FEDERAL COURT OF AUSTRALIA

De Bruyn v Republic of South Africa [1999] FCA 1344

EXTRADITION – extradition to South Africa – principles governing whether appellant eligible for surrender for an extradition offence – “conduct constituting the offence” – “supporting documents” – whether draft indictment is “a duly authenticated statement in writing setting out the conduct constituting the offence” – whether conduct in South Africa alleged in draft indictment would constitute an offence in New South Wales – relationship between ss 19(2)(c) and 19(3)(c)(ii) of the Extradition Act 1988.

Extradition Act 1988 (Cth) ss 3, 7, 10(2), 11, 19 and 21

Extradition (Republic of South Africa) Regulations

Crimes Act 1900 (NSW) ss 178BA, 178BB and 179

Extradition (Foreign States) Amendment Act 1985 (Cth)

Extradition (Foreign States) Act 1966 (Cth) s 17(6)

Extradition (Commonwealth Countries) Act 1966 (Cth)

Zoeller v Republic of Germany (1989) 23 FCR 282 considered and applied

United States of America v Holt (1994) 49 FCR 501 cited

Unkel v DPP (1990) 95 ALR 44 referred to

Wiest v DPP (1988) 23 FCR 472 referred to

Cuthbert v Robarts, Lubbock & Co [1909] 2 Ch 226 cited

Prabowo v Republic of Indonesia (1955) 61 FCR 258 considered

Government of Canada v Aronson [1990] 1 AC 579 referred to

R v M [1980] 2 NSWLR 195 distinguished

Croton v The Queen (1967) 117 CLR 326 referred to

R v Love (1989) 17 NSWLR 608 referred to

R v Preddy [1996] AC 815 referred to

Parsons v The Queen (1999) 160 ALR 531 referred to

Andrews v The Queen (1968) 126 CLR 198 cited

R v Charles [1976] 1 WLR 248 referred to

R v Hamilton (1990) 92 Cr App R 54 referred to

R v Capewell [1995] 2 QdR 64 referred to

Linhart v Elms (1988) 81 ALR 557 considered

E P Aughterson, Extradition Australian Law and Procedure, Law Book Company, 1995

JACOB JOHANNES DE BRUYN v REPUBLIC OF SOUTH AFRICA & ANOR

N 394 OF 1999

HILL, HELY & GYLES JJ

29 SEPTEMBER 1999

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL & HELY JJ:

1                     A bundle of documents was tendered before a magistrate conducting an enquiry under s 19 of the Extradition Act 1988 (“the Act”).  The contents of the bundle were identified by an affidavit sworn by the Attorney-General of the Witwatersand Local Division of the High Court of South Africa.  The italicised description of certain of the documents in par 2 below is taken from that affidavit.  The magistrate found that the documents comprising the bundle were “duly authenticated” in terms of s 19(7) of the Act.  That finding was confirmed by the trial judge on a review, under s 21 of the Act, of the magistrate’s orders.  There has been no challenge in this appeal to that finding.

2                     The documents included:

·                    A copy of the indictment ... setting out the charges [South Africa] will prefer against [the appellant] should he stand his trial in South Africa (“the draft indictment”).

·                    Sworn statements of witnesses and documentary exhibits in which the facts of this matter are set out and which clearly indicate that [the appellant] has committed the crimes of fraud or alternatively theft (“the statements”).

3                     If the statements were reduced to their essentials, and synthesised into a single document, they could be taken as propounding the following matters (so far as the appellant’s alleged criminality is concerned):

·                    The appellant, trading as De Bruyn Jewellers maintained an account at the Carlton Centre Branch of the First National Bank.  He was the only person authorised to operate that account.  The account was opened on 4 September 1990.

·                    The opening balance of the account on 8 October 1992 was R 1,730.14.

·                    On 8 October 1992 a forged Inter Bank Reconciliation (“IBR”) was processed which purported to authorise a credit of R 1,200,000 to the appellant’s account, with a corresponding debit to the suspense “call” account of the Milner Park Branch of the Bank.

·                    On 8 October 1992 the appellant’s account at the Carlton Centre Branch of the Bank was credited with R 1,200,000.

·                    On 9 October 1992 the appellant requested that two cheques for R 283,000 and R 1,190,000 in favour of Rand Refinery Ltd be guaranteed.  The assistant manager of the Bank guaranteed payment of those cheques on the faith of “funds in a call account in our books”, in the case of the smaller cheque, and “against the deposit allegedly made at our Milner Park Branch” in respect of the larger.

·                    “Given [the appellant’s] lengthy and impeccable connection [the assistant manager] had no reason to doubt his integrity in this instance.  This was seen to be in the usual course of his business whereby he would from time to time purchase large quantities of gold for jewellery manufacture and subsequent export to the Far East.”

·                    Later on 9 October 1992 the Bank discovered that the apparent credit to the appellant’s account resulted from a forged IBR.  The credit to the appellant’s account was reversed, but the Bank was required to pay on the cheques which it had guaranteed.

·                    Those cheques were drawn by the appellant and applied in part payment for gold to the value of R 1,678,954.86 which he purchased from Rand Refinery Ltd on 9 October 1992.

·                    As a result, the Bank suffered loss in a sum roughly equivalent to the fraudulent credit.

4                     The first matter of which the magistrate is required to be satisfied, in order to determine whether the appellant is eligible for surrender in relation to an extradition offence, is whether the “supporting documents” in relation to the offence have been produced to the magistrate.  Insofar as is presently relevant the “supporting documents” are:

“a duly authenticated statement in writing setting out the conduct constituting the offence.”

(s 19(3)(c)(ii))

5                     Then, in its application to the facts of the present case, s 19(2)(c) requires the magistrate to be satisfied that, if the conduct of the appellant constituting the offence in relation to South Africa, or equivalent conduct, had taken place in New South Wales, that conduct, or equivalent conduct, would have constituted an offence under s 178BA, 178BB or 179 of the Crimes Act 1900 (NSW).

6                     Section 10(2) provides:

“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.”

Section 19(5) prevents the appellant adducing or the magistrate receiving evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.

7                     The importance of identifying the “conduct constituting the offence” is readily apparent.  The production of a written statement setting out that conduct is an essential step in the extradition process: s 19(2)(a).  The allegation that the person has engaged in that conduct cannot be contraverted by evidence: s 19(5).  The magistrate is required to determine whether that conduct is an offence under Australian law: s 19(2)(c); whilst s 19(2)(c) does not state, in terms, that the s 19(2)(c) test is to be applied to the s 19(3)(c)(ii) statement, it is implicit in the section that this is so.  That was the view of the Full Court in Zoeller v Republic of Germany (1989) 23 FCR 282, 300, endorsed by a subsequent decision of a Full Court in United States of America v Holt (1994) 49 FCR 501.

8                     As Pincus J observed in Unkel v DPP (1990) 95 ALR 44 the expression “the conduct of the person constituting the offence” might be ambiguous.  It could mean simply the definition of the offence, or on the other hand, the acts or omissions of the person sought to be extradited, by virtue of which the offence is alleged to have been committed.  In his Honour’s view s 10(2) makes it clear that the latter is intended.

9                     That may disguise another potential ambiguity, namely whether the reference to the acts or omissions by virtue of which the offence has been committed suggests the exclusion of acts or omissions which are not instrumental to the commission of the offence: see Aughterson, Extradition Australian Law and Procedure, p 69.

10                  That is not the approach adopted in Zoeller.  At p 300 the Full Court adverted to the fact that the magistrate is not an expert in foreign law, and cannot be expected to determine the minimum facts necessary to constitute the foreign crime.  If a statement of facts is provided which goes beyond the minimum, the magistrate may have regard to all of the facts contained in the statement in order to determine whether those facts would constitute an offence of the requisite character under Australian law.  That approach has been criticised: see Aughtenson (supra); The Laws of Australia 11.10 [12].  The resolution of that debate would not, however, assist in the resolution of this appeal.

11                  In Wiest v DPP (1988) 23 FCR 472, 519 Gummow J said that the phrase “acts or omissions” refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions.  That was the view adopted by the Full Court in Zoeller at p 294, although it was made clear at 297 that what is required 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.

12                  The differing views expressed by the magistrate and by the trial judge as to whether the appellant’s conduct, if that conduct or equivalent conduct had occurred in New South Wales, would have constituted offences under the sections of the Crimes Act to which we have referred, is referable, at least in substantial part, to a difference of view as to what was “the conduct constituting the offence”.

13                  The magistrate focused on the statements.  [It should be remembered that since the coming into effect on 21 May 1997 of an amendment by Statutory Rules 1997 No 108 to the Extradition (Republic of South Africa) Regulations, South Africa has not been required to satisfy the test of a prima facie case which must be met by some countries.]  His Worship extracted from those statements propositions similar to those set forth in par 3 above.  On that basis his Worship found that there was only circumstantial evidence of fraud based on the timing of the various transactions, there being no direct evidence of knowledge in the appellant that the credit to his account was fraudulently procured.  Nor was there any evidence of the terms of the communication between the appellant and the assistant Bank Manager which led to the latter guaranteeing payment of the cheques in question.

14                  In his Worship’s view the “totality of the documentation” did not indicate directly any deception or dishonesty on the part of the appellant.  There was no specific indication that the appellant made any of the representations referred to in the draft indictment.

15                  In essence the magistrate proceeded upon the basis that the matters alleged in the draft indictment could not rise above the factual material contained in the statements upon which the draft indictment was grounded.  On that basis he was not satisfied that the conduct would have been criminal if it occurred in New South Wales.  If his Worship’s approach was the right one, then the conclusion to which he came was at least arguably correct.  In particular, the acts or omissions particularised in the statements may not, without more, support the making of the representations referred to in the draft indictment: cf Cuthbert v Robarts, Lubbock & Co [1909] 2 Ch 226, 233.

16                  In contrast, the trial judge proceeded upon the basis that it is the draft indictment which satisfied the s 19(3)(c)(ii) requirement, and to which the s 19(2)(c) test is to be applied.  The application of that test to the acts or omissions of the appellant as alleged in the indictment leads to the conclusion that the test is satisfied.  The fact that additional material was provided in the form of the statements was irrelevant, and was perhaps explicable upon the basis that it sought to satisfy the test of a prima facie case which must be met by some countries, and which South Africa was once required to meet.

17                  We gave the appellant leave to amend his Notice of Appeal so as to include as an additional ground, a contention that the trial judge was in error in concluding that for the purposes of s 19(2)(c), regard was to be had to the terms of the draft indictment alone, and that his Honour should have had regard, as well, to the statements in order to determine whether the requirements of s 19(2)(c) have been satisfied.

18                  The identification of the writing said to satisfy the requirements of s 19(3)(c)(ii) is, in a sense, a question of fact.  If the only document which South Africa produced which was capable of satisfying that description was the draft indictment, then it would have been sufficient for that purpose.  In opening his case before the magistrate, counsel for South Africa identified the draft indictment as being the document upon which South Africa relied by way of satisfaction of s 19(3)(c)(ii).  The fact that South Africa proffered the document on that basis is a matter relevant to this issue.

19                  There is a distinction, as adverted to by the Full Court in Zoeller, between a specification of the acts and omissions of the appellant by which the offence is said to be constituted, and the evidence by which those acts or omissions are to be established.  The draft indictment naturally answers the first of those descriptions.  The statements do not.  They do, however, naturally answer the second of those descriptions.

20                  But even if the result were otherwise, that would not advantage the appellant.  The amended ground of appeal accepts that if the statements are to be taken into account, so must the draft indictment.  On that basis the statements would operate in aid of the draft indictment, but not in derogation of it, particularly having regard to s 19(5).  Accordingly, this challenge to the decision of the trial judge fails.

21                  The appellant presented an alternative argument that if the s 19(2)(c) test was to be applied to the draft indictment, the trial judge erred in concluding that the test was satisfied.  There is no substance in this argument.

22                  The argument pays insufficient regard to the contents of the draft indictment.  The draft indictment alleges that the appellant knew of the fraudulent IBR transaction, and that with intent to defraud the appellant made specified representations in relation to that transaction which he knew to be false.  Those allegations satisfy the mental elements of the offences under ss 178BA, 178BB and 179.  Then it is said that there is no act of the appellant which brought about the fraudulent IBR transaction.  That may be so, but the draft indictment alleges, as we have indicated, that the appellant, with intent to defraud, made representations to the Bank which he knew to be false.  If established, that would be sufficient to satisfy the actus reus in ss 178BA , 178BB and 179.

23                  The appeal should be dismissed with costs.

24                  In view of that conclusion, it is not necessary for us to determine South Africa’s motion that the appeal should be dismissed by reason of an alleged failure on the part of the appellant to comply with orders 8 and 9 made by Burchett J on 28 April 1999.

Associate:

Dated:              29 September 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GYLES J:

25                  I have had the advantage of reading the draft reasons for judgment of Hill and Hely JJ.  Their Honours’ lucid analysis of the facts and the issues enables me to quickly identify where I part company with them. 

26                  In my opinion:

(a)                the statements and documentary evidence are included in the material put forward by the Republic of South Africa (“South Africa”) as satisfying the requirements of s 19(3)(c)(ii) of the Extradition Act 1988 (Cth) (“the Act”);

(b)               the draft indictment is based upon, and only upon, the conduct disclosed by those statements and documentary evidence;

(c)        it is arguable that no act or omission of the appellant is disclosed which could be said to constitute a misrepresentation of the kind necessary to found any of the New South Wales crimes which were suggested for consideration;  and

(d)       if that argument is correct, I cannot accept that if an ingredient necessary to find that the conduct constituted an extradition offence in New South Wales, as required by s 19(2)(c), is missing from the conduct disclosed by the statements and evidence, the deficiency can be supplied by a bare allegation of the missing ingredient in the draft indictment.

27                  As I differ from Hill and Hely JJ and from the judge below, I shall express my reasons for coming to these conclusions somewhat more elaborately than might be necessary.  Whilst everything must follow from the form and content of the documents tendered in evidence, to which I shall return, it is necessary to approach them with a proper appreciation of the nature of the proceedings, and the purpose for which the supporting documents are required. 

28                  The statute affects the liberty of the subject in a drastic fashion – the consequences are far more serious than being charged with a crime in Australia.  Principles which are applicable to this case (where it might be thought the appellant has few merits) are equally applicable to the case of a long-standing Australian citizen with an impeccable record.  The questions which arise under this statute cannot be dealt with as though they are ordinary commercial or administrative law issues.  Whilst they have no doubt to be considered in a practical way without being overzealous in discerning deficiencies (Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294), doubts or ambiguities of fact or law should not be resolved in favour of the country seeking extradition.  The applicant must make its case.  This has particular force in circumstances where the statute permits no contradiction (s 19(5)), and where extradition objections are extremely limited in nature with very little application to ordinary law enforcement (s 7).

29                  This points to the necessity for the applicant to clearly establish the statutory requirements.  So much was recognised by the judge below in dealing with authentication of the supporting documents (see para 16), where his Honour referred to an illuminating passage from the judgment of Hill J in Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-1, which was in the following terms:

“I might say that if this seems to be an overly technical approach, then so be it.  Extradition is a very serious matter and involves the liberty of the subject.  Thus strict compliance with the formalities prescribed by Parliament will be essential.  It is not as if it would have been difficult to comply in the present case with s 19(7).  All that needed to have happened was that a translator give evidence on oath as to what the seal purported to be.  Once that evidence was given the prerequisites of s 19(7) would have been complied with.  What was said by Brennan J in Re Bolton;  Ex parte Beane (1987) 162 CLR 514 at 523, although in the context of the construction of extradition laws may be adapted in support of the need for strict compliance here:

‘The law of this country is very jealous of any infringement of personal liberty (Cox v Hakes (1890) 15 App Cas 506 at 527) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right …  If a statute is to be construed as making a lawful resident of this country liable to arrest and surrender in custody to a foreign country even though no breach of any law has been committed in this country, no tribunal in this country has jurisdiction to try that person for any breach of law committed elsewhere and no court of this country can ensure that he is brought to trial in the country to which he is surrendered, it is reasonable to expect that Parliament will express that intention with unmistakable clarity.’

It is reasonable to expect that a country seeking to rely upon Australian law to obtain the extradition of a person otherwise lawfully in Australia will comply strictly with the terms of the Act and in particular those relating to authentication.  As the Republic of Indonesia has not done so in the present case, the consequence must be that the order of the magistrate be set aside.”

See also Government of Canada v Aronson [1990] 1 AC 579, per Lord Bridge at 590B and Lord Lowry at 618F.

30                  The evident purpose of the statement pursuant to s 19(3)(c)(ii) is to enable the person whose extradition is sought, and the magistrate, to determine whether the requirements of s 19(2)(c) are satisfied, that is, whether the conduct said to constitute the South African crime would have constituted an extradition offence if it took place in New South Wales. 

31                  This objective needs to be borne in mind when considering what is meant by the statement that the phrase “the acts or omissions” refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions.  This statement had its genesis in the judgment of Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519 and was adopted by the Full Court in Zoeller (supra) at 294.  It was influential in the reasoning of the judge below in the present case.

32                  This statement is self-evidently correct.  In the first place, what is required by s 19(3)(c)(ii) is a duly authenticated statement in writing, not the provision of evidence such as is contemplated by s 11.  As I explain later, I have no difficulty in regarding a series of statements as complying with the provision, although those statements might be regarded as statements of evidence, provided that the relevant acts or omissions, or both, are identified. In the second place, the words of s 19(3)(c)(ii), as interpreted by reference to s 10(2), require the statement to set out the acts or omissions, or both, by virtue of which the offence is alleged to have been committed – no more and no less is required or permitted.  To authorise a s 19(3)(c)(ii) statement which does not descend to the actual conduct alleged to constitute the offence, but is limited to a generalised abstraction from underlying conduct which is not particularised, would, in my opinion, be to put an impermissible gloss upon the plain words of the statute, and reduce the content of the section to an empty formality.  Having read the authorities relied upon by Gummow J in Wiest (supra), and considering what material was actually taken into account in Weist and Zoeller, I cannot read what his Honour said in that way.

33                  The supporting documents called for by s 19(3) are not framed in order to further a policy of making extradition easier than, for example, if documents are provided pursuant to s 19(2)(b) as well as s 19(2)(a).  For the purposes of s 19(2)(c), the magistrate must identify the conduct and then apply the same test.  Indeed, there is every reason to conclude that there is a particular need for precision in circumstances where no documents are to be provided pursuant to s 19(2)(b).

34                  In my opinion, this is clear as a matter of construction of s 19, but, if there be any doubt, the same result flows from understanding the history of these provisions, which is traced in part in Zoeller (at 297-300).  It perhaps does not appear clearly from that history that the description of conduct in s 19(3)(c)(ii) is virtually identical with that which has applied since 1966.  It also seems to be assumed in that history that it was the enactment of the 1988 Act which made it no longer necessary for there to be a proceeding along the lines of a committal, subject to the provisions of s 11.  In point of fact, that change was first made in 1985, when the Extradition (Foreign States) Amendment Act 1985 (Cth) was passed, by which provisions virtually indistinguishable from the present were substituted in the Extradition (Foreign States) Act 1966 (Cth).  A similar amendment was not made to the Extradition (Commonwealth Countries) Act 1966 (Cth), although there were other significant amendments made to that act at that time.  However, the amendments to each act prohibited the adducing of evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person was requested.  The amendments to each act were introduced at the same time.  It appears from the 1985 second reading speech that the amendments to the Extradition (Commonwealth Countries) Act 1966 (Cth) were the result of amendments to the so-called London Scheme agreed to by Commonwealth Law Ministers in 1983.  Some of those amendments were carried across to the Extradition (Foreign States) Act 1966 (Cth) where deemed to be appropriate. 

35                  In relation to the amendment to the Extradition (Foreign States) Act 1966 (Cth) which is relevant here, the Attorney-General said:

“This amendment is of particular significance to civil law countries whose systems have difficulty in adapting to the provision of pre-trial evidence.  The extradition arrangements of most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence.”

This apparently was the result of a recommendation by a task force established following the much-publicised difficulties in relation to the extradition of one Robert Trimbole.

36                  Section 3 of the present Act identifies one of the principal objects as being to codify the law relating to the extradition of persons from Australia to extradition countries, and the Act was described by the Attorney-General in the second reading speech as substantially a consolidation of the existing laws.  It was the result of what was described as an exhaustive review of extradition laws following the 1985 amendments.  Insofar as it may be necessary to do so, resort to the parliamentary proceedings indicates that it was anticipated that treaties with Britain and other Commonwealth countries would be covered by s 11, at least until any different treaty were negotiated.  The proposed difference in procedure between Commonwealth common law countries and civil law countries was a matter of live debate, and it is clear that the differences between the s 11 procedures and the s 19(3) procedures lie not so much in the particularity with which the conduct is alleged, but rather in the nature of the material produced in support, in particular, the necessity for sworn admissible statements of evidence, these being apparently generally unavailable from civil law countries for various reasons, including the hearsay rule.

37                  In my opinion, it would be unfortunate if this Court gave the impression to countries seeking extradition, and to magistrates hearing applications under s 19, that a statement pursuant to s 19(3)(c)(ii) should not descend to precision as to the acts or omissions alleged but can allege relevant conduct in the form of general conclusions from primary facts.  To appreciate how this distinction applies in the present case, it is necessary to return to the facts.

38                  Exhibit 4 before the magistrate was described as “Documents relating to application for extradition 12 June 1997”.  This contained the material presented to the South African authorities to support the application for extradition.  It consisted of an affidavit by one Andries Petrus de Vries, who was the Attorney-General of the Witwatersand Local Division of the High Court of South Africa.  All of the relevant documents produced are identified in that affidavit.  Paragraphs 4 to 9 inclusive of the affidavit dealt with the South African law of fraud and theft and some procedural matters.  Because of the issue which needs to be resolved, I set out the whole of paragraphs 10, 11, 12 and 13 of the affidavit, but omit the listing of the witness statements and documentary evidence which completed paragraph 13.4:

“10     I have perused the evidence against the said Jacobus Johannes De Bruyn and I am satisfied that the State has a prima facie case of fraud alternatively theft against him and that a reasonable court properly directed as to the South African law could convict him of the said offences.

11                The said offences were committed in the district of Johannesburg, which falls within my jurisdiction as the Attorney-General for the Witwatersrand Local Division of the High Court of South Africa.

12                The facts of this matter reveal that on 8 October 1992 Mr De Bruyn’s bank account at First National Bank : Carlton Centre had been fraudulently credited in the amount of R1 200 000,00 as a result of a fraudulent Inter Branch Reconciliation transaction that was fraudulently placed into the bank processing system.  On 9 October 1992 Mr De Bruyn, who was a licensed jeweller, purchased 47.1 kilograms of gold to the value of R1 678 954,00 from Rand Refinery LTD.  On the same day De Bruyn had two of his own cheques bank guaranteed (for R1 190 000,00 and R283 000,00) which were drawn on the fraudulent funds in his bank account in favour of Rand Refinery LTD for payment of the gold.  When it subsequently came to light that Mr De Bruyn’s bank account had been fraudulently credited in the amount of R1 200 000,00 as a result of the fraudulent Inter Branch Reconciliation transaction, the transaction was reversed.  As payment of the two cheques, payable to Rand Refinery LTD, was guaranteed by First National Bank, they had to bear the loss.  Mr De Bruyn subsequently disappeared.

13                In support of the application for the extradition I attach hereto the following documents:

13.1          A recent photograph of Jacobus Johannes De Bruyn together with his personal details;  marked “A”.

13.2          The original warrant of arrest for Jacobus Johannes  De Bruyn issued by the Magistrate for the district of Johannesburg on 7 April 1997;  marked “B”, which is legally in order and valid.

13.3          A copy of the indictment, marked “C”, setting out the charges the State will prefer against Jacobus Johannes De Bruyn should he stand his trial in South Africa.

13.4          Sworn statements of witnesses and documentary exhibits in which the facts of this matter are set out and which clearly indicate that Mr De Bruyn has committed the crimes of fraud or alternatively theft.  I attach hereto the original witness statements together with properly certified copies of documentary evidence:

13.4.1    …”

39                  Exhibit 3 before the magistrate was described as “Documents containing application for extradition and warrant 22 September 1997”.  This was necessary because the warrant which was referred to in paragraph 13.2 of the affidavit was a warrant for the crime of fraud, whereas the affidavit referred to guilt of fraud or alternatively theft.  Mr de Vries’ supplementary supporting affidavit proved the issue of a later warrant of arrest for “fraud and/or theft”.

40                  In my opinion, the question as to what constituted the document or documents complying with s 19(3)(c)(ii) is determined upon the evidence before the magistrate, not the position taken by counsel for the applicant at any stage.  In this connection, it will be borne in mind that the question of whether there was any statement at all was a live issue before the magistrate. The Court, on review, is limited strictly to the material before the magistrate (s 21(6)(d)).  The magistrate did take Exhibits 3 and 4 as relevant to s 19(3)(c)(ii).  The judge below on review did not decide the point.

41                  There is no document identified in terms as a statement pursuant to s 19(3)(c)(ii).  In my opinion, the deponent does not put forward the copy of the indictment as such a document.  Rather, in dealing with conduct, he summarises the facts in paragraph 12 and then in paragraph 13 says in express terms that the facts of the matter are set out in the sworn statements of witnesses and documentary exhibits which are attached.  The question is not what South Africa might or might not have done.  The question is what conclusion should be drawn from what it did do.  It is interesting to observe that the summary of facts in paragraph 12 is consistent with, although not quite as detailed as, the analysis of the facts drawn from the statements and documentary evidence by Hill and Hely JJ in their reasons. I have no difficulty with the singular in s 19(3)(c)(ii) being read as the plural where necessary, or with each of the documents and statements being incorporated into the others.  The end result of the process, of course, is the deduction of a statement of acts or omissions along the lines of that of their Honours and the deponent, which can then be scrutinised by the magistrate pursuant to s 19(2)(c).

42                  If (contrary to my opinion) that process were not permissible, then the magistrate should have concluded that there simply was no statement provided pursuant to the section.  It is not appropriate, bearing in mind the nature of the proceedings, to have the applicant produce a number of documents, none of which answers the statutory description, and then pick and choose between them.

43                  It also seems to me to be clear that the draft indictment in this case was based upon, and only upon, the facts identified by the Attorney-General in his affidavit.  Lest there be any doubt that paragraph 13.4 was intended to set out all of the facts known to the prosecuting authorities (and I do not think that there should be), that can be resolved by considering the statement of Coenraad Johannes Petrus Strydom, who was the investigating officer in the case.  His statement plainly summarises all of the relevant facts gathered in the course of the investigation, and does so by reference to the statements and documents referred to in paragraph 13.4 and those alone.

44                  In my opinion, it is clearly arguable that the acts and omissions drawn by Hill and Hely JJ, in their reasons, from the statements and documentary evidence do not support the following allegations in the draft indictment:

 “… the accused did unlawfully, falsely and with the intent to defraud, misrepresent to First National Bank and/or the employees of the said Bank that:

1          the said Inter Branch Reconciliation transaction was lawful and properly authorised by First National Bank;  and/or

2                    the transfer of the R1 200 000,00 from the suspense “call” account of First National Bank to the bank account of the accused was lawful and proper;  and/or

3                    the said bank account of the accused was lawfully credited in the amount of R1 200 000,00;  and/or

4                    the R1 200 000,00 credited to the bank account of the accused could lawfully be utilised by the accused for his own private use.”

45                  It is further my opinion that in the absence of that conduct there would be no New South Wales offence by the appellant.  I shall explain this in due course, but on the view taken by the judge below and Hill and Hely JJ, the omission of that conduct from the statements and documentary evidence (and from paragraph 12 of the affidavit) does not matter because the allegation of misrepresentation in the draft indictment is sufficient.

46                  I cannot accept that a criminal pleading can rise above the facts upon which it is based.  I should make clear that I am not considering the case of allegations of knowledge or intention, which give rise to special problems, which have been discussed to some extent in the cases and may be left for another day.  Neither am I speaking of a case in which a recitation of the actual conduct implies other conduct in the true sense of the word.  I am dealing with a case in which the alleged conduct does not include any express representation and where that conduct does not enable an implication of such a representation upon the criminal, or any other, standard.

47                  The point can be made this way.  It may be permissible pleading to simply allege a misrepresentation.  This will depend upon the rules and practice in a particular jurisdiction.  That allegation, however, is a conclusion from other facts which would need to be particularised before the accused would know the case to be met.  In my view, all acts or omissions which would properly be particularised in that way would need to be particularised for the purposes of s 19(2)(c).  The actual acts or omissions of the accused must be identified.  This is not to descend to evidence in the sense in which I believe that term was used by Gummow J in Wiest.  The evidence, in that sense, may consist of admissions, evidence of eye witnesses, documents and so on.

48                  To take the case in point, I am prepared to assume, for the purpose of argument, that it may be implied or inferred from the facts stated that the appellant knew that his account either had been or was about to be credited with the unauthorised amount.  However, the only act of the appellant towards the bank was a request that two cheques be guaranteed.  He is not alleged to have said anything to the bank officer about the state of his account.  In those circumstances, for there to be any misrepresentation within New South Wales criminal law, he must have had a positive duty to say something more, or his omission to say something must have actually falsified what he did say.  No positive duty to speak has been suggested.  The circumstances here do not, in my opinion, readily fit within the well-known line of authority applying to prospectuses and like documents where omission may falsify a positive statement (R v M [1980] 2 NSWLR 195).  Counsel for South Africa was unable to refer us to any authority which would support an allegation of misrepresentation in the circumstances contained in the statements provided by South Africa if the law of New South Wales were applicable. 

49                  There is ample authority to establish that presentation of a cheque by a purchaser to a supplier of goods or services may be viewed as a representation by the purchaser that there are funds which would enable the cheque to be met.  However, no authority was cited to us which would establish that presentation of a cheque to a bank would constitute such a representation.  Such research as I have undertaken indicates that whether the facts here might amount to a relevant representation is not an easy question.  Some of the difficulties of applying ordinary concepts of criminal law to cheques are illustrated by cases such as Croton v The Queen (1967) 117 CLR 326, R v Love (1989) 17 NSWLR 608 at 617, R v Preddy [1996] AC 815 and Parsons v The Queen (1999) 160 ALR 531.  Much depends on the precise terms of the statute and particular care is necessary in considering interstate and overseas authority on differently worded crimes.  Precision is necessary in matters of criminal pleading and proof (Andrews v The Queen (1968) 126 CLR 198 at 209).  The difference in result between R v Charles [1976] 1 WLR 248 at 251-3 and R v Hamilton (1990) 92 Cr App R 54 is instructive (see also, eg, R v Capewell [1995] 2 QdR 64).

50                  In my opinion, absent any false representation by the appellant to the bank, none of ss 178BA, 178BB or 179 of the Crimes Act 1900 (NSW) would be applicable, as the conduct alleged does not satisfy the elements of any of them. The learned magistrate, with, no doubt, significant criminal experience, held that the appellant was not linked with any deception or representation or false statement within ss 178BA or 178BB (apparently s 179 was not suggested to be applicable at that stage).  It does not appear from the reasons of the judge below that he adverted to this problem.  He appears to have concentrated upon the issues of knowledge and intention, which are different.

51                  A consequence of my view of the requirements of s 19(3)(c)(ii) is that if South Africa were limited only to the indictment, then it would not qualify because the misrepresentations were pleaded in too general a form.  Indeed, that argument appears to have been put to the magistrate.

52                  Before parting from the magistrate’s reasons, I should point out that he regarded the draft indictment as being directed to the requirements of s 19(3)(c)(i), although he did apparently take it into account also in relation to s 19(3)(c)(ii).

53                  I am comforted in the view to which I have come by the way in which Foster J dealt with a similar issue arising under identical wording in the then s 17(6) of the Extradition (Foreign States) Act 1966 (Cth) in Linhart v Elms (1988) 81 ALR 557 at 588, where he said:

“There were, obviously, 20 separate charges laid in Germany.  It would seem they all were akin to charges of what is commonly described, in New South Wales, as “false pretences”.  The gravamen of each charge would obviously be the making of the particular false pretence.  Although sub-subpara (c) clearly does not require that the whole of the available evidentiary material be laid before the magistrate in Australia, it does, in my view, at least require that precise allegations of the “manner and means” of the making of the basic fraudulent representations be provided.  The method of presentation of the material adopted in relation to these charges, being no more than a compendious assertion of fraudulent behaviour coupled with terse particulars given in respect of the individual offences was, in my view, quite inadequate as a compliance with sub-subpara (c).  It was not open to the magistrate, on this material, to find that the appellants should be surrendered in respect of these charges.”

Fox J and Gummow J each agreed with this conclusion, which was in accordance with the decision of Beaumont J, the trial judge in that case.

54                  In my opinion, the matter should be returned to the judge below to determine whether the acts or omissions, or both, alleged in the statements and documentary material identified in paragraph 13.4 of the affidavit of Mr de Vreis, allege any misrepresentations sufficient to satisfy any of ss 178BA, 178BB or 179.  That issue was not dealt with by his Honour and we thus do not have the benefit of a reasoned judgment to consider.  The argument before us was attenuated as the issue only assumed importance during the hearing.  This Court does not regularly deal with criminal law.

55                  As I would be disposed to allow the appeal, it would be necessary to consider the motion by the respondent if my view were to prevail.  As it will not, I am not disposed to deal with an academic issue which is by no means free from difficulty.

Associate:

Dated:              29 September 1999