise in the present case and we say no more about it.

We turn, then, to the issues raised by the respondent’s notice of contention.

THE NOTICE OF CONTENTION

The respondent raised five matters of fact or law in his notice of contention, stating that each was wrongly found against him by the learned primary judge:-

1.      Whether the magistrate was entitled to infer that the respondent was the person referred to in the extradition request

2.      Whether the request contained an adequate description of each offence

3.      Whether the request was accompanied by a statement of the acts or omissions alleged in each offence

4.      Whether the unsuccessful 1991 request precluded the making of another request

5.      Whether the conduct would have constituted an extradition offence if it had been committed in Tasmania

Contention 1:  The Person

It is our view, as already stated, that Kainhofer must be taken to have decided that it is not for the section 19 magistrate to determine this question but for the Attorney-General when he determines that the respondent is an extraditable person (see 538-9).  Furthermore, the respondent’s counsel conceded before the primary Judge that “the applicant admits he is called George Parker.  The applicant also acknowledges that he has lawfully changed his name in Australia on three occasions and has lawfully obtained Australian passports in those names and to an extent those concessions of course coincide with the information contained in the documents in the extradition request”.  In any event the magistrate had photographs of the respondent in his papers and was well able to assess for himself whether the person sought by those photographs was or was likely to be the respondent:  In re Parisot [1889] 5 TLR 344 at 345; Reg v Governor of Pentonville Prison ex parte Voets [1986] WLR 470 at 474; McDonald v Attorney-General [1980] 24 SASR 294 at 301.

Contentions 2 & 3:  The description of the offences and the overt acts

It is convenient to deal with these two contentions together.  As has been seen, Article 9(3) of the Treaty requires that a “description” of each alleged offence and a “statement of the acts or omissions alleged” in respect of each offence be given.  The arrest warrant alleges seven offences.  The first is that in November 1990 the respondent procured one Eleonora Kominik in Vienna to carry prohibited narcotics from Bangkok to Sydney by obtaining travel documents for her, paying her hotel expenses, and giving her a fee of 5000 Austrian schillings.  Thereafter in Bangkok, Kominik was given some 320 grams of heroin with instructions to give it to two men in Sydney.  However, she decided not to proceed with her part of the arrangement.  She left the drug in her hotel room and travelled to Melbourne where she informed local police what had occurred.  As a consequence, Thai police found and took possession of the heroin.  The respondent found Kominik in Melbourne and telephoned her for the narcotics.

The second alleged offence is that in December 1990 the respondent recruited Elisabeth Wrosz to carry some heroin from Bangkok to Sydney.  He assisted her to obtain an Australian visa on 7 December 1990 and booked her a flight ticket from Frankfurt with a stopover in Bangkok and a hotel room in Bangkok from 6-9 February 1991.  He paid for both the travel and hotel expenses, drove her to Frankfurt airport on 5 February and gave her $US1000 in part payment of her fee.  In Bangkok an accomplice of the respondent gave Wrosz 5 boxes containing about 318 grams of heroin.  As she could only carry 4 boxes on her body, she took only 254 grams to Sydney which she gave to another accomplice in return for the balance of her $US2000 fee.  The goods were sold in Sydney and the respondent received a share of the proceeds.

The third allegation is that in February 1991 another accomplice of the respondent recruited a drug courier named Alfred Schwark and took him to Frankfurt airport where he was met by the respondent and given instructions on his duties.  Pursuant to these instructions, Schwark met another accomplice in Bangkok on 11 February from whom he received $US500 and a pair of sports shoes containing 650 grams of heroin.  He thereafter travelled to Sydney via Hong Kong, leaving the narcotic in the toilet of the plane as instructed.  After arrival in Sydney, Schwark was given the balance of his fee of $A4000.  The narcotics were recovered from the aircraft toilet by another member of the group and sold.  The respondent is alleged to have received a share of the proceeds.

The fourth offence involved two couriers recruited in Germany by the respondent and another man to carry heroin from Bangkok to Sydney.  The procedure was similar.  The respondent and the accomplice supplied tickets to the couriers and took them to Frankfurt airport on 14 February 1991.  In Bangkok they were given 637 grams of heroin which they delivered to the same man in Sydney as used by the other couriers.  He gave them $A7000.  They also had a free vacation in the respondent’s house in Hobart.  Again the respondent shared in the proceeds of sale of the heroin.

The fifth offence involved a courier named Kerstin Naumann recruited by the respondent who again took her to Frankfurt airport.  The respondent paid only part of her own travel expenses, the remainder being paid by Naumann, and he gave her $US500 as an advance on a $US5000 fee.  In Bangkok Naumann was asked to smuggle 4 boxes into Sydney containing about 254 grams of heroin but she agreed to take only 2 boxes containing about 127 grams.  In Sydney she handed over the drug to another accomplice and was paid $A1000.  Apparently she has never received the balance promised, but the heroin was sold in Australia and the respondent shared in the proceeds.

The sixth offence is similar again.  This time the courier recruited by the respondent, Eva Dampc, was given $US500 at Frankfurt airport, picked up 3 boxes containing 191 grams of heroin in Bangkok and delivered them to the Sydney contact from whom she received the balance of her fee.  Again the goods were sold and the respondent received his share of the proceeds.

The seventh alleged offence involves two couriers, the same Elisabeth Wrosz as involved in the second offence, and Adam Dampc whose journeys to Australia were paid for by the respondent.  Dampc was taken to Frankfurt airport on 3 May 1991 and given DM800 as a cash advance on $US5000.  He then met one of the scheme participants in Bangkok on 2 June 1991 and was told that he would be given a pair of sports shoes containing narcotics.  Wrosz was due to leave Frankfurt on 3 June but on 2 June one of the participants was arrested in Bangkok by Thai police with 1635 grams of heroin.  Dampc was therefore instructed to travel on to Sydney with the sports shoes, but no drugs, to test out the Sydney airport police/customs reactions to him.  On 5 June 1991 the respondent booked another ticket for Wrosz and paid for it on the following day.  After he learned that his accomplices in Bangkok could not obtain any heroin at that time, Wrosz’s trip was again cancelled.

All of the proposed witnesses are named in the arrest warrant, as are the various statutory provisions relied on.  Other relevant information is also given.  There can be no doubt that the magistrate was fully entitled to find that the extradition request, which included the arrest warrant, fully complied with the requirements of Article 9(3).  The learned primary judge was perfectly correct in so confirming.

Contention 4:  The effect of the 1991 extradition request

The argument put to the primary judge and to this Court was that because Australia had not considered the information furnished in support of the 1991 request sufficient, Article 11 of the Treaty did not apply to the current request.  This submission is fundamentally misconceived.  An extradition proceeding is not a criminal trial, and the dismissal of the proceeding is not equivalent to an acquittal.  Thus concepts such as autrefois acquit and res judicata have no application.

Moreover, no question of abuse of process arises.  As expressly pointed out in Papazoglou at 62-3 and in Wiest v DPP [1988] 23 FCR 472 at 486-7 and 527-8, a determination that a person is not eligible for surrender does not finally decide that issue and a fresh application can be brought.

Contention 5:  Dual criminality or Equivalent criminal conduct

Section 19(2)(c) of the Act provides that before a person may be surrendered, the magistrate must be:-

(c)                                            . . . 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,

The magistrate’s view, agreed in by the primary judge, was that if the alleged activities of the respondent in Germany had been committed in Tasmania, they would be punishable under Tasmanian or Commonwealth law by imprisonment of not less than 12 months.  He cited as examples the Poisons Act 1971 (Tas) section 47 and the Customs Act 1901 (Cth) section 233B.  The relevant time for consideration of the position was August 1996.  The acts relied upon are:-

(a)    procuring people in Germany and Austria to travel to Bangkok to pick up drugs and transport them to Sydney

(b)   arranging and paying the costs of visas, flight tickets and hotel reservations for the couriers

(c)    driving the people to or meeting them at Frankfurt airport

(d)   paying the people for their transportation of the drugs

(e)    organising, procuring or being an accessory to the smuggling of illegal narcotics into Australia

(f)     receiving part of the proceeds of the sale of the drugs

The primary judge held that the respondent’s conduct had to be assessed in all the circumstances and with regard to his intentions.  No one set of activities should be looked at in isolation.  His Honour held that the magistrate’s task was “to determine whether or not the (respondent) would have committed an offence under Australian (or Tasmanian) law had he recruited, in Tasmania, couriers with the intent that they travel overseas, acquire heroin, and import it into Australia”.

The respondent submitted that the correct question was whether procuring a person in Tasmania to travel to another country for the purpose of acquiring drugs for transportation to a third country (ie other than Australia) would constitute an extradition offence.  This is because of the extraterritorial effect of the German Criminal Code which ascribes no legal significance to the location where any part of the actual offence takes place.  The respondent argued that the fact that the drugs were imported into Australia is irrelevant under German law and that the arrest warrant may have omitted the destination of the drugs altogether.  He said that as no Commonwealth or Tasmanian law equates to the relevant provisions of the German Code nor had any extraterritorial effects, there was no Australian offence for which he could be tried.  If there were, he should be tried here not extradited to Germany for trial.

These propositions are misconceived.  The offences alleged here involve the recruitment, organisation and payment of couriers in Germany to transport large quantities of heroin from Thailand to Australia, not somewhere other than Australia, for sale.  It is to Australia that the heroin was being brought.  If such activities were carried out in Tasmania in August 1996, they would be punishable by more than 12 months imprisonment.

Each of the contentions in the notice of contention fails.

Accordingly we make the following orders:-

1.      The appeal is allowed.

2.      The orders of the primary judge made on 10 July 1997 are set aside.

3.      In lieu thereof, the orders of the magistrate made on 14 May 1997 are confirmed.

4.      The respondent is to pay the appellant’s costs of the appeal and of the proceeding before the primary judge.

Associate:

Dated:              2 July 1998