FEDERAL COURT OF AUSTRALIA

Bennett v Government of the United Kingdom [2000] FCA 916

Extradition - scope of review under s 21 of Extradition Act - whether by way of rehearing

Extradition - supporting documents - warrant - whether warrant’s validity according to law of requesting country reviewable

Extradition - supporting documents - warrant - due authentication - sealing - whether seal must be affixed to warrant directly

Extradition - supporting documents - warrant - due authentication - purported certification by officer in or of requesting country - significance of requirement that certification be “purported” - whether purported certification requires signature - whether initialling satisfies requirement of signing - whether class of certifying officer implied limited

Extradition - supporting documents - statement of description of and penalty for offence - whether questions as to existence of offence under requesting country’s law at relevant time and as to penalty for such offence under requesting country’s law at relevant time examinable by magistrate or court

Extradition - supporting documents - statement of conduct constituting offence - whether witness statements can amount to “conduct” statement - whether Scottish petition for arrest warrant can amount to “conduct” statement

Extradition - “extradition offence” - whether question whether offence is “extradition offence” to be determined by particular circumstances of person whose surrender is requested

Extradition - double criminality - significance of fact that “conduct” statement alleges conduct outside relevant law area of requesting country - whether double criminality question to be determined solely by reference to “conduct” statement

Extradition - double criminality - whether local offence must exist containing all elements of conduct alleged by requesting country

Extradition - extradition objection - undergoing punishment - whether person can undergo punishment for offence without having been convicted

Extradition - whether question as to whether proceedings before magistrate by requesting country an abuse of process examinable by magistrate or court

Extradition - “sufficient grounds” - admissibility of evidence - hearsay - conversations not in direct speech - statements of conclusions

Extradition - “sufficient grounds” - approach to consideration of circumstantial evidence

Criminal law - New South Wales - effect of s 3A of Crimes Act on s 178BA of Crimes Act - whether representation that representor in position to do something a deception within s 178BA of Crimes Act - whether representation that representor prepared to do something a deception within s 178BA of Crimes Act

Criminal law - New South Wales - cheque as “valuable thing” for purposes of s 178BA of Crimes Act

Practice & procedure - extradition - whether magistrate should be named as respondent to application under s 21 of Extradition Act for review of magistrate’s order

Words & Phrases - “purported”, “undergoing punishment”

Extradition Act 1988 (Cth), ss 5, 7, 11, 19, 21, 34, 35(6)(d), 55(a)

Extradition (Commonwealth Countries) Regulations (Cth), regs 3, 5, 6, Pt 1 of Schedule

Extradition Act 1870 (UK)

Criminal Procedure (Scotland) Act 1975 (UK), s 221

Crimes Act 1900 (NSW),  ss 3A, 178BA, 179

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

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed

Republic of South Africa v Dutton (1997) 77 FCR 128 followed

Rahardja v Republic of Indonesia [2000] FCA 639 referred to

Ingram v Attorney-General for the Commonwealth [1980] 1 NSWLR 190 referred to

Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 applied

In the Estate of AH Theakston (1956) 74 WN (NSW) 113 referred to

Wilson v Parry (1937) 13 LGR (NSW) 196 referred to

Prabowo v Republic of Indonesia (1997) 74 FCR 599 referred to

Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15 referred to

Linhart v Elms (1988) 81 ALR 557 referred to

McDade v United Kingdom [1999] FCA 1868 applied

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

Kron (1995) 78 A Crim R 474 referred to

Lipohar v The Queen (1999) 168 ALR 8 referred to

Reg v Governor of Brixton Prison, Ex parte Gardner [1968] 2 QB 399 referred to

Greene v The King (1949) 79 CLR 353 referred to

R v Timperon (No 2) (1976) 15 SASR 1 referred to

R v Gordon (1889) 23 QBD 354 referred to

United States v Holt (1994) 49 FCR 501 applied

Foster v Minister for Customs and Justice (1999) 164 ALR 357 referred to

Foster v Senator Amanda Vanstone [1999] FCA 1447 referred to

Pap[a]zoglou v Republic of the Philippines (1997) 74 FCR 108 referred to

McDade v Attorney-General of the Commonwealth (FCA: RD Nicholson J, 1 May 1998, unreported) applied

Dutton v Republic of South Africa (1999) 84 FCR 291 referred to

Dutton v Republic of South Africa (1999) 162 ALR 625 referred to

Dutton v Republic of South Africa (1999) 92 FCR 575 referred to

Ujiie v Republic of Singapore (1996) 66 FCR 323 applied

Wentworth v Rogers [1984] 2 NSWLR 422 referred to

Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358 distinguished

Commonwealth of Australia v Riley (1984) 5 FCR 8 applied

Winkler v DPP (1990) 25 FCR 79 applied

R v Governor of Pentonville Prison, Ex p Kirby [1979] 1 WLR 541n referred to

R v Stolpe (NSWCCA: Mahoney ACJ, Hunt CJ at CL and Barr J, 30 October 1996, unreported) applied

Parsons v The Queen (1999) 195 CLR 619 referred to

R v Bilick (1984) 36 SASR 321 approved

Forrest v Kelly (1991) 32 FCR 558 referred to

Aughterson Extradition: Australian Law and Procedure 1995 pp. 121-22

17(2) (reissue) Hals Laws (4^th) p.110

PAUL JAMES BENNETT v GOVERNMENT OF THE UNITED KINGDOM & ANOR

N 1136 OF 1999

KATZ J

7 JULY 2000

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.                  The order of the second respondent committing the applicant to prison to await surrender or release be confirmed, in so far as that order was based on a determination that the applicant was eligible for surrender to the United Kingdom in relation to a charge of fraud concerning a helicopter.

THE COURT DECLARES THAT:

2.         The applicant is not eligible for surrender to the United Kingdom in relation to a charge of fraud concerning a car.

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

REASONS FOR JUDGMENT

1                     The present proceeding has its origin in the seeking by the United Kingdom of the extradition of Mr Paul James Bennett from Australia for two offences of fraud under Scottish law.  Subsequently, a New South Wales magistrate determined at the instance of the United Kingdom that Mr Bennett was eligible for surrender to it in relation to both of those offences.  The magistrate accordingly ordered under subs 19(9) of the Extradition Act 1988 (Cth) (“the Act”) that Mr Bennett be committed to prison to await a decision by the Commonwealth Attorney-General either to surrender him to the United Kingdom or to release him.

2                     In the present proceeding, Mr Bennett has applied to this Court under subs 21(1) of the Act, which subsection provides for a “review” of the order made by the magistrate under subs 19(9) of the Act.  Mr Bennett has of course (in effect) named the United Kingdom as a respondent to the proceeding.  He has also named the magistrate as a respondent to the proceeding, but, not surprisingly, she has taken no active role in it.  (Indeed, it may be that she should not even have been so named: compare Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 543-44 (Gummow J).) Subsection 21(6) of the Act provides relevantly that on an application of the present type this Court “shall have regard only to the material that was before the magistrate”.  Subsection 21(2) of the Act provides relevantly that this Court may either confirm the magistrate’s order or quash it and direct the magistrate to order Mr Bennett’s release. 

3                     The order of which review is sought by Mr Bennett was made by the magistrate at the conclusion of proceedings which she had conducted under subs 19(1) of the Act.  In Zoeller v Federal Republic of Germany (1989) 23 FCR 282, a Full Court of this Court (Lockhart, Gummow and Hill JJ), having referred to the fact that the ultimate issue to be decided by a magistrate in proceedings under subs 19(1) of the Act is whether a person in respect of whom an extradition request has been made is “eligible for surrender”, then continued (at 303-04),

“To determine that issue the magistrate will be required to determine the following constituent matters:

1.         Is the offence one which qualifies as an extradition offence? (see s 5)

2.         Is the requesting country an extradition country? (see s 5)

3.         Are the documents produced to him [or her, that is, to the magistrate] as ‘supporting documents’ under s 19(2)(a) within the definition of that expression in s 19(3) having regard to the following questions:

(a)        is there a duly authenticated warrant of the kind described by s 19(3)[(a)];

            …

(c)        is there a duly authenticated statement in writing setting out the matters in s 19(3)(c)(i) [that is, a description of, and the penalty applicable in respect of, the offence];

(d)               is there a duly authenticated statement in writing setting out the conduct constituting the offence (see s 19(3)(c)(ii))?

… [T]he magistrate may be required as well to determine whether the evidence before him [or her] would, if uncontroverted, provide sufficient grounds to put the person on trial or sufficient grounds for inquiry by a court.”

4                     Earlier in its reasons for judgment (at 299), the Full Court had referred to two other constituent matters for the magistrate’s determination under subs 19(1) of the Act, saying,

“ … the magistrate is charged with the task of determining whether in his [or her] opinion the double criminality requirement of s 19)(2)([ ]c) is satisfied, and to put it briefly and perhaps loosely, that there is no extradition objection as defined in s 7 (see s 19(2)(d)).”

5                     (It is noteworthy that the double criminality matter referred to in par 19(2)(c) of the Act is expressed as requiring that the magistrate be “satisfied” that double criminality exists, while the extradition objection matter referred to in par 19(2)(d) of the Act is expressed as requiring that the person whose surrender is being sought does not “satisfy” the magistrate that there are substantial grounds for believing that an extradition objection exists.  In their references to the magistrate’s satisfaction or absence thereof, the two matters set out in pars 19(2)(c) and (d) of the Act respectively differ from those set out in pars 19(2)(a) and (b) of the Act respectively, the latter two matters being expressed in an objective manner.)

6                     Subsequently to Zoeller, the High Court of Australia (Brennan CJ and Dawson, Toohey, McHugh and Gummow JJ), in Kainhofer, held that it was no part of a magistrate’s function under s 19 of the Act to determine whether a person the subject of an extradition request was an “extraditable person” within the meaning of s 6 of the Act.  That definitional provision has three elements, one of which (par (b)) is relevantly that the offence or any of the offences in relation to which a warrant is or warrants are in force for the arrest of a person is an “extradition offence”.  It might be possible to mount an argument that the effect of the High Court’s decision in Kainhofer was that, in so far as this Court held in Zoeller that a magistrate determining a person’s extradition eligibility is required to determine whether the offence is one which qualifies as an extradition offence, its holding was impliedly overruled by Kainhofer.  However, no such argument was mounted before me and I will therefore simply follow Zoeller herein on the “extradition offence” point, without troubling to consider whether such an argument would, if made, be likely to succeed.

7                     As well as referring to the magistrate’s function under s 19 of the Act, the Full Court in Zoeller also made brief reference to the scope of this Court’s function under s 21 of the Act, merely saying (at 292), “It is unnecessary for the purposes of this case[ ] to determine comprehensively what is contemplated by the ‘review’, by reference to which s 21 of the Act defines the jurisdiction of this Court”.  However, the question of the scope of this Court’s function under s 21 of the Act was subsequently given more detailed consideration by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128.  His Honour’s conclusion, based on a number of matters which he mentioned (see at 135-36), was as follows (at 136):

“[T]he review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error.  It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate.”

8                     I must confess that I am not entirely free from doubt as to the correctness of Hill J’s conclusion.  I will mention two matters which appear to me to tend against its correctness, neither of which was mentioned by Hill J.  The first is as follows: the Act makes special provision for extradition from Australia to New Zealand, as opposed to any other country.  Section 35 of the Act deals with review by courts of magistrates’ orders made under s 34 of the Act in connection with extradition requests by New Zealand and par 35(6)(d) of the Act provides with respect to such applications for review that “the court to which the application is made shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate” (emphasis added).  Obviously, subs 21(1) of the Act omits the words “by way of rehearing” which appear in par 35(6)(d) of the Act (each of those provisions having been in the Act in that form from the time of the Act’s original enactment) and, as I have already pointed out, subs 21(6) of the Act provides relevantly that on an application of the present type this Court “shall have regard only to the material that was before the magistrate”.  The second matter which appears to me to tend against the correctness of Hill J’s conclusion is that the matters dealt with in pars 19(2)(c) and (d) of the Act are, as I have already pointed out, specifically expressed to depend on the satisfaction or absence thereof of the magistrate.

9                     However, I need not refer further to the significance of either par 35(6)(d) of the Act or pars 19(2)(c) and (d) of the Act for the scope of this Court’s review function under subs 21(1) of the Act.  That is because both active parties to the present proceeding were agreed that that function is as Hill J decided it to be in Dutton and I am by no means satisfied that Hill J was plainly wrong in so deciding.  I will therefore stand in the shoes of the magistrate for the purpose of the present proceeding and will deal with each of the matters which have been referred to in pars 3 and 4 above as ones with which the magistrate either is or may be required to deal in determining extradition eligibility.  (I will, however, deal with those various matters in an order different from that in which they have been referred to in pars 3 and 4 above.) I will also deal with one further matter raised by Mr Bennett, an argument that the proceedings before the magistrate were an abuse of process on the part of the United Kingdom.

10                  I can dispose immediately of the second matter referred to at 303-04 in Zoeller, namely, whether the requesting country, the United Kingdom, is an extradition country.  It is.  See: par (a) of the definition of “extradition country” in s 5 of the Act; par 55(a) of the Act; reg 3 of the Extradition (Commonwealth Countries) Regulations (Cth) (“the Regulations”); and Pt 1 of the Schedule to the Regulations.  (I should perhaps add here that Mr Bennett, who appeared before me in person and who is not a lawyer, did not submit that the United Kingdom was not an extradition country, although he did make submissions as to all of the other matters with which I will subsequently deal.)

11                  I turn next to the third matter referred to at 303-04 in Zoeller, namely, whether the United Kingdom has produced the required supporting documents in relation to the two offences.  That matter, as was pointed out in Zoeller, may be subdivided by reference to the different types of supporting documents required in a case such as the present.  Those are: 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 (par 19(3)(a) of the Act); a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence (subpar 19(3)(c)(i) of the Act); and a duly authenticated statement in writing setting out the conduct constituting the offence (subpar 19(3)(c)(ii) of the Act).

12                  As to the warrant requirement, among the documents produced by the United Kingdom in support of its extradition request are two copy documents, each dated 20 November 1989.

13                  The first purports to be a petition signed by an Assistant Procurator-Fiscal addressed to “the Honourable the Sheriff of Grampian, Highland and Islands at Aberdeen”.  It charged the present applicant, both under his own name and under the alias “Paul Lewis Louis Bennett”, with two offences, as follows:

“(1) Between 1 and 30 June 1989, both dates inclusive, at the premises occupied by Gillanders Motors Ltd, Greenhole Place, Bridge of Don, Aberdeen and elsewhere in Aberdeenshire, DID pretend to David Francis Alexander Barry Gillanders, Managing Director of said company, that he was in a position to obtain a Lamborghini motor vehicle from a private collector in Geelong, Melbourne [sic], Asutralia [sic] and that he was prepared to agree with said David Francis Alexander Barry Gillanders that he would share with him the cost of transporting the vehicle to the United Kingdom for the purpose of subsequent sale at a profit there, induce [sic] said David Francis Alexander Barry Gillanders to pay to him the sum of £45,597.48 by transferring funds into an account held by him in the name of Magnum Helicopters (UK) Ltd at Lloyds [sic] Bank, Park Lane Branch, 84 Park Lane, London, the truth being as he well knew that he was not in a position to obtain said vehicle and said vehicle and collector did not exist and he did by these means obtain the sum of £45,597.48 by FRAUD.

(2) Between the dates above libelled at places above libelled, DID pretend to said David Francis Alexander Barry Gillanders that he was in a position to offer and sell to him a share in the ownership of a helicopter and the revenue generated from the use of same, induce [sic] said David Francis Alexander Barry Gillanders to pay the sum of £35,225.88 in payment of said part ownership, the truth being as he well knew that he was not the owner of said helicopter and was not in a position to transfer any share in the ownership of said helicopter nor in the revenue generated from the use thereof and did by these means obtain benefit to the value of said payment by FRAUD.”

The petition then continued, “MAY it please your Lordship to grant Warrant to Officers of Law to … apprehend … PAUL JAMES BENNETT… and to bring him … for examination in respect of the above charge(s)….”

14                  The second copy document dated 20 November 1989 purports to be an arrest warrant.  It states in type, “The Sheriff[,] having considered the foregoing Petition, grants Warrant to Officers of Law to … apprehend … and bring for examination … PAUL JAMES BENNETT … as craved….” At the end of the relevant text of the document, there also appears in type the word “Sheriff”, above which appears an illegible signature.  The Sheriff concerned is not identified by name in the warrant, although Aberdeen is said in the warrant to be its place of issue.  There is nothing on the copy warrant to suggest that the original had been sealed, nor has any seal been affixed directly to the copy warrant.

15                  (I note that the use in the warrant of the word “foregoing” and the omission from the warrant of a recitation of the offences alleged against Mr Bennett make it sufficiently plain that the original petition and the original warrant were both part of one continuous form, so that anyone reading the original warrant would be able to read its contents by reference to the contents of the original petition.  Thus, for instance, anyone reading the original warrant could infer, by reference to the original petition, that the Sheriff who had granted the warrant was the same “Sheriff of Grampian, Highland and Islands at Aberdeen” to whom the original petition had been addressed.)

16                  Each of the two copy documents to which I have referred above has on it an original stamp saying, “Aberdeen,    A true copy Certified by me    Sheriff Clerk Depute”.  Immediately after “Aberdeen,” has been inserted in hand the date “15/3/99” and immediately after the word “me” has been inserted some writing which appears to consist of initials, rather than a person’s full name.  The Sheriff Clerk Depute concerned is not identified by name in the certification.

17                  The two copy documents have been bound together as part of a larger bundle of documents by the use of spiral binding.  As well, a continuous piece of ribbon has been used to tie together all of the documents in the spiral-bound bundle.  That ribbon also runs through an accompanying wafer-seal which says on it “Secretary of State for Scotland”.

18                  In order for the copy warrant to qualify as a supporting document for the purpose of par 19(2)(a) of the Act, it must be (relevantly) a “duly authenticated” copy of a warrant issued by the United Kingdom for the arrest of Mr Bennett for the two fraud offences.  The notion of due authentication is dealt with in subs 19(7) of the Act, which provides relevantly that a document is duly authenticated for the purposes of s 19 if it “purports to be signed or certified by a judge, magistrate or officer in or of the extradition country” (par 19(7)(a) of the Act) and “purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal … of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country” (subpar 19(7)(b)(i) of the Act).

19                  Mr Bennett, as I understood him, made three arguments with which I must deal as to why the copy warrant did not qualify as a supporting document.

20                  First, he submitted that, for two reasons, the original warrant had been invalid according to Scottish law: first, the signature on it was illegible and the Sheriff concerned was not otherwise identified by name in it; and, secondly, it was not sealed. 

21                  Secondly, he submitted that the copy warrant had not been sealed within the meaning of subpar 19(7)(b)(i) of the Act, because the required seal had not been directly affixed to it. 

22                  Thirdly, he submitted that the certification on the copy warrant, to which certification I have referred in par 16 above, was insufficient for the purpose of par 19(7)(a) of the Act.  That was because it was merely initialled by a person not identified by name, and because, in any event, it had not been established that that person was an “officer” of the United Kingdom within the meaning of that provision.

23                  As to the submission that the original warrant was invalid, in my view, the question whether a document purporting to be a warrant issued by an extradition country is invalid by reason of its failure to comply with formal requirements prescribed by the law of that country is not a question for a magistrate under s 19 of the Act (or, it follows, for this Court under s 21 of the Act).

24                  In Zoeller, the Full Court discussed (at 299-300) the question whether a warrant issued by an extradition country could be treated as invalid by a magistrate in proceedings under subs 19(1) of the Act because it contained allegations of fact against the person whose surrender was being sought which went beyond the facts necessarily constituting the offence in the extradition country.  The Full Court’s conclusion was that such a warrant could not be so treated.  The Full Court said,

“The magistrate is no expert in foreign law.  He [or she] is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime.  That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated.”

Later (at 303-04), the Full Court returned to that matter, saying,

“In our opinion it is clear from the language of the Act itself that the proceedings before the magistrate are not intended to raise the issue whether the conduct complained of was an offence under the law of the country requesting extradition.  That this is so appears not only from the objects of the legislation in s 4 but also from a perusal of the Explanatory Memorandum and the Second Reading Speech of the Attorney-General on 28 October 1987 (Hansard (1987) No 15, p 1615ff).”

The Full Court made the statement just quoted in the course of discussing the further question whether it was part of the magistrate’s function under s 19 of the Act to determine whether a prosecution in the extradition country of the person whose extradition had been requested would be statute-barred according to the law of that country.  As to that question, the Full Court’s conclusion was as follows:

“The question whether the proceedings are statute barred in Germany is … a question irrelevant to the inquiry before the magistrate under s 19.  This is not surprising because questions of limitations notoriously involve questions of facts, most limitation provisions being subject to exceptions and qualifications.  The evidence of Mr Dammholz went to the expiry of the German limitation period.  Since we are of the view that the issue whether the German offence was statute barred was not an issue properly before the magistrate it follows that in our view the affidavit dealing with the limitation period was rightly rejected.”

25                  If the Parliament did not intend it to be part of a magistrate’s function under s 19 of the Act to determine what are the facts necessary to constitute the offence in the extradition country according to the law of that country and also did not intend it to be part of a magistrate’s function under s 19 of the Act to determine whether a prosecution for the offence in the extradition country would be statute-barred according to the law of that country, I am unable to see how the Parliament could have intended it to be part of a magistrate’s function under s 19 of the Act to determine whether the extradition country’s warrant was invalid because of the warrant’s failure to comply with formal requirements imposed by the law of that country.  As the Full Court said in Zoeller, “The magistrate is no expert in foreign law”, a statement which applies just as much to the question whether the warrant meets formal requirements under the foreign law as it does to the questions whether the facts alleged are an offence under the foreign law and whether a prosecution for the offence would be statute-barred under the foreign law.  Further, the question of the formal validity of the foreign warrant could embroil a magistrate in questions of fact, just as much as could a question whether a criminal proceeding would be statute-barred in the extradition country according to that country’s law.  Indeed, if the question of the formal validity of the foreign warrant were one for a magistrate, it would appear to follow that the question of its substantive validity would also be such a question, in which case the magistrate could, for instance, also become embroiled in such questions of fact as whether the foreign warrant had been obtained by fraud or whether the person granting it had been affected by bias.  (Note also Rahardja v Republic of Indonesia [2000] FCA 639 (Tamberlin J, 16 May 2000, unreported), [58], in which it was held that the question whether charges against the person whose surrender was being requested were duplicitous was not one for (the magistrate or) this Court, but was rather one for the requesting State alone.)

26                  I add, incidentally, that, given that it was Mr Bennett’s position that it had been part of the magistrate’s function under s 19 of the Act to determine whether the Scottish warrant was invalid because of its failure to comply with formal requirements imposed by Scottish law, it is noteworthy that he sought to put no evidentiary material before the magistrate as to what those formal requirements were.  His failure to do so is especially striking, since Mr Bennett did seek (successfully) to put before the magistrate in the proceedings before her the evidence of Associate Professor Mark James Findlay of Sydney University Law School, an expert on Scottish criminal law, concerning certain other aspects of that law.

27                  (As I have just introduced Associate Professor Findlay’s name, it is probably convenient to mention now that, for the purpose of the proceeding before me, Mr Bennett read an affidavit sworn by him to which he had annexed, among other things, a transcript of the oral evidence given before the magistrate by Associate Professor Findlay and a copy of a written opinion given by Associate Professor Findlay.  When Mr Bennett first sought to read his affidavit, I enquired of him, given the terms of subs 21(6) of the Act, whether he was seeking in his affidavit to put before me any material which had not been before the magistrate.  In the course of his answer, he assured me that Associate Professor Findlay’s opinion had been admitted into evidence before the magistrate.  Having had an opportunity since the hearing to read so much of the transcript of the proceedings before the magistrate as Mr Bennett put before me, I am now aware that Mr Bennett’s answer was false and that the tender of Associate Professor Findlay’s opinion had been rejected by the magistrate.  However, in Dutton, Hill J (at 132) expressed the view that material which was sought to be tendered before a magistrate, but was rejected, was material to which this Court could have regard as material that was “before the magistrate” within the meaning of subs 21(6) of the Act.  On that basis, I am able to have regard for present purposes to Associate Professor Findlay’s opinion, as well as to his oral evidence before the magistrate.)

28                  I turn next to Mr Bennett’s submission that the copy warrant had not been sealed within the meaning of subpar 19(7)(b)(i) of the Act, because the required seal had not been directly affixed to it.

29                  Given the circumstances which I have described in par 17 above, I can see no justification for not treating the copy warrant as sealed in the relevant sense, simply because no seal has been directly affixed to it: see Ingram v Attorney-General for the Commonwealth [1980] 1 NSWLR 190 at 200-01 (Yeldham J), collecting also earlier authorities to the same effect.  (I note also that in Zoeller there had been produced two bundles of documents “each of which was taped together with a tape sealed with what appeared to be seals of courts in Germany” (at 284).  It was implied in passing by the Full Court (at 288) that that method of sealing satisfied subpar 19(7)(b)(i) of the Act with respect to each document in each bundle.)

30                  I turn finally to Mr Bennett’s submissions that the certification did not comply with par 19(7)(a) of the Act because it was merely initialled by a person not identified by name, and because, in any event, it had not been established that that person was an “officer” of the United Kingdom within the meaning of par 19(7)(a) of the Act.

31                  The first thing to be said about Mr Bennett’s submissions regarding the certification question is that they failed to attach any significance to the fact that par 19(7)(a) of the Act does not require that a document be certified by an officer in or of the extradition country, but only that it “purport[ ]” to be so certified.

32                  In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, Hill J was concerned with s 9 of the Corporations Law, which defined the term “statutory demand” as meaning relevantly “a document that is, or purports to be, a demand served under s 459E” (emphasis added).  There was a prescribed form of statutory demand, which form included certain notes.  Reg Russell & Sons Pty Ltd had served on Kalamunda Meat Wholesalers Pty Ltd a document which the former claimed was a statutory demand within the meaning of s 9 of the Corporations Law, even though it had not included the notes included in the prescribed form.  Hill J said (at 452),

“Two questions arise for decision.  The first is whether the demand in the present case is a ‘statutory demand’ within the meaning of the definition in s 9….

The word ‘purport’ is defined relevantly in the Macquarie Dictionary, (2nd Rev ed) as:

‘1. to profess or claim: ‘a document purporting to be official’. 2. to convey to the mind as the meaning or thing intended; express; imply.’

In some contexts the word may merely mean ‘has the effect of’: cf Joseph v Joseph [1967] Ch 78.  However, in the present context, in my view, it has its more usual meaning of ‘profess’ or ‘claim’.  On its face, the document professes to be a statutory demand made under the Corporations Law.  It does not seem to me that the fact that it omits the notes in question alters that.  It continues to profess to be a statutory demand, albeit not in precisely the prescribed form.  Accordingly I would answer the first question in the affirmative.”

33                  It appears to me that his Honour’s reasoning is equally applicable to par 19(7)(a) of the Act (and see also Rahardja, [52]).  Even if the fact that the certification was merely initialled by a person not identified by name meant that the copy warrant was not actually “certified” within the meaning of par 19(7)(a) of the Act, I am unable to see how the copy warrant would fail to profess or claim to have been certified by a Sheriff Clerk Depute.  On its face, it does profess or claim that very thing.  It would therefore comply with par 19(7)(a) of the Act (subject to the question whether the office of Sheriff Clerk Depute is an “office[ ]” within the meaning of par 19(7)(a) of the Act).

34                  Next, it appears to me that, in any event, the copy warrant was actually “certified” within the meaning of par 19(7)(a) of the Act.  Although the notion of certification is not itself defined in the Act, it appears to me that one should proceed on the basis that it was intended that any act of certification be authenticated by, for instance, signing by the certifier.  However, provided authentication of a certification by, for instance, signing, occurs, I can see no reason to imply into the notion of certification a further requirement that the certifier’s name be stated.  In the present case, I am of the view that the certification was authenticated by its being signed, the writing of one’s initials amounting to signing for the purpose.  There are many areas of the law in which it is accepted that even an express statutory requirement of authentication by signature is satisfied by initialling: see, for instance, In the Estate of AH Theakston (1956) 74 WN (NSW) 113 (FC: Street CJ, Roper CJ in Eq and Walsh J) (provision in wills legislation requiring testator’s signature on will satisfied by testator’s initialling will); Wilson v Parry (1937) 13 LGR (NSW) 196 (SC: Maxwell J) (provision in local government legislation that entry in council minute book was prima facie evidence of its contents if signed by mayor satisfied by entry initialled by mayor).  I can see no reason to treat the present area of law differently.

35                  As to Mr Bennett’s submission that it had not been established that the certifier was an “officer” of the United Kingdom within the meaning of par 19(7)(a) of the Act, I must confess to some doubt as to precisely what the meaning of that submission was.

36                  It may have been a submission that the office of Sheriff Clerk Depute was not a relevant office, because it was not “within … the prosecution service or the State department or … the Court” (to quote from Mr Bennett’s oral submissions before me).  If that was the submission, I reject it.  I do not accept that there is any limitation of the sort for which Mr Bennett contended: see Prabowo v Republic of Indonesia (1997) 74 FCR 599 (Wilcox, Moore and Tamberlin JJ); and, in any event, I infer from the name of the office and the place of certification (Aberdeen) that the office of Sheriff Clerk Depute is an office within the relevant Sheriff Court. 

37                  If, on the other hand, the submission was that it was necessary that there be evidence apart from the certification itself that the person signing it as a Sheriff Clerk Depute held that office, then I reject that submission as well, for the reason which I have already foreshadowed in par 33 above.  I note that the New South Wales Court of Appeal (Wallace P and Walsh and Holmes JJA) reached a similar conclusion in Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15.  The Court was there concerned with s 15 of the Extradition Act 1870 (UK), which provided that a warrant was authenticated if it “purports to be signed by a Judge, Magistrate or Officer of the foreign State”.  The court said (at 22) that that phrase,

“ … does not mean (as was submitted) that, although a warrant purports to be signed by a judge or officer, there must be additional independent proof that the signatory is such a judge or officer.  We think the word ‘purports’ qualifies the whole phrase which follows and not merely the words ‘to be signed’.  This we consider to be the natural meaning to be extracted from the total phrase and this construction is supported by the unlikelihood that in an Act of this sort the legislature intended that the signatory should be shown by independent evidence to be a judge or officer.”

38                  In all the circumstances, I am satisfied that the United Kingdom has produced a duly authenticated copy of a warrant issued by it for the arrest of Mr Bennett for the two fraud offences.

39                  (I add two further matters before concluding my “warrant” discussion: first, where, as in the case of the United Kingdom, an extradition country has more than one law area, I can see no justification for treating a warrant issued by one of those law areas as not being a warrant issued by the extradition country concerned for the purposes of par 19(3)(a) of the Act or for treating an officer of one of those law areas as not being an officer in or of the extradition country concerned for the purposes of par 19(7)(a) of the Act.  For the Parliament of a country like Australia, which itself has many separate law areas, to have intended the contrary in the Act might well be thought to have been perverse.  Secondly, the bundle of documents containing the copy warrant also contains a separate original document purporting to be a certificate of authentication.  It was signed legibly “Colin D Boyd”, over the words “Colin D Boyd QC, Solicitor General for Scottland [sic]”.  Mr Bennett made submissions as to the lack of effect of that document for the purposes of par 19(7)(a) of the Act, but, given the conclusion which I have reached above about the certification on the copy warrant itself, I need not deal with those submissions.)

40                  I turn now to the requirement that the extradition country produce a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence.

41                  Among the documents produced by the United Kingdom in support of its extradition request was a sworn deposition dated 16 March 1999 by Ms Val Bremner, Principal Procurator Fiscal Depute at the Procurator Fiscal’s Office in Aberdeen.  (There was, incidentally, no dispute, and I am satisfied, that Ms Bremner’s deposition was “duly authenticated” for present purposes.)  In her deposition, Ms Bremner stated,

“In Scotland, the crime of Fraud consists in the bringing about of some definite practical result by means of false pretences.

The crime of fraud is a crime which is not defined in any statutory provision but is a crime which has long been recognised and punished by the Scottish criminal courts.

Where an individual is to stand trial before a jury in Scotland, which would be the case with Mr Bennett, the document which sets forth the charges against the person accused of the crime under Scottish criminal procedure is know[n] as the ‘indictment’.

Where an individual is prosecuted in terms of an indictment in the Sheriff Court, as will be the case with Mr Bennett, the offence of fraud is punishable under the law of Scotland by deprivation of liberty for a maximum period which cannot exceed three years.

An individual convicted on indictment before a Sheriff can be remitted to the High Court of Justiciary for sentencing, in which case there is no limit on the length of custodial sentence.”

42                  It will be convenient to divide into two my discussion of the requirement that the extradition country produce a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence.

43                  First, as to the requirement that the statement set out a description of the offence, Mr Bennett submitted that Ms Bremner’s statement of that description was inadequate for the purposes of subpar 19(3)(c)(i) of the Act.  At first, I understood him to submit that that was because the statement did not refer to any statutory provision creating the offence: compare Linhart v Elms (1988) 81 ALR 557 at 582 (Gummow J).  Then, however, he conceded that such a reference could hardly have been made in the case of a common law offence (as the present one is) and that extradition for a common law offence was permissible.  He therefore relied instead on the circumstance that, although Ms Bremner had stated that the offence had “long” been recognised by the Scottish criminal courts, she had not positively stated that the offence had been in existence in 1989, nor had the United Kingdom produced any Scottish judicial decision which showed that the offence had been in existence in 1989.

44                  One answer to that submission is similar to the answer which I have already given to Mr Bennett’s submission that the original warrant was invalid under Scottish law, namely, that it is not a matter for the magistrate under subs 19(1) of the Act (or for this Court on review) to determine whether fraud was an offence under Scottish law at the relevant time.  I repeat for present purposes (see par 24 above) what was said by the Full Court in Zoeller:

“That there has been a foreign crime committed is … proved by the warrant….

…

… [T]he proceedings before the magistrate are not intended to raise the issue whether the conduct complained of was an offence under the law of the country requesting extradition.”

45                  Another, equally conclusive, answer to the submission would be to adapt to the requirement in subpar 19(3)(c)(i) of the Act what was said by Kenny J (French J (at [2]) and Marshall J (at [3]) agreeing) in McDade v United Kingdom [1999] FCA 1868 (23 December 1999, unreported) about the requirement in subpar 19(3)(c)(ii) of the Act that there be a statement setting out the conduct constituting the offence.  Her Honour said (at [17]; citations omitted),

“Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a ‘matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies’.”

46                  In my view, for the magistrate to have been required to proceed or for this Court to be required to proceed, given the absence of either an express statement by Ms Bremner to the contrary or the production of a Scottish judicial decision which showed the contrary, on the basis that the offence of fraud is a development of the Scottish common law which has occurred only since 1989 would have been or would be to carry to absurd lengths overzealousness in discerning deficiencies in the relevant statement, given also Ms Bremner’s express statement that the offence of fraud had long been recognised in the Scottish courts.  (Again, I am not surprised to note in the evidence of Associate Professor Findlay the absence of any suggestion that the offence of fraud is so recent an invention of the Scottish common law.)

47                  Next, as to the requirement that the statement set out the penalty applicable in respect of the offence, as with the requirement that the statement set out a description of the offence, Mr Bennett submitted that Ms Bremner’s statement of the penalty applicable in respect of the offence was inadequate for the purposes of subpar 19(3)(c)(i) of the Act.

48                  The submission was to the effect that the Sheriff Court’s power to impose a three year sentence for fraud had first been conferred on it by statute in 1995, that a power first conferred on it in 1995 could not be exercised by it in respect of an offence committed in 1989 and that “in 1989 the penalty was substantially less” (which I understood to mean that if the Sheriff Court were now to sentence someone for an offence of fraud committed in 1989, the Sheriff Court would only have power to impose a sentence on that person of “substantially less” than three years).  Therefore, Ms Bremner had been wrong when she had stated, in her statement of the penalty applicable in respect of the offence, that the penalty for fraud under Scottish law was three years.

49                  As with two other submissions by Mr Bennett with which I have already dealt, the submission of Mr Bennett with which I am presently dealing proceeded on the misconception that it was for a magistrate under subs 19(1) of the Act or for this Court on review under subs 21(1) of the Act to judge the correctness of Ms Bremner’s assertion as to the penalty applicable under Scottish law in respect of the offence of fraud.  It was not and is not.

50                  I have already referred (see par 3 above) to the statement in Zoeller that one of the constituent matters to be determined in deciding whether a person in respect of whom an extradition request has been made is eligible for surrender is whether the offence concerned is one which qualifies as an “extradition offence”.  In relation to the United Kingdom, that term means relevantly an offence against a law of that country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 2 years: see subpar (a)(i) of the definition of “extradition offence” in s 5 of the Act; pars 11(1)(b) and 55(a) of the Act; reg 5 of the Regulations; and Pt 1 of the Schedule to the Regulations.

51                  According to Zoeller (at 300), “That the offence is an extraditable [plainly, ‘extradition’ was meant] offence is proved by the s 19(3)(c)(i) document”.  That statement was made in the course of a passage which began with the statement, “The magistrate is no expert in foreign law”.  It appears to me to be plain that the Full Court contemplated an exercise by the magistrate which involved acceptance of the correctness of the requesting country’s statement as to the penalty applicable in respect of the offence and, in the light of that statement, a consideration only of the question whether the maximum penalty for the offence, as stated by the requesting country, met the test of an “extradition offence”.

52                  In any event, even if it had been open to Mr Bennett to attack the sufficiency of Ms Bremner’s statement as to the penalty applicable in respect of the offence by showing that it was erroneous as a matter of Scottish law, Mr Bennett’s submission in that respect was misconceived in a number of ways. 

53                  First, Ms Bremner had not stated that the applicable penalty for the offence of fraud was three years.  It is apparent from her statement that, according to her understanding of Scottish law, the penalty applicable under that law in respect of fraud was an unlimited term of imprisonment, although only the High Court of Justiciary had the power to impose such a sentence.  If, instead, the sentence was being imposed by a Sheriff Court, it had the power to impose only a three year sentence.  (I note that, according to his evidence before the magistrate, Associate Professor Findlay’s understanding of the matter was the same as that which I have attributed to Ms Bremner.  Associate Professor Findlay, however, attributed a different understanding to Ms Bremner, because he mistakenly read a handwritten addition to her deposition as having been made by someone else, when it was plainly made by her, as appears from the fact that it is in her hand and bears her initials.)

54                  Secondly and in any event, while the power of the Sheriff Court is limited to imposing a three year sentence for fraud, nothing in the materials before the magistrate supports Mr Bennett’s submission that that was a newly-conferred power as of 1995 and that, before that time, the Sheriff Court had only had power to impose some substantially lesser sentence.  Certainly, Associate Professor Findlay had expressed no such view before the magistrate, although Mr Bennett submitted before me that he had.  In fact, in his written opinion, Associate Professor Findlay had instead stated that the imposition of a three year sentence “is the traditional jurisdictional limit of the Sheriff’s [sic] Court” (my emphasis).

55                  It appears that the genesis of Mr Bennett’s belief that, before 1995, the Sheriff Court had only had power to impose some substantially lesser sentence than three years for the offence of fraud was two pages which he handed to me during argument, but which pages, so far as I can tell from the evidence before me, had not been in evidence before the magistrate (or even sought unsuccessfully to be put into evidence before her).  The first of those pages was an undated cover sheet, suggesting that what succeeded it was a product of the Crown Office and consisted of those provisions of the Criminal Procedure (Scotland) Act 1975, as amended until 1980, which were concerned with solemn procedure.  The second of those pages appears to have contained s 221 of that Act.  Subsection (1) of that section was apparently as follows:

“No person shall be sentenced by a court to penal servitude; and every enactment conferring power on a court to pass a sentence of penal servitude in any case shall be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before 12^th June 1950:

Provided that nothing in this subsection shall be construed as empowering a court, other than the High Court[,] to pass a sentence of imprisonment for a term exceeding two years.”

56                  Mr Bennett’s position seems to have been that the proviso to s 221(1) which I have just quoted had the effect that the Sheriff Court had had no power in 1989 to impose a sentence of three years’ imprisonment for the offence of fraud.

57                  Of course, because of the provisions of subs 21(6) of the Act, I cannot have regard to the two pages which Mr Bennett handed to me.  However, if I could have had regard to them, I would have made the following comments on them.  First, the present question is not one of the power of the Sheriff Court to impose any particular sentence for fraud, but rather of the maximum penalty which can be imposed for that offence, whether by the Sheriff Court or by the High Court of Justiciary.  Secondly, accepting the two pages at face value, I have no idea whether the second of them represented the law in 1989, as well as in 1980.  Thirdly, the proviso to s 221(1) only had the effect that a certain conferral of power which preceded it in the subsection was not to be construed in a certain way; the preceding conferral of power was one in substitution for an earlier statutory conferral of power; and I have nothing before me to suggest that there existed any earlier statutory conferral of power on the Sheriff Court to pass a sentence of penal servitude for the offence of fraud.  Fourthly, even if the effect of the proviso to s 221(1) was that the Sheriff Court had only had the power in 1989 to impose a two year sentence for the offence of fraud and the scope of the power of the Sheriff Court in that regard was determinative, still the fact that a two year sentence might be imposed would be sufficient to make an offence an “extradition offence” so far as extradition to the United Kingdom is concerned.

58                  The last point which I have made suggests to me that now would be a convenient time, before dealing with the third class of supporting document which the United Kingdom was required to produce, to dispose of the question whether the offence of fraud under Scottish law is an “extradition offence” (see the first matter referred to in Zoeller at 303-04).  Given that, according to Ms Bremner (and, as well, Associate Professor Findlay), the maximum penalty applicable in respect of that offence is an unlimited term of imprisonment, it seems obvious that it is.

59                  Although I did not understand Mr Bennett expressly to submit to the contrary, it appears to me that there was, running throughout his submissions, an implication to the contrary with which I should deal.  Mr Bennett appeared to be of the view that if I were satisfied that the maximum penalty which could actually be imposed on him by the Sheriff Court if he were now to be convicted of fraud in Scotland would be less than two years (because, for instance, the Sheriff Court was required by Scottish law to give Mr Bennett credit for time spent in pre-trial custody), then it would follow that I would be satisfied that the offence of fraud was not an “extradition offence” in his case.

60                  If that was in fact Mr Bennett’s position, then I reject it.  In my view, the question whether an offence is an “extradition offence” is to be determined at the level of the general, rather than at the level of the particular, as is made apparent by the statement in Zoeller which I have quoted in par 51 above.

61                  I turn now to the third class of supporting document required to be produced, the duly authenticated statement in writing setting out the conduct constituting the offence.

62                  It is convenient to begin my discussion of that requirement by returning yet again to Zoeller.  In that case (at 297), the Full Court explained what the necessary “conduct” statement entailed, saying,

“[W]hat has to be produced … is relevantly a statement of the acts or omissions, or both, by virtue of which the offence is alleged to have been committed. … What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere re-statement of the charge in respect of which extradition is sought.”

Earlier in its reasons (at 294), the Full Court had also drawn a distinction between, on the one hand, “the elements or ingredients of the offence” and, on the other hand, the “particular evidence adduced to prove those acts or omissions”.

63                  The Full Court also explained the relevant purpose of the “conduct” statement, in a passage from which I have already quoted more than once in these reasons.  It said (at 300),

“That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated.  What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii)….  All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.”

In fulfilling that requirement, the magistrate is determining whether he or she is satisfied that double criminality exists, as required by par 19(2)(c) of the Act.

64                  Mr Bennett’s submissions on the “conduct” statement requirement focused first on Ms Bremner’s deposition, as to which his position was that it “does not adequately fulfil the requirements of s 19(3)(c)(ii) as the conduct of [‘constituting’ was meant] the offences alleged in the warrant is not outlined in this statement”.

65                  Next, Mr Bennett submitted that the deficiency which he alleged existed in Ms Bremner’s deposition could not be overcome by reliance, for the purpose of subpar 19(3)(c)(ii) of the Act, on certain other documents in the nature of witness statements which the United Kingdom had produced, which documents, according to Mr Bennett, had been produced by it for the purpose of its complying with subreg 6(1) of the Regulations.  That provision required the United Kingdom to produce, “in addition to the supporting documents within the meaning of paragraph 19(2)(a) of the Act, documents that allow the sufficient evidence test to be satisfied”.  Mr Bennett submitted that the effect of the words which I have just quoted was that no document produced in order to allow the sufficient evidence test to be satisfied could also qualify as a supporting document within the meaning of par 19(2)(a) of the Act.  He further submitted, relying on the distinction made in Zoeller to which I have already referred above between “the elements or ingredients of the offence” and the “particular evidence adduced to prove those acts or omissions”, that, even ignoring the terms of subreg 6(1) of the Regulations, witness statements could not satisfy the “conduct” statement requirement.

66                  It is convenient to deal first with the last of Mr Bennett’s submissions which I have just set out.

67                  It appears to me that acceptance of that submission is compelled by the decision of a Full Court of this Court in De Bruyn v Republic of South Africa [1999] FCA 1344 (Hill, Hely and Gyles JJ, 29 September 1999, unreported).  In that case, the requesting country had produced in support of its request for surrender a draft indictment, together with witness statements which would be tendered on a trial of De Bruyn, assuming it took place.  In joint reasons for judgment, Hill and Hely JJ said (at [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.”

68                  Their Honours therefore considered that the witness statements should not be taken into account for the purpose of determining whether the Republic of South Africa had satisfied its obligation to produce a “conduct” statement, although the draft indictment should.  Their Honours were further satisfied that the draft indictment did qualify as a “conduct” statement.

69                  Next, I deal with Mr Bennett’s submission that Ms Bremner’s deposition does not of itself constitute the necessary “conduct” statement.

70                  Those portions of Ms Bremner’s deposition to which it appears to me to be necessary to refer for present purposes are as follows:

“I confirm that, on the basis of the evidence presently available against Mr Bennett, under Scots Law a jury would be entitled to infer from the whole circumstances surrounding the proposed sale of a share of the helicopter to Mr Gillanders by Mr Bennett that the necessary intention to defraud Mr Gillanders existed.  This is particularly so on the basis that Mr Bennett had signed a mortgage agreement in relation to the said helicopter, a copy of which now forms Production No 3[,] which agreement was signed by Mr Bennett before he made the offer to sell to Mr Gillanders and which agreement prevented Mr Bennett from legitimately transferring or seeking to transfer a share in the helicopter to a third party.

The pretence in relation to the helicopter on the part of Mr Bennett was that he was legally in a position to transfer ownership of a part of the helicopter to Mr Gillanders.

In relation to the Lambourghini [sic] motor vehicle, I confirm that, on the basis of the evidence presently available concerning Mr Bennett’s offer to jointly purchase such a vehicle with Mr Gillanders and the subsequent disappearance of Mr Bennett and non appearance of the vehicle, under Scots Law, a jury would be entitled to infer that Mr Bennett’s offer to jointly purchase such a vehicle with Mr Gillanders with a view to subsequent resale for profit also constituted a pretence, on this occasion the pretence being that Mr Bennett was in a position to legitimately obtain such a vehicle.

…

The circumstances described in the depositions of David Francis Alexander Barry Gillanders, Nicola Anne Farquhar or Liddle, Ian Horne, Patrick Denis Controy [sic] and acting Detective Inspector John McMann would, if proved, entitle a criminal court in Scotland to convict the said Paul James Bennett of the crimes described in the said petition and warrant.”

71                  In McDade,the Full Court accepted that there were certain “qualitative” standards which must be met by a purported “conduct” statement.  Kenny J said (at [16]-[17]),

“What is being sought [by the statutory requirement] is a clear and coherent statement of the actual acts and omissions which are said to constitute the offence.  The statement must ‘speak with sufficient specificity’ and coherence to serve its purpose….

Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified.”

Later (at [29]-[30]), her Honour dealt with a submission that a document said to amount to a “conduct” statement was required to be self-contained; it could not incorporate by reference other documents.  As to that submission, she said,

“I do not think that there is any merit in that submission.

Section 19(3)(c)(ii) requires a ‘statement in writing’ of relevant matters.  Nothing in the Act expressly requires the statement to be contained in only one document.  There is, it seems to me, no justification in principle or in practice for any such requirement.  Indeed, the Court has accepted that a statement for s 19(3)(c)(ii) purposes may be constituted by a number of documents….  The critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts or omissions, being acts and omissions which are readily and clearly identifiable by reference to those documents.”

72                  Even acknowledging the ability of a purported “conduct” statement to incorporate other documents by reference (although such incorporated documents apparently could not, consistently with De Bruyn, include witness statements or documents which would have evidentiary value at a trial), I do not accept that the extracts from Ms Bremner’s deposition which I have quoted above do constitute the necessary “conduct” statement.

73                  Thus, I have accepted, so far as they went, Mr Bennett’s submissions about satisfaction of the “conduct” statement requirement, agreeing that the witness statements and Ms Bremner’s deposition were inadequate in that respect.  The difficulty with Mr Bennett’s submissions in that respect, however, was that they did not go far enough.  They ignored the availability, for the purposes of subpar 19(3)(c)(ii) of the Act, of the warrant, in so far as the warrant incorporated by reference the contents of the petition.

74                  In Zoeller, the Full Court accepted (at 288-89) that a duly authenticated copy warrant, as well as satisfying the requirement that the type of supporting document referred to in par 19(3)(a) of the Act be produced, could simultaneously satisfy the requirement that the type of supporting document referred to in subpar 19(3)(c)(ii) of the Act be produced (as well as the requirement that the type of supporting document referred to in subpar 19(3)(c)(i) of the Act be produced).  It is apparent, from the Full Court’s view in Zoeller that a warrant may simultaneously be a supporting document of the type referred to in par 19(3)(a) of the Act and a supporting document of the type referred to in subpar 19(3)(c)(ii) of the Act, that, in the present matter, the copy warrant, in so far as it incorporated by reference the contents of the copy petition to which I have referred above, may be an adequate “conduct” statement for the purposes of subpar 19(3)(c)(ii) of the Act.

75                  Further, even if one were to ignore the fact that the warrant incorporated by reference the contents of the petition and were to focus simply on the petition itself, I am unable to see why that document alone would not be an adequate “conduct” statement for present purposes.  As I have already noted, in De Bruyn, a draft indictment was held to be an adequate “conduct” statement.  I am unable to see any relevant difference for present purposes between the petition in the present case and the draft indictment in De Bruyn.  The petition appears to me to satisfy those “qualitative” standards for a “conduct” statement of which Kenny J spoke in McDade (see par 71 above).

76                  In the course of his submissions, Mr Bennett drew particular attention to the fact that, in McDade, the document relied on as the necessary “conduct” statement had been a statement made by a Detective Inspector of the London Metropolitan Police Service, which statement had been nineteen pages long and had contained 126 paragraphs.  He also emphasised that, in McDade, the requesting country was the United Kingdom, just as in his case.  The implication seemed to be that the statement which had been held to pass muster in McDade represented the minimum which was acceptable as a “conduct” statement when the United Kingdom was the requesting country.  If that was the implication, then I reject it.

77                  I will therefore proceed hereafter on the basis that either the warrant, in so far as it incorporates the petition, or the petition itself constitutes the necessary “conduct” statement.

78                  It is convenient now to turn to the double criminality question referred to in Zoeller at 299, which question is to be answered by reference to the “conduct” statement which I have just been discussing.

79                  The double criminalityrequirement is imposed by par 19(2)(c) of the Act.  For present purposes, that provision requires me to be,

“… satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia….”

80                  I must therefore now ask myself whether I am satisfied that the conduct alleged against Mr Bennett in the petition would, if it had taken place in New South Wales at the date when the extradition request in relation to Mr Bennett was received, have constituted extradition offences in relation to New South Wales.  Although I have no evidence as to the precise date when the extradition request in relation to Mr Bennett was received, according to Mr Bennett’s submissions, that date was 11 February 1999 and I am prepared to proceed on the basis that that was so.  (I add that no need arises in the present circumstances to consider conduct equivalent to that alleged against Mr Bennett in the petition: see Linhart for a discussion of the relevant notion of equivalence in the predecessor of the Act.)

81                  According to the United Kingdom’s submissions before me, the conduct alleged against Mr Bennett would, if it had taken place in New South Wales at the date when the extradition request in relation to Mr Bennett was received, have constituted extradition offences in relation to New South Wales by reason of its amounting to offences against s 178BA of the Crimes Act 1900 (NSW) (“the Crimes Act”).  That section provides as follows:

“Obtaining money etc by deception

178BA. (1) Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years.

(2) In subsection (1):

‘deception’ means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:

(a)       a deception as to the present intentions of the person using the deception or of any other person….”

82                  Prima facie, the United Kingdom’s submission appears correct, but Mr Bennett raised two arguments in his oral submissions as to why I should not be satisfied that the double criminality requirement had been met.

83                  First, he argued that the conduct which was alleged against him as offences under Scottish law involved the obtaining of money in England, rather than in Scotland.  Therefore, when the double criminality requirement was being considered, the conduct alleged against him should, by analogy, be treated as involving the obtaining of money somewhere outside New South Wales.  However, said Mr Bennett, s 178BA of the Crimes Act did not apply to the obtaining of money anywhere outside of New South Wales.

84                  I reject that argument for two independent reasons.  (Before explaining those reasons, however, I should point out that, while the fraud charge against Mr Bennett involving the car (see par 13 above) did allege payment to Mr Bennett by transferring funds into an account held by him in England, the fraud charge against him involving the helicopter did not allege the making of any payment outside Scotland.)

85                  My first reason for rejecting the double criminality argument by Mr Bennett which I am presently discussing is that it flies in the face of the terms of par 19(2)(c) of the Act, which I have set out in par 79 above.  That provision expressly requires in the present context an assumption that Mr Bennett’s conduct constituting fraud under Scottish law “had taken place in the part of Australia where the proceedings are being conducted”, in other words, in New South Wales.  That is an assumption which, since it applies to “the conduct constituting the offence[s]”, encompasses any obtaining which is part of that conduct. 

86                  My second reason for rejecting the double criminality argument by Mr Bennett which I am presently discussing is that, even if one were to proceed on the basis that the obtaining did occur somewhere outside New South Wales, still an offence against s 178BA of the Crimes Act would have been committed, provided that the deception had occurred in New South Wales (as to which, see below).  That result flows from s 3A of the Crimes Act, which provides relevantly as follows:

“Territorial application of the criminal law of the State

3A. (1) An offence against the law of the State is committed if:

(a)       all elements necessary to constitute the offence (disregarding territorial considerations) exist; and

(b)       a territorial nexus exists between the State and at least one element of the offence.

(2) A territorial nexus exists between the State and an element of an offence if:

(a)               the element is or includes an event occurring in the State; or

(b)               the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State.

…

(10) In this section:

‘event’ means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind)….”

87                  It is true that, in the absence of s 3A of the Crimes Act, s 178BA of the Crimes Act would have applied only if the obtaining had occurred in New South Wales: see Kron (1995) 78 A Crim R 474 (NSWCCA: Gleeson CJ, Simpson J and Barr AJ). However, as Gleeson CJ (with whom Simpson J and Barr AJ agreed (see at 479)) pointed out in Kron (at 476), that case concerned an offence allegedly committed before s 3A of the Crimes Act had commenced operation.  His Honour then continued, “Indeed, counsel observed in argument that cases such as the present explain the reason for the enactment of s 3A” of the Crimes Act, an observation with which I agree.  (See also the discussion by Gleeson CJ in Lipohar v The Queen (1999) 168 ALR 8 at 13, [18]-[20], both of the general rule of construction applicable to provisions like s 178BA of the Crimes Act and of the effect on such provisions of provisions like s 3A of the Crimes Act.)

88                  (I should perhaps add here that it may have been (I am not sure) implicit in Mr Bennett’s argument which I have just been discussing that the conduct alleged against him was not fraud under Scottish law, in so far as that conduct involved obtaining in England.  If that was implicit in the argument, I reject it, since, as I have already pointed out more than once, questions of Scottish law are not for me.  (In any event, as with other points with which I have already dealt which were made by Mr Bennett about Scottish law, nothing in Associate Professor Findlay’s evidence suggested that fraud under Scottish law could not encompass a false pretence in Scotland leading to an obtaining in England.))

89                  Mr Bennett’s second oral argument as to why I should not be satisfied that the double criminality requirement had been met was that “there is no evidence anywhere where the alleged deception[s] or false pretences have occurred”.  They might, according to the evidence before me, said Mr Bennett, have occurred outside Scotland and s 178BA of the Crimes Act did not apply to deceptions occurring outside New South Wales.

90                  I reject that argument, not only for the first of the two reasons for which I rejected Mr Bennett’s first double criminality argument, but also because it is based on the misconception that I am to look beyond the “conduct” statement under par 19(3)(c)(ii) of the Act in order to determine what is the relevant conduct for the purpose of deciding whether double criminality exists.  Such an argument was rejected in De Bruyn.  When one examines the “conduct” statement in the present matter, namely, the warrant incorporating the petition or alternatively the petition itself, one finds that it was alleged that the false pretences in the present case did occur in Scotland.

91                  I have above been dealing with the two double criminality arguments which Mr Bennett made orally.  There were, however, also written submissions by Mr Bennett on the double criminality question, which submissions, as well as containing the two points dealt with by Mr Bennett orally, also contained three points not so dealt with.  I do not know whether or not I was intended to treat those points as abandoned by Mr Bennett, but, in case I was not intended to do so, I make the following comments about them.  Two of them proceeded on the misconception to which I have referred in the preceding paragraph and, for that reason, I need say nothing further about them than what I have already said in that paragraph.  The one of them which does not fall into that category was a submission that “a false representation as to the future is not triable” and about that point it is necessary that I should say more.

92                  The genesis of the point which I have just mentioned appears to have been the decision of a Divisional Court of the Queen’s Bench Division (Lord Parker CJ, Edmund Davies LJ and Widgery J) in Reg v Governor of Brixton Prison, Ex parte Gardner [1968] 2 QB 399, a case mentioned in Mr Bennett’s written submissions.  In that case, the Divisional Court held that a person was not eligible for surrender to New Zealand, the requesting country, because the offences with which he was charged in New Zealand involved the obtaining of property by knowingly false representations as to future conduct.  Because, said the court, English criminal law did not proscribe the use of knowingly false representations as to future conduct in order to obtain property, but only the use of knowingly false representations as to present fact, the required double criminality did not exist.

93                  However, neither that decision nor Mr Bennett’s point that “a false representation as to the future is not triable” is of any real relevance for present purposes.  I have already quoted the terms of s 178BA of the Crimes Act (see par 81 above) and, in particular, the definition of “deception” in subsection (2) as meaning “deception … as to fact or as to law, including … a deception as to the present intentions of the person using the deception ….” There can be no doubt that when that definition refers to “deception … as to fact”, it is referring at least to those sorts of knowingly false representations as to fact which would have amounted to a false pretence for the purpose of traditional offences like that contained in s 179 of the Crimes Act.

94                  In the present instance, what was alleged against Mr Bennett in the case of each of the two offences (see par 13 above) was his pretending that he “was in a position to” do certain things.  As to the first of those offences, the allegation was one of a knowingly false representation as to fact which would have amounted to a false pretence for the purpose of traditional offences like that contained in s 179 of the Crimes Act: see Greene v The King (1949) 79 CLR 353 at 363-64 (Dixon J).  As to the second of those offences, the allegation either was one of a knowingly false representation as to fact which would have amounted to a false pretence for the purpose of traditional offences like that contained in s 179 of the Crimes Act: see R v Timperon (No 2) (1976) 15 SASR 1 (FC); or, alternatively, was one of a “deception …as to law”.

95                  It is true that, in the case of one of the two offences, there was a further allegation of Mr Bennett’s pretending that he “was prepared to” do a certain thing.  That may or may not have been an allegation of a representation which would have amounted to a false pretence for the purpose of traditional offences like that contained in s 179 of the Crimes Act (see, in particular, the discussion in Greene at 364 (Dixon J), 366-67 (McTiernan J (dissenting)) and 369 (Webb J (dissenting)) of R v Gordon (1889) 23 QBD 354).  However, even if it was not, it was in any event an allegation of a deception within the meaning of s 178BA(2) of the Crimes Act, being an allegation of a deception “as to the present intentions of” Mr Bennett.  Further, even if it had not been an allegation of a deception within the meaning of s 178BA(2) of the Crimes Act, its failure to qualify as such a deception would have been irrelevant.  That would be so because, when considering whether the double criminality requirement has been satisfied, one need not find a local offence which involves all of the conduct alleged against the person in the requesting country.  It is sufficient that part only of that conduct would amount to a local offence: see par 10(3)(a) of the Act and United States v Holt (1994) 49 FCR 501 (Foster, Heerey and Whitlam JJ).

96                  It is convenient now to turn to the “extradition objection” question referred to in Zoeller at 299.

97                  The “extradition objection” matter is dealt with in par 19(2)(d) of the Act.  For present purposes, that provision imposes, as a condition of eligibility for surrender, a requirement that I not be satisfied by Mr Bennett “that there are substantial grounds for believing that there is an extradition objection in relation to the offence[s]”.  The notion of an extradition objection is dealt with in s 7 of the Act, which provides relevantly:

“For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

…

(e)        the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.”

98                  Mr Bennett did not submit before me that he had been either acquitted or pardoned by a competent tribunal or authority in the United Kingdom or Australia in respect of either the two Scottish fraud offences or other offences constituted by the same conduct as constitute those offences.

99                  Nor did Mr Bennett submit before me that he had been convicted by a competent tribunal in the United Kingdom or Australia in respect of either the two Scottish fraud offences or other offences constituted by the same conduct as constitute those offences.

100               Mr Bennett did, however, submit before me that, nonetheless though he had not been convicted in respect of any relevant offence, there were substantial grounds for believing that he had already, within the meaning of par 7(e) of the Act, “undergone the punishment provided by the law of” the United Kingdom “in respect of the extradition offence[s]”.  That was because there was a real chance that he had already spent in custody in respect of those offences, both in the United Kingdom and Australia, a period of time at least equal to any period of imprisonment to which he would be sentenced if convicted of those offences in Scotland.  Further, the notion in par 7(e) of the Act of “undergo[ing] punishment” was to be construed as spending time in pre-trial custody in respect of an extradition offence.  It should be so construed so as to avoid doubtful eligibility for surrender.

101               Mr Bennett sought to support his argument regarding the meaning of the notion in par 7(e) of the Act of “undergo[ing] punishment” by referring to the reasons for judgment of Drummond J in Foster v Minister for Customs and Justice (1999) 164 ALR 357.  In that case, there was a challenge to the validity of a decision by the respondent on behalf of the Attorney-General to surrender a person to the United Kingdom, it having already been determined that that person was eligible for such surrender.  Subregulation 7(1) of the Regulations prohibited the person’s surrender if the Attorney was satisfied, among other things, that it would “be … too severe a punishment to surrender the eligible person….” The applicant had spent time in custody in Australia as a result of the request for his surrender and Drummond J referred (at 374, [65]) to,

“… the comparison that is required to be made by reg 7, viz, a comparison between the actual sentence the United Kingdom court is likely to impose and the circumstance of present relevance—the punishment the applicant had already suffered by way of loss of liberty while awaiting extradition.”

102               It is unnecessary that I decide whether there is a real chance that Mr Bennett has already spent in custody in respect of the two Scottish fraud offences a period of time at least equal to any period of imprisonment to which he would be sentenced if convicted of those offences in Scotland.  That is because I reject the construction of par 7(e) of the Act on which Mr Bennett relies as the basis for his submission.

103               I accept that the notion of “undergo[ing] punishment” in par 7(e) of the Act should be construed so as to avoid doubtful eligibility for surrender.  However, I am in no doubt that, on its proper construction, the “punishment” being referred to in par 7(e) of the Act is punishment to which the person has been sentenced following conviction for the relevant offence.  That is the plain meaning of the word in the context in which it appears in par 7(e) of the Act, which paragraph is obviously directed to issues of double jeopardy.  That plain meaning is confirmed by the explanatory memorandum for the Bill which became the Act, which memorandum stated relevantly:

“There is an extradition objection if … the person has already been dealt with by a competent tribunal in the requesting country or in Australia for the offence for which extradition was requested (or any other offence constituted by the same conduct) where that tribunal has … acquitted the person or where the person has fully served a sentence imposed by the tribunal in respect of the relevant conduct….”

104               (I add, incidentally, that the reason why par 7(e) of the Act refers to the person’s having undergone the punishment provided by the law of the extradition country or of Australia, rather than referring merely to the person’s having been convicted by a competent tribunal in a relevant country, is in order to ensure that a person who has been convicted cannot avoid extradition by reason of that fact alone, but must also have served the sentence imposed as a result of that conviction.  If it were otherwise, even a person who had absconded after conviction, but before sentencing, or a person who, having been sentenced to imprisonment and having begun to serve that imprisonment, had escaped from prison and then absconded could avoid extradition in reliance on the fact of his or her conviction: see, generally, Aughterson Extradition: Australian Law and Procedure 1995 at pp. 121-22.)

105               As to what was said by Drummond J in Foster, I add that I have found it of no assistance, given its very different context, on the question of the proper construction of the notion in par 7(e) of the Act of “undergo[ing] punishment”.  I add also that, in any event, Drummond J’s decision was later the subject of an appeal to a Full Court of this Court (Carr, Moore and Kiefel JJ) in Foster v Senator Amanda Vanstone [1999] FCA 1447 (22 October 1999, unreported).  Although his Honour’s judgment was affirmed on appeal (by majority; Carr J dissenting), the majority rejected his comparative approach to the “too severe a punishment” issue which I have quoted in par 101 above.  The Full Court’s decision was itself the subject subsequently of an appeal to the High Court of Australia. On 21 June 2000, that appeal was dismissed (Gleeson CJ and Gaudron, McHugh and Hayne JJ; Kirby J dissenting), although reasons for the High Court’s judgment are not yet available. 

106               I turn now to Mr Bennett’s submission that the proceedings before the magistrate were an abuse of process on the part of the United Kingdom, of which submission I will dispose briefly and without going into the facts relied on by Mr Bennett in support of the submission.

107               The question of this Court’s ability to determine whether proceedings before a magistrate under subs 19(1) of the Act will be, are or were an abuse of process has been in recent years the subject of discussion in numerous cases before this Court, including before Full Courts of this Court.  The relevant authorities are as follows: Pap[a]zoglou v Republic of the Philippines (1997) 74 FCR 108 at 140-41 (Wilcox, Tamberlin and Sackville JJ); McDade v Attorney-General of the Commonwealth (FCA: RD Nicholson J, 1 May 1998, unreported) at 8-9; Dutton v Republic of South Africa (1999) 84 FCR 291 at 300-01, [15]-[16]  (Burchett J); Dutton v Republic of South Africa (1999) 162 ALR 625 at 637, [40] (Branson J); and Dutton v Republic of South Africa (1999) 92 FCR 575 at 579, [15]-[16] (Wilcox, Whitlam and Moore JJ).  (The second of those cases was related to the Full Court’s McDade decision mentioned earlier, but the latter was not an appeal from the former; the third, fourth and fifth of those cases were related to one another and to Hill J’s Dutton decision mentioned earlier; and the fifth of those cases was an unsuccessful appeal from the fourth of those cases.)

108               The effect of those authorities is that the question whether s 19 proceedings before a magistrate will be, are or were an abuse of process is not one for this Court.  I am therefore obliged to reject Mr Bennett’s abuse of process submission without further consideration of it.

109               I come finally to the matter referred to in Zoeller at 303-04 as the “sufficient grounds” matter.

110               In order to understand how that matter arises in the present case, it is necessary to trace a path through a complicated series of legislative provisions, to some of which I have already referred above in other connections.  First, one goes to subs 19(2) of the Act.  I have already dealt with various conditions of extradition eligibility imposed by that provision, namely, the “supporting documents” requirement (par (a)), the double criminality requirement (par (c)) and the no-“extradition objection” requirement (par (d)).  The remaining requirement referred to in subs 19(2), and the only one to which I have not yet referred, is the conditional requirement which appears in par (b) thereof as follows:

“… where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production … of any other documents—those documents have been produced….”

Next, one goes to par 11(1)(b) of the Act, which provides in effect that the regulations may make provision to the effect that the Act applies in relation to a specified extradition country subject to limitations, conditions, exceptions or qualifications.  Then, one goes to par 55(a) of the Act, which authorises the Governor-General to make regulations not inconsistent with the Act prescribing matters permitted by the Act to be prescribed.  Next, one goes to subregs 6(1) and (2) of the Regulations, which provide:

“(1) The Act applies in relation to each Commonwealth country specified in Part 1 of the Schedule [of which the United Kingdom is one] subject to the limitation, condition, exception or qualification that the documents required to be produced to a magistrate for the purposes of subsection 19 (1) of the Act are, in addition to the supporting documents within the meaning of paragraph 19 (2) (a) of the Act, documents that allow the sufficient evidence test to be satisfied.

(2) In subregulation (1), a reference to the sufficient evidence test being satisfied is a reference to that test being satisfied as referred to in paragraph 11 (5) (a) of the Act.”

Finally, one goes to s 11 of the Act.  Subsections (4) and (5) thereof provide:

“(4)     Where, by virtue of [regulations made in reliance on] subsection (1) …, this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facieevidence test is satisfied.

(5)       For the purposes of subsection (4):

            (a)        a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to:

            (i)         justify trial of the person in relation to an offence against a law in force in the part of Australia;

            (ii)        justify committal of the person for trial in relation to such an offence; or

            (iii)       establish a prima faciecase that the person committed such an offence; and

(b)       a reference to the prima facieevidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence.”

111               The effect of the provisions of s 11 of the Act and of reg 6 of the Regulations which I have just quoted was discussed by a Full Court of this Court in Ujiie v Republic of Singapore (1996) 66 FCR 323 (Lockhart, Burchett and Lindgren JJ).  The relevant provisions were then in a form materially identical to their present form and the position regarding Singapore was and is materially identical to that of the United Kingdom.  The effect of the provisions was said by Burchett J (at 326), with whom Lockhart and Lindgren JJ agreed (see at 324 and 334 respectively), to be that the test to be satisfied for an extradition request by Singapore was the “prima facie evidence test” as defined in par 11(5)(b) of the Act.  Burchett J continued,

“The question to be asked is whether the evidence provided in support of the [person’s] extradition would, if his [or her] conduct had taken place in a part of Australia, and if the evidence were uncontroverted, provide sufficient grounds to put him [or her] on trial, or sufficient grounds for inquiry by a court, in relation to the offence.”

Burchett J later (at 327) said that, in Wentworth v Rogers [1984] 2 NSWLR 422 at 429, “Glass JA was concerned with the very question that s 11(5)(b) raises”, mutatis mutandis.  Glass JA had there been describing the function of a magistrate in a committal hearing in New South Wales at the close of the prosecution’s evidence.  He had said (references omitted),

“The powers of the magistrate at the close of evidence for the prosecution are not open to doubt….  He [or she] is required to rule upon the sufficiency of the evidence.  Accordingly he [or she] must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution….  It is not his [or her] function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it.  He [or she] is required to assume that it is accepted without reservation by a jury….  Upon that assumption he [or she] asks himself [or herself] whether a jury accepting all the prosecution evidence could lawfully convict the defendant,  … ie could acting reasonably be satisfied of the defendant’s guilt beyond reasonable doubt.  Another formulation of the question is whether the evidence adduced by the prosecution is capable of producing satisfaction beyond reasonable doubt in the minds of a reasonable jury.  Whether he [or she] would be so persuaded by the evidence to that degree or at all is not to the point.  If he [or she] is of opinion that an inference of guilt may properly be drawn, the evidence is sufficient and a prima facie case has been made out.”

112               It will therefore be necessary for me to approach the “sufficient grounds” matter in the manner just described.  In doing so, I will be considering whether the United Kingdom has produced documents which would be evidentiary of a prima facie case of the commission by Mr Bennett of two offences against s 178BA of the Crimes Act, provided one were to ignore the territorial aspects of that evidence.  As was said in Holt at 504-05,

“The ‘offence’ referred to at the conclusion of s 11(5)(b) is the notional Australian offence, that is to say the ‘extradition offence’ which the conduct of the person would have constituted had it taken place in Australia, within the meaning of s 19(2)(c).”

113               (It is probably convenient to mention now that, in his submissions on the “sufficient grounds” matter, Mr Bennett relied on the decision of Wilcox J in Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358.  However, that decision did not concern the Act (which had not yet been enacted), but rather Art XI(1) of the extradition treaty between Australia and Italy, which Article made applicable for relevant purposes a stricter test from the requesting country’s point of view than the one appearing in par 11(5)(b) of the Act: see at 379.  For that reason, Prevato is of no relevance for present purposes and Mr Bennett’s attempted reliance, based on Prevato, on the fact that, in particular, Mr Gillanders was deposing in his deposition to matters which, on Mr Gillanders’ account, had occurred almost ten years earlier cannot avail Mr Bennett.)

114               Further, in approaching the “sufficient grounds” matter in the manner described in Ujiie, it will also be necessary for me to adopt the approach to matters of admissibility of evidence taken by Full Courts of this Court in Commonwealth of Australia v Riley (1984) 5 FCR 8 at 33-35 (Smithers, Sheppard and Wilcox JJ), Winkler v DPP (1990) 25 FCR 79 at 110-11 and 124 (Wilcox, Burchett and O’Loughlin JJ), Holt at 505 and McDade at [14].  (The Full Court’s decision in Riley was afterwards affirmed on appeal by the High Court of Australia: see (1985) 159 CLR 1; but the question of the admissibility of evidence in extradition proceedings was not discussed in the High Court’s reasons for judgment.) That approach is to act only on so much of the evidentiary material produced by the requesting country as would be admissible, as a matter of substance, in criminal proceedings in Australia.  (Material which would be inadmissible in criminal proceedings in Australia only as a matter of form may nevertheless be acted on.)

115               One effect of that approach is that hearsay which would be inadmissible in criminal proceedings in Australia is not to be acted on in determining whether the “prima facie evidence” test has been satisfied.  In Riley, at 33-34, the Court referred with approval to the decision of a Divisional Court of the Queen’s Bench Division in R v Governor of Pentonville Prison, Ex parte Kirby [1979] 1 WLR 541n, in which hearsay evidence had been held to be inadmissible in extradition proceedings, and then continued,

“Hearsay material is evidence of a different quality to evidence based upon the deponent’s own observations.  It lacks verification by a person with actual knowledge.  It is susceptible to error from a cause — mistake in transmission from source to witness — which has no counterpart in the case of direct testimony.  The issue of admissibility of such material is one of substance rather than of form.  Accordingly, … the better course is to conclude that the magistrate was correct in excluding hearsay material.  We will follow that course ourselves….”

(I add that it appears that Kirby (which had been decided on 25 June 1976) was subsequently affirmed by the House of Lords on 28 July 1976 in an unreported decision: see the table of cases in 17(2) (reissue) Hals Laws (4^th) p. 110.)

116               I turn now to the evidence produced by the United Kingdom, the most significant of which for present purposes was the deposition of Mr David Francis Alexander Barry Gillanders.  I will set out immediately below, in two parts, Mr Gillanders’ account of his dealings with Mr Bennett.  First, I will deal with Mr Gillanders’ account of his dealings with Mr Bennett regarding the helicopter referred to in the second of the Scottish charges against Mr Bennett (see par 13 above); secondly, I will deal with Mr Gillanders’ account of his dealings with Mr Bennett regarding the car referred to in the first of the Scottish charges against Mr Bennett (see also par 13 above).

117               As to the helicopter, Mr Gillanders met with Mr Bennett a number of times, beginning in early June 1989.  At Mr Gillanders’ first meeting with Mr Bennett, the latter arrived flying a Hughes 500D helicopter, registration G-010W.  At one of their meetings, Mr Bennett told Mr Gillanders that he had set up his own helicopter company in the United Kingdom, known as Magnum Helicopters (UK) Limited (“Magnum”).  Also at one of their meetings, Mr Bennett suggested to Mr Gillanders that the latter could purchase a 15% stake in the Hughes helicopter by settling on Mr Bennett’s behalf the VAT bill with the company which had sold the helicopter, March Helicopters Limited (“March”) of Sywell, Northampton.  Mr Bennett said that he and Mr Gillanders could come to an agreement whereby Mr Gillanders could have access to the helicopter for private purposes, together with use of it for business purposes.  Mr Gillanders would be entitled to 15% of the helicopter and to 15% of the revenue which its operation generated.  Mr Gillanders could sell or otherwise dispose of his 15% share in the helicopter at any time, but, in that event, Mr Bennett would have a right of first refusal.  Mr Bennett led Mr Gillanders to believe that he (Mr Bennett) had purchased the helicopter outright and was entitled to sell Mr Gillanders a share in it.  Mr Gillanders ultimately accepted Mr Bennett’s proposal.  Mr Gillanders and Mr Bennett then agreed on a form of words to give effect to their agreement and a document containing that form of words was signed by (relevantly) Mr Bennett in Mr Gillanders’ presence.  The document was addressed to Mr Gillanders.  It was on the letterhead of Magnum, whose address was said to be Sywell, Northampton, and whose managing director was said to be “Paul Bennett”.  The operative part of the document’s text (which I set out verbatim) was as follows:

“To the sale of 15% (fifteen percent) of the below Helicopter.  £35225.88

Hughes 500 “D”

Reg No.  G010W

Serial No. 1480488

This entitles the above named person to 15% of the above Hull Helicopter and 15% of the Revenue to be generated by the above payable as per mutal agreement.  This also entitles the above to full use of the Helicopter for private uses and licencee, as so to allow as per mutal agreement, (however the revenue jobs do have first priority).  Also in agreement is that Paul Bennett the Sole Director of Magnum Helicopters (UK) Ltd has first refusal should the above named person should sell or otherwise dispose of his 15% share.  The Insurance shall be noted of the above within 30 days of payment as will the Civil Aviaition Authority and Registration Department.”

 To give effect to the agreement with Mr Bennett, Mr Gillanders was to pay the sum of £35,225.88 directly to March in Northampton.  Mr Gillanders accordingly wrote a cheque for that amount and “submitted” it to March.  Mr Gillanders would not have done so, but for Mr Bennett’s claim that he was entitled to sell to Mr Gillanders a share in the helicopter.  The amount of the cheque was “debited from” Mr Gillanders’ account on 15 June 1989.  Subsequently, Mr Bennett may have flown Mr Gillanders to certain motor sport venues, but Mr Gillanders did not obtain the use of the helicopter for business or private purposes.  By September 1989, Mr Bennett and the helicopter had both disappeared and Mr Gillanders saw neither again.

118               Turning now to the car, at about the same time as Mr Bennett and Mr Gillanders were discussing the helicopter, Mr Bennett asked Mr Gillanders whether he would be interested in another business proposition, namely, the purchase from an Australian private motor vehicle collector of a Lamborghini Countach twenty-first anniversary model.  According to Mr Bennett, the vehicle in question had only minimum mileage recorded and had an asking price of about $A100,000.  Mr Bennett suggested to Mr Gillanders that they should purchase the vehicle at that price together, import it into the United Kingdom and resell it there at a profit.  Mr Bennett and Mr Gillanders then agreed that each would contribute half the cost of buying the vehicle and that they would share equally any profit on resale.  Mr Gillanders subsequently caused £45,597.48, said to represent his half share of the purchase price of the vehicle, to be transferred to an account nominated by Mr Bennett at Lloyd’s Bank, Park Lane Branch, London.  However, the motor vehicle concerned did not appear.  Subsequently, Mr Gillanders complained to Mr Bennett about the motor vehicle’s not arriving, whereupon Mr Bennett gave Mr Gillanders a cheque for £50,000 drawn on the Park Lane Branch of Lloyd’s Bank by way of repayment of his contribution.  That cheque was signed by Mr Bennett as authorised signatory for Magnum.  However, when Mr Gillanders presented the cheque, it was not honoured.

119               As well as the deposition of Mr Gillanders, the United Kingdom produced a deposition of Mr Patrick Denis Conroy.  Mr Conroy was, in 1989, a director of a London finance company, Combined Lease Finance PLC (“Combined”).  I will set out immediately below Mr Conroy’s account of his dealings with Mr Bennett.

120               In March 1989, Mr Conroy received a proposal on behalf of Mr Bennett for finance to purchase the helicopter which was subsequently the subject of the dealings between Mr Bennett and Mr Gillanders.  Subsequently, Mr Bennett and Mr Conroy spoke to one another about the matter and Mr Conroy told Mr Bennett that, before finance could be provided, the latter would need to have a limited company and would need to supply Mr Conroy with details of his accountant, solicitors and bank account.  Those details were later supplied, along with details of the seller and cost of the helicopter.  The seller was March of Sywell, Northampton and the cost was $350,000 (I assume US), or £205,882.35, plus $52,000, or £30,882.35, VAT, for a total cost of $402,000, or £236,764.70.  Of the latter sum, Combined advanced £177,500 directly to Magnum.  That advance to Magnum was secured by mortgage in favour of Combined. 

121               Together with his deposition, Mr Conroy produced a number of copy documents, including a copy certificate of mortgage registration, given at the Companies Registration Office at Cardiff on 4 May 1989.  That certificate certified that a mortgage dated 20 April 1989 and created by Magnum for securing £177,500 and all other moneys due or to become due from Magnum to Combined under the terms of the mortgage had been registered pursuant to the Companies Act 1985 (UK) on 25 April 1989.  Immediately following the certificate in the bundle of documents produced by the United Kingdom was a copy of the mortgage referred to in the certificate.  The mortgage bore a stamp saying that it had been registered in the Companies Registration Office on 25 April 1989.  It had been executed by Magnum on 20 April 1989.  Mr Bennett had signed it as director of Magnum.  Among the terms of the mortgage were the following: Magnum was obliged to keep the helicopter from becoming subject to any third party right (cl 5(l)); Magnum was prohibited from creating, incurring, assuming or suffering to exist any third party right on the helicopter (cl 6(d)); and Magnum was prohibited from selling, transferring or otherwise disposing of all or part of the helicopter or agreeing or purporting to do any such thing (cl 6(e)).

122               Magnum was to make monthly payments under the mortgage, beginning on 20 May 1989.  Payments were made for May, June and July 1989, but none were made thereafter.

123               In addition to the depositions of Messrs Gillanders and Conroy which I have summarised above, the United Kingdom produced three further depositions, by Ms Nicola Ann Farquhar or Liddle, by Mr Ian Horne and by Acting Detective Inspector John McMann, of Grampian Police.  I need draw attention for present purposes to only one thing said by each of the last two deponents.  First, Mr Horne, who worked for Mr Gillanders at the relevant time in some financial capacity, recollected Mr Gillanders’ receiving in the vicinity of £4,000 from Mr Bennett at some time Mr Horne could not remember, which money “was meant to be income received from the share of the helicopter”.  Secondly, Acting Detective Inspector McMann, having considered the terms of the mortgage from Magnum to Combined, opined that clauses 6(d) and (e) of it “prohibit[ed] Mr Bennett from offering to sell a share in [the] helicopter to Mr David Gillanders”.

124               Having now set out the substance of the relevant depositions, I will deal separately with the “prima facie evidence” question with respect to the two hypothetical New South Wales charges, first, the “helicopter” charge and, secondly, the “car” charge.

125               It appears to me to be most convenient to begin to deal with the hypothetical New South Wales “helicopter” charge by referring to those matters on which Mr Bennett relied as preventing my being satisfied that the “prima facie evidence” test had been satisfied with respect to it.  He made submissions as to two aspects of the matter, the deception aspect and the obtaining aspect.

126               So far as the deception aspect was concerned, Mr Bennett made a number of submissions, which submissions, I must confess, I found it very difficult to understand, at least in part.  In the circumstances, it may be best if I set out Mr Bennett’s written submissions on the matter (which I have silently edited in an attempt to improve understanding), adding that, having read the transcript of his oral submissions on the matter since having heard those submissions being made, I do not consider that they added anything of substance to his written submissions.  Mr Bennett wrote:

“The breach of the terms and conditions of a loan agreement is, in itself, not a criminal offence and there was no false representation made to Gillanders in regard to the terms and conditions of the loan agreement.  An alleged non-disclosure is not a false representation in law.  There is no evidence that the loan agreement or the terms and conditions was or is a binding contract, as it appears unsigned and not stamped or sealed by the finance company.  The actual terms and conditions are not signed by the applicant, nor are any of the various alterations signed by any party.  There is therefore, on the evidence produced by the United Kingdom, no lawful contract that could have been breached.  All documents and evidence must also comply with NSW law (refer s19(8) of the Extradition Act).  Conroy in his statement has not alleged any breach in regard to Gillanders of the finance company’s loan agreement.  Nor has Gillanders alleged any breach, only that he did not receive sufficient flying time, although it is admitted that he did receive some flying and income.  There is no evidence, expert or otherwise, that there was, in the circumstances described, an actual breach of the terms and in any event the terms, if accepted as evidence (which is not here conceded), made it open for Gillanders legally to be an owner of the helicopter without breach.  The only allegation that any terms have been breached is made by a police officer some 10 years after the event.  The warrant itself does not allege a breach of the loan agreement terms.”

127               In major respects, those submissions by Mr Bennett fail to address the real issues on the deception question arising from what is asserted against him in the depositions.  The substance of the case against him on the deception question is that he represented to Mr Gillanders that he had the present capacity to procure the effective transfer to Mr Gillanders of part-ownership of the helicopter, when he knew that he had no such capacity, because such a transfer was prevented by the mortgage into which his company had entered.  The making of that representation appears to me to be established to the requisite standard for present purposes by Mr Gillanders’ deposition.  (I note in that respect the Full Court’s acceptance in Riley at 34-35 of the admissibility in extradition proceedings of evidence of conversations, which evidence is not in the form of direct speech, as well as its acceptance of statements of conclusions of witnesses.)  Further, the knowledge of Mr Bennett at the relevant time appears to me to be established to the requisite standard for present purposes by the terms of the mortgage entered into by his company, in the entering into of which he himself had participated.

128               Contrary to Mr Bennett’s submission which I have set out above, it would be no part of the prosecution case against him that a breach by his company of the mortgage was a criminal offence, that he had made to Mr Gillanders any representation about the terms of that mortgage or that he had failed to disclose something to Mr Gillanders.  Furthermore, it would be immaterial both that Acting Detective Inspector McMann had asserted some breach of the mortgage by Mr Bennett’s conduct vis-à-vis Mr Gillanders and that neither Mr Gillanders nor Mr Conroy had.  The question would be instead whether it could be concluded that the mortgage falsified, to his  knowledge, Mr Bennett’s representation to Mr Gillanders, a question to which, as I have already said, both the terms of the mortgage and the circumstances of its execution would permit an affirmative answer.  As well, there would be no reason to conclude that the mortgage was not binding on Magnum by reason of Combined’s not having executed it as well.  As to any suggestion of Mr Bennett’s not having participated in the mortgage’s execution by Magnum, it would be open to a jury to compare the signature on the mortgage purporting to be his with that on the letter to Mr Gillanders which, according to Mr Gillanders, was Mr Bennett’s signature, having been affixed in Mr Gillanders’ presence, and to conclude that the signature on the mortgage was Mr Bennett’s.  Nor can I find any alterations in the mortgage, relevant or otherwise, to which could be applicable Mr Bennett’s submission that they had not been signed by the party to it.

129               I turn now to Mr Bennett’s submissions on the obtaining aspect of the hypothetical New South Wales “helicopter” charge.  It would, of course, be crucial to the success of any hypothetical prosecution of Mr Bennett on that charge that it be proven that he had obtained, either for himself or another person, either money or a valuable thing or a financial advantage of some kind. 

130               Mr Bennett in effect submitted before me that the evidence did not establish, even on a prima facie basis, that March had been paid money by Mr Gillanders.  Mr Bennett complained, as he had before the magistrate, that Mr Gillanders’ evidence in that respect was inadmissible hearsay.  Mr Bennett in effect further submitted before me that, in order to prove that March had been paid money by Mr Gillanders, it would have been necessary for the United Kingdom to produce appropriate banking evidence.

131               The United Kingdom’s response in its written submissions before me to those submissions of Mr Bennett to which I have just referred was as follows:

“The … documents … contained direct evidence of the obtaining of the money in respect of the helicopter….  Mr Gillanders … states that he wrote a cheque for the sum of £35,225.88 and submitted the … cheque to March … at the direction of the applicant.”

The United Kingdom’s oral submission on the matter was to the following effect:

“… all the relevant elements of the offence are in Mr Gillanders’ statement, … the evidence of the obtaining because Mr Gillanders … confirms that … the cheque that he drew in favour of March … to pay for the VAT ended up being cashed or presented and there was an entry in his … account reflecting that fact.”

132               I note that, contrary to the oral submission which I have just quoted, Mr Gillanders did not say or, at least, did not say in terms, that there was an entry in his account reflecting the fact that the cheque which he had drawn in favour of March had been cashed.  What he said in terms was that the amount of £35,225.88 had been debited from his account on 15 June 1989.  However, it is apparent that, in so saying, Mr Gillanders was giving hearsay evidence, whether of something told to him by someone or of something contained in some document which he had seen.  So far as concerns that particular statement by Mr Gillanders, I accept Mr Bennett’s submission that it was hearsay and, what is more, I accept that it would be inadmissible hearsay.  The United Kingdom did not, in either its written or in its oral submissions, deal with Mr Bennett’s submission that Mr Gillanders’ evidence regarding the payment of money to March was hearsay and so it obviously did not suggest any applicable exception to the rule against hearsay; however, having considered the matter without the benefit of such assistance as I might have obtained from submissions on it by the United Kingdom, I have been unable to satisfy myself in the circumstances that any such exception would exist.

133               However, the inadmissibility of Mr Gillanders’ evidence regarding the debiting of his account does not appear to me, in the end, to achieve what Mr Bennett sought to achieve by his submissions, since those submissions ignored the fact that an offence against s 178BA of the Crimes Act may involve the obtaining, not only of money, but also of (as well as a financial advantage of some kind) a “valuable thing”.  In R v Stolpe (NSWCCA: Mahoney ACJ, Hunt CJ at CL and Barr J, 30 October 1996, unreported), Barr J (with whom Mahoney ACJ and Hunt CJ at CL relevantly agreed) said (at 16) that a cheque was a valuable thing for the purposes of s 178BA of the Crimes Act.  (See also Parsons v The Queen (1999) 195 CLR 619, in which it was held by the High Court of Australia (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) that a cheque was “property” for the purposes of a Victorian provision similar to s 178BA of the Crimes Act.)  I am satisfied that Mr Gillanders’ evidence would establish a prima facie case of the obtaining by March of Mr Gillanders’ cheque (even if not of its honouring), so that there would be a prima facie case of Mr Bennett’s having obtained for another person a valuable thing.

134               Now that I have dealt with Mr Bennett’s submissions on the question of a prima facie case on the “helicopter” charge, it remains only to say with respect to that charge that it would be necessary for the prosecution on such charge to establish, not only a deception and an obtaining, but also that the obtaining resulted from the deception and was dishonest.  I am satisfied that the evidence to which I have referred above would establish both of those matters to the requisite standard for present purposes. 

135               I am therefore satisfied that the evidence produced by the United Kingdom would establish a prima facie case against Mr Bennett of the commission of an offence against s 178BA of the Crimes Act in respect of the helicopter. 

136               I turn now to the hypothetical New South Wales charge regarding the car.  As with the helicopter charge, Mr Bennett made submissions both as the deception aspect and as to the obtaining aspect of the matter.  I can deal with those submissions quite briefly in the circumstances.

137               I have earlier set out the following expression of opinion by Ms Bremner in her deposition:

“In relation to the Lambourghini [sic] motor vehicle, I confirm that, on the basis of the evidence presently available concerning Mr Bennett’s offer to jointly purchase such a vehicle with Mr Gillanders and the subsequent disappearance of Mr Bennett and non appearance of the vehicle, under Scots Law, a jury would be entitled to infer that Mr Bennett’s offer to jointly purchase such a vehicle with Mr Gillanders with a view to subsequent resale for profit … constituted a pretence, on this occasion the pretence being that Mr Bennett was in a position to legitimately obtain such a vehicle.”

Whether Ms Bremner’s opinion be sound or not (and it is not for me to say), I am unable to accept that a New South Wales jury acting reasonably could be satisfied beyond reasonable doubt of Mr Bennett’s guilt on the hypothetical “car” charge, given the evidence to which I have referred above.

138               In his written submissions, Mr Bennett submitted that, “There is no evidence whatsoever that the car did not exist” at the time at which he made the relevant representations to Mr Gillanders, a submission which I take to mean that there was no direct evidence to that effect.  Obviously, that submission was correct.  Nor, I should add, was there any direct evidence of Mr Bennett’s knowledge that the car did not exist. The situation regarding the representations as to what Mr Bennett was in a position to do regarding the car may usefully be contrasted in that respect with the situation regarding the representations as to what Mr Bennett was in a position to do regarding the helicopter.

139               Ms Bremner sought, in her deposition, to overcome the effect of those omissions by relying on two items of evidence said to be circumstantial evidence that Mr Bennett’s representations that he was in a position to obtain the car were made knowingly falsely, namely, that Mr Bennett later disappeared and that the car did not arrive.

140               In determining whether Mr Bennett’s later disappearance and the non-arrival of the car make good the omission of direct evidence, at the time of Mr Bennett’s representations, of his knowledge of his inability to obtain the car, the proper approach appears to me to be that taken in a related field by King CJ, with the concurrence of Mohr J (at 338) in R v Bilick (1984) 36 SASR 321 at 337.  His Honour there said,

“On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?”

(I note, incidentally, that the passage which I have just quoted was also quoted approvingly by O’Loughlin J in Forrest v Kelly (1991) 32 FCR 558 at 573, an extradition case involving a request by the United States of America.)

141               I do not accept that an inference that Mr Bennett made his representations regarding his capacity to obtain the car knowingly falsely would be “reasonably open” from the two items of primary evidence identified by Ms Bremner.  (I note, incidentally, that it was neither suggested by Ms Bremner in her deposition that the evidence against Mr Bennett on the Scottish “car” charge nor submitted by the United Kingdom in its submissions before me that the evidence against Mr Bennett on the hypothetical New South Wales “car” charge should properly be taken to include the evidence against him on the relevant “helicopter” charge.)

142               Given the conclusion which I have just expressed, it is unnecessary for me to deal with any of Mr Bennett’s other submissions regarding the hypothetical “car” charge.

143               In the result, I will confirm the order of the magistrate, stating at the same time, in accordance with par 21(6)(g) of the Act, that Mr Bennett is eligible for surrender in relation only to the second of the two charges against him in the petition of 20 November 1989.  As each of the active parties in the proceeding before me has had a measure of success in the

proceeding, it is appropriate that there be no order as to costs.

Associate:

Dated:              7 July 2000