FEDERAL COURT OF AUSTRALIA

von Arnim v Federal Republic of Germany [1999] FCA 1747

EXTRADITION – application for release from custody pending appeal – release sought pursuant to an application for bail and a writ of habeas corpus – principles applicable to application for bail due to special circumstances – availability of a writ of habeas corpus in the Federal Court of Australia – application for bail and habeas corpus based on claim to diplomatic immunity – proof of diplomatic immunity.

Extradition Act 1988 (Cth):  s 19(9), s 21, s 22(5)

Schoenmakers v Director of Public Prosecutions (No 2) (1991) 31 FCR 429 cited

Wu v Attorney‑General of the Commonwealth (1997) 79 FCR 303 cited

Bertran v Minister for Justice (1999) 165 ALR 155 followed

Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 cited

Bedgood v Keeper of Her Majesty’s Penitentiary at Malabar [1975] 2 NSWLR 144 cited

Duff v The Queen (1979) 28 ALR 663 cited

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM, MD v FEDERAL REPUBLIC OF GERMANY & ANOR

V 502 of 1999

GOLDBERG J

15 DECEMBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.         The application by the appellant for a writ of habeas corpus is dismissed.

2.         The application by the appellant that he be released on bail pending the hearing of his appeal to the Full Court of the Federal Court is dismissed.

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

REASONS FOR JUDGMENT

Introduction and Background

1                     On 10 May 1999 Mr D H McLennan, a Magistrate in Victoria, determined pursuant to s 19(9) of the Extradition Act 1988 (Cth) (“the Act”) that the appellant, Dr Ulrich Christoph Eberhard Freiherr von Arnim was a person eligible for surrender to the Federal Republic of Germany in relation to the extradition offences of:

·               Damaging the financial position of another by fraudulent representation thus causing an error, in each case with the intention of gaining unlawful pecuniary advantage for himself, contrary to s 263 of the German Penal Code (15 counts).

·               Attempting to damage the financial position of another by fraudulent representation thus trying to cause an error in each case with the intention of gaining an unlawful pecuniary advantage for himself, contrary to s 53 and s 263 of the German Penal Code (34 counts).

The Magistrate, pursuant to s 19(9) of the Act, by warrant addressed to all police officers within the meaning of the Act in the State of Victoria and to the person in charge of the Melbourne Assessment Prison in Victoria, ordered that the appellant be committed to the Melbourne Assessment Prison to await, in relation to the offences the subject of his determination, surrender under a surrender warrant, or temporary surrender warrant, or release pursuant to an order under s 22(5) of the Act. 

2                     On 25 May 1999 the appellant commenced a proceeding in the Federal Court pursuant to s 21 of the Act for a review of the decision that he was a person eligible for surrender to the Federal Republic of Germany.  The application for review came on for hearing before Sundberg J on 5 August 1999.  The appellant, in substance, relied upon the following grounds of review:

(a)        the appropriate “supporting documents” had not been produced to the Magistrate as required by s 19(2) of the Act;

(b)        the appellant was immune from surrender because he was entitled to diplomatic immunity as he was Director‑General of the World Health Organisation for Australia;

Sundberg J found that the appropriate supporting documents had been produced to the Magistrate and that they had been duly authenticated as required by s 19(7) of the Act and were therefore admissible before the Magistrate.  He also found that the Magistrate had entertained the appellant’s claim to diplomatic immunity and had properly dismissed that claim.

3                     By notice of appeal dated 2 September 1999 the appellant appealed against Sundberg J’s orders dismissing the appellant’s application, confirming the Magistrate’s order on 10 May 1999 that the appellant was eligible for surrender to the Federal Republic of Germany and ordering the appellant to pay the Federal Republic of Germany’s costs of the application for review.  The grounds of appeal relied upon by the appellant are that the primary judge erred in finding that:

(a)        the Magistrate had entertained the appellant’s claim of diplomatic privilege and immunity;

(b)        the Magistrate had provided a sufficient hearing for the appellant’s claim of diplomatic privilege and immunity;

(c)        there was a lack of jurisdiction to consider whether the document purporting to be a certificate of identification of the accused person failed to be one as required of all available information concerning the identity and nationality of the person claimed;

(d)        the documentation before the Magistrate had established the appellant was the person claimed;

(e)        the document purporting to be a certificate of identification of the accused person had the required authentication to be received into evidence;

(f)         the document purporting to be a certificate of charges had the required authentication to be received into evidence.

4                     The appeal was set down for hearing on Friday 26 November 1999 but on 25 November 1999 there was filed with the Court pursuant to O 35 r10 of the Federal Court Rules a consent in writing signed by the solicitors for the appellant and the Federal Republic of Germany that the notice of appeal be discontinued and that the appellant pay the costs of the Federal Republic of Germany.  On 1 December 1999 the appellant filed a motion seeking leave to have what he called the “Notice of Discontinuance” struck out and, in a supporting affidavit, he withdrew his consent to the orders which had been the subject of the written consent by his solicitors.  The motion came on for hearing before a Full Court on 3 December 1999.  Although the written consent had been filed with the Court, the Registrar of the Court had not drawn up, signed or sealed the order in accordance with the terms of the written consent.  The Full Court was of the view that in the circumstances the appeal was still on foot.  The appellant indicated at that hearing that he wished to apply for bail and for the issue of a writ of habeas corpus.  The Full Court was of the view that such applications should be made before a single judge of the Court without prejudice to the right of the first respondent to contend, if it wished to do so, that any bail application should be made before a Full Court. 

5                     The reason for that reservation is that s 21(1) of the Act provides for a review of an order of a magistrate under s 19(9) or (10) of the Act by the Federal Court or the Supreme Court of a State or Territory.  Section 21(3) provides that the person the subject of an order under s 19(9) or (10) of the Act or the extradition country may appeal “to the Full Court of the Federal Court from the order of the Federal Court or Supreme Court”.  Section 21(6) of the Act is in the following terms:

“Where the person or the extradition country:

(a)       applies under subsection (1) for a review of an order;

(b)       appeals under subsection (3) against an order made on that review; or

(c)        appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d)       the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e)        if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released – the court to which the application or appeal is made may order the arrest of the person;

(f)        If:

(i)         because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii)        the person has been arrested under an order made under paragraph (e);

the court to which the application or appeal is made may:

(iii)       order that the person be kept in such custody as the court directs; or

(iv)             if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard;

(g)       if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences – the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.”

It may be thought that the expression “the court to which the application or appeal is made” in sub‑par (f) of s 21(6) is, where an appeal is instituted before the Full Court of the Federal Court pursuant to s 21(3) of the Act, the Full Court and not a single judge of the Federal Court.  My tentative view is that the reference to “the court to which the application or appeal is made”, where the appeal is to the Full Court of the Federal Court, is the Federal Court rather than the Full Court of the Federal Court.  Subsection (6) of s 21 applies where there is an application for review to the Federal Court or to the Supreme Court of a State or Territory, an appeal to the Full Court of the Federal Court and where there is an appeal to the High Court (after special leave has been granted).  It seems to me that the reference to “the court to which the application or appeal is made” is a reference to either the Federal Court, the Supreme Court of a State or Territory or the High Court, as the case may be, and not a reference to the Full Court of the Federal Court in contradistinction to the Federal Court.  The matter has not been fully argued before me and the first respondent has not taken any point that I should not deal with the appellant’s application for release on bail.  Rather, the first respondent submitted that I should deal with and determine the application for bail.  I have therefore proceeded on the basis that I have jurisdiction to entertain the appellant’s application for release on bail pursuant to s 21(6)(f)(iv) of the Act.

Background of the appellant

6                     The appellant was born on 7 January 1960 at Stuttgart in the Federal Republic of Germany.  He trained as a medical practitioner and completed his medical training in or about 1986.  He obtained further specialist qualifications and was married in or about July 1991.  He has three children aged seven years, six years and almost five years.  The appellant arrived in Australia with his family in March 1995. 

7                     The appellant has given evidence that what he describes as a regional office of the World Health Organisation in Australasia was formed in about April 1995 initially as an incorporated association and subsequently it was incorporated.  The Organisation is apparently now known as the World Health Organisation Australasia Limited and the appellant claims to be its regional director and that, by virtue of Commonwealth legislation and international treaties, he is entitled to diplomatic immunity and is therefore immune from arrest or detention. 

Background to extradition proceedings

8                     On 1 September 1994 the Stuttgart Local Court issued a warrant of arrest for the appellant on:

·               Fifteen charges of damaging the financial position of another by fraudulent representation thus causing an error, in each case with the intention of gaining unlawful pecuniary advantage for himself, contrary to s 263 of the German Penal Code.

·               Thirty‑four charges of attempting to damage the financial position of another by fraudulent representation thus trying to cause an error in each case with the intention of gaining an unlawful pecuniary advantage for himself, contrary to s 53 and s 263 of the German Penal Code.

·               Two charges of fabricating false documents.

The first respondent is not seeking the extradition of the appellant for the offences of fabrication or falsification of documents.

9                     On 9 December 1994 the German Higher Regional Court First Criminal Senat Division rejected a complaint by the appellant in relation to several of the fraud and attempt charges.  On 29 December 1994 the German Higher Regional Court Stuttgart dismissed the appellant’s complaint in relation to other fraud and attempt charges, but revoked the arrest warrant in relation to the two falsification charges.

10                  On 16 November 1995 the appellant was arrested by officers of Victorian Police and charged with a number of fraud offences said to have been committed in Victoria.  He was released on bail pending his trial on those offences.  He was subsequently charged with further fraud offences said to have been committed by him in Victoria between 20 August 1996 and 23 December 1997.  He was arraigned on those charges before Judge Jones of the Victorian County Court at Melbourne and claimed diplomatic immunity.  On 7 September 1998 Judge Jones ruled that the appellant did not have diplomatic immunity.  On 18 September 1998 the appellant commenced a proceeding in the Federal Court challenging Judge Jones’ ruling that he did not have diplomatic immunity.  This proceeding was dismissed on 14 April 1999.  On 16 December 1998 the appellant pleaded guilty to a Victorian state presentment containing twenty counts of fraud under the Victorian Crimes Act 1958 (Vic) and on 21 December 1998 Judge Jones sentenced the appellant to an effective sentence of twenty months of which ten months was suspended.  The appellant was released immediately because he had already served ten months in pre‑trial custody.

11                  On 7 December 1998 a provisional warrant was issued for the arrest of the appellant by reason of the German warrant of arrest issued on 1 September 1994.  On 21 December 1998 the appellant was arrested by a member of the Australian Federal Police pursuant to the provisional warrant and an application by the appellant for bail was refused by a magistrate.

12                  On 8 January 1999 Senator Vanstone, the Minister for Justice and Customs, stated by notice in writing under s 16(1) of the Act that an extradition warrant in relation to the appellant had been received by the first respondent.  On 12 March 1999 proceedings pursuant to s 19(1) of the Act commenced before the Magistrate Mr D H McLennan in the Magistrates’ Court at Melbourne.  Sundberg J found that the following German language documents with English translations were tendered to the Magistrate:

·                    the warrant of arrest dated 1 September 1994;

·                    the decision of the Higher Regional Court First Criminal Senat Division dated 9 December 1994;

·                    the order of the Higher Regional Court dated 29 December 1994;

·                    a certificate of identity of the appellant dated 15 March 1999, signed by “Reiber, Public Prosecutor”; and

·                    a certificate dated 24 October 1997 setting out the law constituting the offences with which the appellant was charged, and stating the punishment that can be imposed, again signed by “Reiber, Public Prosecutor” (“the certificate of offences”).

Sundberg J found that those documents were relevant and appropriate “supporting documents” for the purposes of s 19(2) of the Act and that they were properly authenticated.

13                  The evidence upon which the appellant relied for his claim for diplomatic immunity comprised two documents which the Magistrate declined to receive in evidence as they were not authenticated.  Sundberg J found that nevertheless those documents were part of the material before the Magistrate but that the Magistrate was correct in declining to admit the two documents.  His Honour found that the Magistrate was correct in acting upon the certificate of Mr A J G Downer, the Minister for Foreign Affairs, dated 26 May 1998 whereby Mr Downer certified pursuant to s 11 of the International Organisations (Privileges and Immunities) Act 1963 (Cth) that the appellant:

“has never been recognised by the Government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities as a representative of the World Health Organisation or any other international organisation to which the International Organisations (Privileges and Immunities) Act 1963 applies.”

14                  An affidavit has been sworn by Detective Constable Appleby, a member of the Australia Federal Police, who has been involved in the arrest of the appellant.  Mr Appleby was present when Judge Jones sentenced the appellant on 21 December 1998 and noted that Judge Jones had stated that according to a medical report of a psychiatrist the appellant was diagnosed with a “grandiose delusional disorder”.  Mr Appleby noted that Dr Kennedy stated that due to the appellant’s delusional disorder he would remain at serious risk of re‑offending in like ways in the future because of his lack of understanding of the situation.  In his affidavit Mr Appleby expresses the concern that if the appellant is released on bail he may commit further offences by reason of his delusional disorder and that a possible outcome of any further re‑offending by the appellant would be further delay of his extradition proceeding.  Mr Appleby says that the appellant is unemployed and although he has qualifications in medicine his registration in Germany as a medical practitioner has been and remains suspended.

The present application

15                  There are two motions before the Court, one for bail and a second for a writ of habeas corpus.  At the hearing before the Full Court when the application for bail was referred to a single judge of the Court, the appellant was informed of the provisions of s 21(6)(f)(vi) of the Act and asked what were the special circumstances upon which he relied.  He stated two sets of circumstances:

·                    Two forms of abuse of process, namely destruction of documents and the Magistrate making his decision without determining a constitutional point;

·                    The appellant’s status as a diplomatic agent.

Principles applicable to the application for bail

16                  Because an appeal is pending in the Full Court, an order releasing the appellant on bail pending the appeal can only be made “if there are special circumstances justifying such a course”.  The requirement that there be special circumstances justifying the release of the appellant on bail was introduced into the Act by Act No 76 of 1990, the Extradition Amendment Act 1990 (Cth).  In Schoenmakers v Director of Public Prosecutions (No 2) (1991) 31 FCR 429 Foster J said at 442:

“[I]n my view, the introduction of the requirement that bail be granted only in special circumstances to a person who has been found eligible for extradition, and who has appealed against that finding, indicates that in extradition matters all aspects of the bail procedure should be approached with particular circumspection.  It must be remembered that the interests of another country, with which Australia has treaty obligations, are involved in the retaining of control over the person bailed.”

17                  In Wu v Attorney‑General of the Commonwealth (1997) 79 FCR 303 the applicant claimed that the request for her extradition was an abuse of procedure and invalid.  Burchett J granted bail pending the hearing of her application.  His Honour expressed the view at 307 that the expression “special circumstances”:

“refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody.”

In Bertran v Minister for Justice (1999) 165 ALR 155 Sundberg and Merkel JJ cited this passage with approval and said at 161:

“In our view that is what the phrase ‘special circumstances justifying such remand’ in s 15(6) means – circumstances different in some way that provides a reason for a more favourable view of the grant of bail than that attending the ordinary run of extradition cases where a person might be expected to be remanded in custody.”

Some care must be exercised in applying authorities in relation to s 15(6) of the Act to circumstances under s 21(6) of the Act but in my opinion, the observations of Sundberg and Merkel JJ apply to the expression “special circumstances” in s 21(6)(f)(vi) of the Act.  As Sundberg and Merkel JJ pointed out in Bertran v Minister for Justice (supra) at 163, s 21(6)(f)(vi) involves a two step process.  Firstly, the determination of whether special circumstances exist and secondly the exercise of the discretion to grant bail.

18                  In Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 French J said at 74:

“The reference to ‘special circumstances’ in the context of this legislation imports a presumption against the grant of bail and puts the onus on the applicant to demonstrate that an order for bail would be justified.  There are two stages in the decision‑making process under s 21(6)(f).  The first involves the threshold question whether there are special circumstances of the kind contemplated by the section.  If that question is answered in the affirmative, the court must then consider whether, in the exercise of its discretion, it should make an order for release of the applicant on bail and, if so, upon what terms or conditions.

            The first question, whether there are special circumstances, involves a value judgment about which of the range of circumstances favouring the grant of bail are to be regarded as special and which are not.  That is a judgment to be made by reference to two criteria; the general purpose of the provision imposing the requirement and broader community standards.  The purpose of the special circumstances requirement imposed by s 21(6)(f) is apparent from the nature of the legislation and the terms of the explanatory memorandum relating to the 1987 Bill and the equivalent provisions in s 15.  It is to reduce what is perceived as ‘the very high risk of persons sought for extraditable offences absconding’.  It looks in particular to the case where a person is in Australia to avoid arrest in the country in which he is alleged to have committed the offence.”

His Honour continued at 75:

“A presumption in favour of liberty and against deprivation of liberty without just cause runs through the traditions of the common law which Australia has inherited from the United Kingdom.”

His Honour then referred to Article 39 of Magna Charta and Article 9 of the International Covenant on Civil and Political Rights and continued:

“That presumption must, of course, give way to specific statutory provisions.  but [sic] where those provisions do, as in the case of the Extradition Act, allow for normative judgments of the special circumstances under which bail may be granted, then the presumptions arising under the common law and in relevant international instruments may be taken into account.”

Habeas corpus

19                  The appellant also applies for a writ of habeas corpus.  The power to grant such a writ is not expressly found in the Act or in the Federal Court of Australia Act 1976 (Cth) although it is given to the High Court in s 33(1)(f) of the Judiciary Act 1903 (Cth):  see also High Court Rules O55 Pt V.  Such a provision was found in earlier extradition legislation such as s 16 of the Extradition (Commonwealth Countries) Act 1966‑1973 (Cth) and s 18 of the Extradition (Foreign States) Act 1966‑1973 (Cth).  In my opinion, it is open to a person who has been committed to prison as a result of the issue of a warrant under s 19(9)(a) of the Act to apply to the Federal Court for relief by way of habeas corpus as an incident of any other application properly before the Federal Court.  Section 23 of the Federal Court of Australia Act empowers the Court to make:

“orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”

That power is available to the Court “in relation to matters in respect of which jurisdiction has been conferred upon the Federal Court”.  As Deane J observed in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622:

“Wide though that power is, it is subject to both jurisdictional and other limits.  It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court.  Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

See also Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at 658.  The availability in the Federal Court of a writ of habeas corpus in relation to persons detained under Commonwealth legislation appears to have been assumed by Sackville J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 and Emmett J in Wai Yee Yeoh v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 626. 

20                  Insofar as the appellant is seeking relief by way of, or akin to, the issue of a writ of habeas corpus, it is no part of my task to undertake what is in effect an appeal from either the decision of Sundberg J or the Magistrate.  Rather the question to be asked is whether there was sufficient evidence upon which the Magistrate could have made his order for the commitment of the appellant to prison.  In Bedgood v Keeper of Her Majesty’s Penitentiary at Malabar [1975] 2 NSWLR 144 the applicant for a writ of habeas corpus had been committed to prison, pending extradition, by a magistrate pursuant to s 15 of the Extradition (Commonwealth Countries) Act 1966‑1973 (Cth).  Yeldham J held that it was no part of his function to review the decision of the Magistrate, his task rather being to determine whether the evidence before the Magistrate was sufficient to justify the making of his order.  As his Honour demonstrated, this approach had been applied by English Courts and Australian Courts under similar extradition legislation.  I consider that the same approach should be taken when an order has been made under s 19 of the Act and the person arrested seeks relief in the nature of, or akin to, a writ of habeas corpus:  see also MacDonald v Attorney‑General of Australia (1980) 24 SASR 294. 

Should bail be granted and should a writ of habeas corpus issue

21                  The appellant said he preferred to base his application on a claim for relief by way of habeas corpus rather than on the ground that special circumstances existed which warranted his release on bail.  However the appellant did not abandon his claim that special circumstances existed which warranted his release on bail.  The appellant did not pursue at the hearing his foreshadowed ground of destruction of documents. 

22                  I am satisfied that on the evidence before the Magistrate there was sufficient evidence to justify him making the order for the arrest of the appellant.  The authenticated documents justified the conclusion which he reached and it was open to him to reject the claim for diplomatic immunity.  I turn to the specific grounds raised by the appellant.

23                  The appellant challenged what he called the legality of the overall proceedings and contended that the courts did not have any jurisdiction to order his arrest or detention because he was immune from personal arrest or detention as a result of the diplomatic immunity he enjoyed as Regional Director in Australia of the World Health Organisation.  As I have noted earlier, insofar as the appellant rests his claim on an application for a writ of habeas corpus the relevant enquiry is to ask whether there was sufficient evidence before the Magistrate to justify making the order for commitment.

24                  Before the Magistrate the appellant relied on two documents to justify his claim for diplomatic immunity.  They were described by Sundberg J in the following terms:

“The first purports to be a ‘Certificate’ dated 25 August 1998 under the letterhead of WHO:

‘I, Dr Gro Harlem Brundtland, Director‑General of the World Health Organization (WHO), hereby certify that Thomas S R Topping, WHO Legal Counsel, has the full authority to speak on behalf of the Organization concerning claims made by Mr Ulrich Christoph Eberhard Freiherr Von Arnim to be a representative of WHO, including use of the WHO name and emblem made by Mr Von Arnim to support such claims.’

What purports to be a seal of WHO is placed beside the certifier’s name and signature.  The second document, again on WHO letterhead, purports to be a letter dated 19 February 1997 from Mr Topping to ‘World Health Organisation – Australasia Ltd Director General – Ulrich von Arnim’.  The letter is in part as follows:

‘I have been instructed by His Excellency Director General – Hiroshi Nakagima to inform you that in accordance with regulations and pursuant to the Constitution of the World Health Organization your incorporated International Non Governmental Organisation, World Health Organisation – Australasia Ltd, has been accredited

-           Status of a Regional Office of the World Health Organization of the United Nations in Australia with all the duties, rights and privileges of such office.’

This accreditation is subject to three ‘conditions’.  One is that World Health Organisation – Australasia Ltd ‘uses the approximately AUS$20,000,000 plus interest, Dec 95 illegally removed from its accounts, for projects in accordance with the Organisation’s Articles and Memorandum of Association’.  Immediately after listing the conditions, Mr Topping requested written confirmation ‘to that effect, by return’.  I take that to be a request for the applicant’s acceptance of the conditions.”

There was also before the Magistrate a certificate of registration in relation to a company “World Health Organisation Australasia Limited” given by the Australian Securities Commission which showed that that company had been registered and incorporated on 23 December 1996 under the Corporations Law of New South Wales. 

25                  The first respondent tendered before the Magistrate a certificate from Mr Alexander Downer, the Minister for Foreign Affairs dated 26 May 1998 who certified pursuant to s 11 of the International Organisations (Privileges and Immunities) Act 1963 (Cth) that:

“Dr Ulrich Christoph von Arnim has never been recognised by the Government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities as a representative of the World Health Organisation or any other international organisation to which the International Organisations (Privileges and Immunities) Act 1963 applies.”

26                  The Magistrate’s findings and conclusions as to the appellant’s claim for diplomatic immunity were as follows:

“The major element of the assertions by Dr von Arnim have been in regard to his diplomatic status.  I have before me no evidence at all of diplomatic status.  I have had two documents provided to me, which do not, of their own weight, form any form of evidence, particularly in the form that they are in.  Further, I do have a certificate from the Minister for Foreign Affairs saying that Dr Ulrich Christoph Von Arnim has never been recognised by the government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities.

It is just not simply a matter of a government sending somebody in to the receiving state.  Credentials and accreditations have to be produced and, of course, it is well known that in certain circumstances the receiving state can require the diplomat to leave, and so there is not a complete lack of control.

It seems to me in this particular case that, firstly, the structure of the Act does not provide for diplomatic immunity as being a defence.  The Act is not part of the criminal jurisdiction of this country.  It is part of an arrangement under a treaty power in regard to the return of alleged offenders to other countries, and so to that extent immunity from criminal prosecution does not seem to me to really arise.  Secondly, the nature of the act does not give it as a matter that I should be concerning.  The third thing is, of course, that diplomatic immunity will only relate to matters in the receiving state, and does not give any exemption in the sending state, or necessarily in the state where the offences have occurred.

So, for all of those reasons, I am satisfied that that is not an issue that I have to consider.  If I am wrong, I have no doubt the Federal Court will put me right, but just on the basis of the evidence before me, I see nothing before me which leads me to the conclusion that I should find that Dr Von Arnim is a diplomatic agent.”

27                  Sundberg J held that the question of diplomatic immunity went to whether the Magistrate had jurisdiction to determine whether the appellant was eligible to surrender and that if the appellant was a diplomatic agent within the meaning of the Vienna Convention on Diplomatic Relations.  His Honour said that if the appellant was such a diplomatic agent he was immune from Australia’s criminal, civil and administrative jurisdiction.  Sundberg J held that the Magistrate was right to have entertained the appellant’s claim to immunity and was correct in declining to admit the two World Health Organisation documents and in acting on the Minister’s certificate relying on Duff v The Queen (1979) 28 ALR 663.  At 695 the Full Court (Brennan, McGregor and Lockhart JJ) said:

“Recognition of the status of diplomatic personages is the prerogative of the Government of Australia, and a person who is so recognised as having a particular status has that status for the purpose of a court of law.”

Sundberg J concluded his analysis of the appellant’s claim for diplomatic immunity by holding that even if the two World Health Organisation letters were admissible he would not have acted upon them for the reasons he set out.  I agree, with respect, with the reasoning of Sundberg J as to why the appellant’s claim for diplomatic immunity failed. 

28                  In argument before me the appellant raised two arguments which apparently were not advanced before the Magistrate or Sundberg J.  He tendered what appeared to be the Memorandum and Articles of Association of the World Health Organisation Australasia Limited.  He contended that the Memorandum and Articles established that he was Regional Director of the World Health Organisation and that by virtue of the relevant provisions of the International Organisations (Privileges and Immunities) Act 1963 (Cth) and the Specialised Agencies (Privileges and Immunities) Regulations, S R 1986 No 67, he was entitled to immunity from personal arrest and detention.  He submitted that the certificate of registration of World Health Organisation Australasia Limited and its Memorandum and Articles of Association were conclusive evidence of what was stated in them, relying on Australian Securities Commission v SIB Resources NL (1991) 30 FCR 221.  He also relied on a document which I admitted subject to objection by the first respondent dated 18 December 1996.  The document purported to be on the letterhead of “German Australian Chambers of Physicians” and “World Health Organisation Australasia”.  It was addressed, “To whom it may concern” and was signed by the appellant as “Director General”.  It stated:

“This is to authorise the Office of the Executive Board of the World Health Organisation – Australasia, to take the necessary steps to incorporate the Organisation as a Public Company limited by guarantee with the Australian Securities Commission and the Taxation Office and name as registered Office the Organisation’s Solicitor address

Bouzanis Solicitors

c/o Patricia Bouzanis

Level 2 – Suite 2 – 22 Hunter St,

Parramatta  NSW  2150”

Opposite the appellant’s signature was what appeared to be a seal of “German Australian Chambers of Physicians • World Health Organisation Australasia”.

29                  The appellant’s response to the first respondent’s reliance on the Minister’s certificate, s 11 of the International Organisations (Privileges and Immunities) Act 1963 (Cth) which makes the certificate “evidence of the facts certified” and Duff v The Queen (supra), which holds that it is the prerogative of the Government to recognise diplomatic agents, was to refer to the judgment of McHugh J in Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte The Defence Housing Authority (1997) 190 CLR 410 at 458 (which the appellant erroneously attributed to Brennan CJ), where his Honour said:

“Where the federal Parliament legislates in respect of executive power, however, the protection of the Commonwealth from State laws is to be found in s 109 of the Constitution, not in the Cigamatic doctrine.  To so hold is simply to apply the basic constitutional principle laid down in Attorney‑General v De Keyser’s Royal Hotel to the executive power generally.  That principle is that, when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament.”

The appellant referred to Despoja v Durack (1979) 40 FLR 230 and submitted that because of the statutory provisions which existed in relation to diplomatic immunity Mr Downer’s certificate could not be taken into account by the Court. 

30                  The Memorandum and Articles of Association of the company do not advance the appellant’s claim for diplomatic immunity and do not provide any further links in the chain which the appellant contends gives him diplomatic immunity.  The decision in Australian Securities Commission v SIB Resources NL (supra) is of no assistance to the appellant.  It is not authority for the proposition that the Memorandum and Articles of Association of a company are conclusive evidence of what is stated in them or that a challenge cannot be made to facts asserted in the Memorandum and Articles.  Although a certificate under the common seal of the Australian Securities Commission stating that a company has been registered may be conclusive evidence that the requirements of the Corporations Law as to registration have been complied with, the certificate is not conclusive evidence of the facts stated in the Memorandum and Articles of Association of the company.

31                  In any event, the contents of the Memorandum and Articles do not assist the appellant as they do not state or establish that the appellant is a Regional Director of the World Health Organisation for the purposes of Reg 6 of the Specialised Agencies (Privileges and Immunities) Regulations.  Paragraph 3 of the Memorandum states that the company is a regional office of the World Health Organisation.  This statement in this paragraph is admissible evidence of that fact.  Even if I assume for the purposes of the appellant’s submissions that this is the fact, the appellant is still not assisted.

32                  Article 31 sets out the various offices of the company and states that the executive office bearers shall consist of the Director General, the Treasurer, the Secretary General, Director of Aboriginal Affairs and the Director of Overseas Affairs.  Article 32 states that four named persons, one of whom is the appellant “shall constitute part of the first and second Board of directors”.  The Articles do not confer on any of those named person a designated title or office.  The Articles do not give the appellant the title or office of “Regional Director” of the World Health Organisation.

33                  There is no evidence that the World Health Organisation has appointed the appellant as its Regional Director for any region.  The two documents before the Magistrate and Sundberg J did not do so; neither do the Memorandum or Articles.

34                  The reasoning of McHugh J in Re Residential Tenancies Tribunal (supra) does not deny the force and effect of the Minister’s certificate.  The certificate is given in accordance with s 11 of the International Organisations (Privileges and Immunities) Act and has undisputed effect:  Duff v The Queen (supra) at 693‑695.  The giving of the certificate was not in conflict with any statute.  The appellant appeared to be saying that because he was entitled to diplomatic immunity under the provisions of the relevant legislation, the Minister’s certificate could not deny the effect of that legislation.  The Minister’s certificate does not have that effect and rather is congruent with the legislation.  It is not correct to say that in giving the certificate the Minister has not acted in accordance with the statutory regime laid down by Parliament.

35                  The document addressed “To whom it may concern” is not admissible in evidence and has no probative value.  It is not authenticated or otherwise verified and, in any event, is not evidence that the World Health Organisation has appointed the appellant to any office or given him any title.  The appellant submitted that it was admissible pursuant to s 1274 of the Corporations Law but it has not been certified by the Australian Securities and Investments Commission and the matters contained in it do not advance the appellant’s claim for diplomatic immunity.

36                  I turn to the appellant’s remaining submissions.  The appellant contended that the Magistrate had the Memorandum and Articles of the Association of the Company before him but it is apparent from the transcript of the hearing before the Magistrate that they were not in evidence before him.  For the reasons to which I have referred the Memorandum and Articles do not assist the appellant.

37                  The appellant submitted that the repealed 1988 Regulations relating to the Federal Republic of Germany being declared to be an extradition country had been relied upon before the Magistrate.  This is incorrect as the transcript shows that the first respondent tendered the Extradition (Federal Republic of Germany) Regulations, Statutory Rules No 134 of 1990 and the amending rules Statutory Rule No 234 of 1990.

38                  The appellant referred to his passport which showed that he had entered the United States of America on 28 November 1992.  He apparently relied on this fact to challenge that he was the person who had committed the offences in Germany with which he had been charged.  The Magistrate was satisfied that there had been a sufficient identification of the appellant in the documentation tendered and I am satisfied that there was sufficient evidence before the Magistrate to enable him to reach this conclusion.

39                  The appellant referred to an apparent inconsistency in the date of transcription of the evidence before the Magistrate on 7 April 1999.  The hearing of the extradition application was adjourned on 19 March 1999 and resumed on 7 April 1999.  Pages 112 to 123 of the transcript show that they were typed on 4 April 1999.  That is obviously a mistake.  Nevertheless the transcript reads as a continuous transcript and the proceedings recorded on those pages are part of the proceedings which commenced on 7 April 1999 when the appellant said he could not proceed because his glasses had been destroyed.  The issue is irrelevant to any issue presently before the Court.

40                  The appellant submitted that the Magistrate had erred on 10 May 1999 in not adjourning the extradition hearing once the appellant had given a notice of constitutional matter under s 78B of the Judiciary Act 1903 (Cth) and had apparently filed an application in the High Court on 4 May 1999 seeking the removal of the proceeding into the High Court because of his claim to diplomatic immunity.  The Magistrate refused the adjournment on the basis that it was inappropriate to fragment the hearing and said that the appropriate course was to allow the proceeding to be concluded rather than have appeals every step of the way.  In my opinion, the Magistrate made the correct decision in refusing the adjournment.  Even if his decision was open to doubt it would not be a matter which would influence the determination of the issues presently before the Court.  The appellant, in reply, referred to R v Duffield; R v Dellaptrona (1992) 28 NSWLR 638 at 657 per Kirby P, but I cannot see that that case or the page referred to has any relevance to the issues before the Court.

41                  In summation, the appellant submitted that he had an exceptional chance of success with his appeal to the Full Court and that accordingly he should be released on bail.  I reject that submission.  In my opinion the appellant’s claim for diplomatic immunity has little prospects of success for the reasons to which I have referred.

Conclusion

42                  The application for relief in the nature of, or akin to, a writ of habeas corpus must therefore fail.  It has not been shown that the order or authority under which the appellant is detained is not lawful.  The Magistrate had the authority to order the appellant’s commitment to prison and there was sufficient evidence before him to justify his making of the order.  The claim for diplomatic immunity has not been made out.

43                  I am not satisfied that there are special circumstances which warrant the appellant’s release on bail.  I do not accept, as the appellant submitted, that he has an exceptional chance of success with his appeal.  The only other matters relied upon by the appellant are that his family and children live in Australia and that he has not been convicted of breaching earlier bail.  Those are not special circumstances but rather circumstances which frequently apply when persons are held in custody.  Even if special circumstances did exist, I would not be disposed, as an exercise of discretion, to order the appellant’s release on bail having regard to the evidence of Detective Constable Appleby.

Associate:

Dated:              15 December 1999