Cheng v Governor of Pentonville Prison

and of the Extradition (Foreign States) Act 1946, and upon the

relationship between the Act and those regulations.

The facts are not in dispute. On 6 February 1985 a Warrant of Arrest was issued against the appellant, Jens Ingo Schlieske, at Frankfurt am Main. The warrant alleged what were said to be six separate offences, each involving the importation into Germany, or sale, of hashish. The warrant contained particulars of each of the alleged offences, which particulars included the names of persons said to be witnesses un relation to each offence. The document did not include any

On 28 July 1986 a Warrant of Apprehension was issued by an Australian magistrate, Mr K R Webb. That warrant was

1ssued pursuant to s.16(1)(b) of the Extradition (Fore1an

States) Act and followed the form prescribed by the general regulations made under that Act. Two weeks later, on 12 August 1986, the appellant was apprehended in New South Wales pursuant to that warrant. He was taken into custody and remanded pending the issue of a notice under s.15(1)(b) of the Act by the Attorney-General. That notice issued on 22 September 1986. It read as follows:

"NOTICE BY ATTORNEY-GENERAL UNDER PARAGRAPH 15(1)(b)

TO any Magistrate before whom the person apprehended under the warrant referred to 1n this notice 1s brought.

(a) a requisition has been made to me, Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia, by the Federal Republic of Germany a state to which the Extradition (Foreign States) Act 1966 applies, for the surrender of Jens Ingo Schlieske, a fugitive who 1s accused of the offences of:

(1) Importing on three occasions and selling on one occasion narcotic drugs, namely hashish. (Charged under German law as 1 count)

(11) Between 1983 and January 1984 selling on four occasions narcotic drugs, namely hashish. (Charged under German law as 1 count)

(111) Between July 1983 and June 1984 being knowingly concerned on four occasions with the importation and sale of narcotic drugs. (Charged under German law as 4 counts)

against the law of that state and 1s in or on the way to Australia; and

(b) on 28 July 1986 a warrant for the apprehension of Jens Ingo Schlieske was 1ssued under section 16 of that Act by Kevin Robert Webb, a Magistrate of the State of New South Wales and a person has been apprehended under the warrant:

NOW THEREFORE I, Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia, being of the opinion that

(c) Jens Ingo Schlieske 1s liable to be surrendered to the Federal Republic of

(d) the offences to which the requisition relates are, neither 1n essence nor by reason of the circumstances in which they are alleged to have been committed, offences of a political character; and

view to try to punish Jens Ingo Schlieske for an offence of a political character,

(Foreign States) Act 1966, hereby inform vou that the above-mentioned reguisition has been made."

No reference was made in this notice to the receipt by the Attorney-General of any evidentiary material implicating the appellant in relation to any of the alleged

Mr K S Anderson, a magistrate and the second respondent to this appeal, heard the application for extradition on 24 and 26 September. On the latter day Mr Anderson found that he was not satisfied, 1n terms of s.17(6)(b) of the Act, that the appellant was '1able to be surrendered to the Federal Republic of Germany. Mr Anderson

It 1s common ground that the only material placed before Mr Anderson in support of the application for extradition was the warrant issued by Mr Webb, the Warrant of Arrest issued in Germany, with a translation thereof, and the Attorney-General's notice. In particular, no evidence of

On 30 September 1986 application was made to this Court, on behalf of the Federal Republic of Germany, for

review of the magistrate's decision. That application was

made under s.17A(1) of the Extradition (Foreign States) Act.

On 3 October 1986, pursuant to the power conferred on this Court by s.17A(4) of that Act, Sheppard J ordered that the appellant be kept in custody until further order. The

appellant has been held in custody since that time.

The application for review came before Sweeney J on 13 October 1986. Mr Anderson was named as a respondent but he

submitted to such order as the Court should think fit. On 24

October 1986 his Honour delivered judgment, upholding the application for review, quashing the order for release and ordering the committal to prison of the appellant to await the warrant of the Attorney-General for his surrender to the Federal Republic of Germany. The appellant now appeals

Section 4(1A) and (1B) deal with the meaning in the Extradition (Foreign States) Act of the term "extradition crime". Sub-section (1A) provides that an offence against the law of, or a part of, a foreign State "for which a requisition for the surrender of a person has been made to the Attorney-General" 1s such a crime 1f, but only 1f:

death or imprisonment for not less than 12 months; and

(b) had a relevant act or omission by the person taken place, at the time when the reguisition was made, in, or within the jurisdiction of, the part of Australia

where the person was found, that act or omission would have constituted an

offence against the law in force in that part of Australia the maximum penalty for

which is death or imprisonment for not less than 12 months."

Sub-section (1B) states that a reference in para.(b) of sub-s.(1A) to a relevant act or omission by a person 15 a reference to: "(a) an act or omission by the person-- (1) which is, 1n or in connection with the relevant requisition, alleged to have taken place; or (11) of which evidence 1s produced in connection with the relevant requisition; or (b) any act or omission that 1S equivalent to

It will be noted that this sub-section envisages four categories of act or omission: first, an act or omission which 18 12n the relevant reguisition alleged to have taken

place; secondly, an act or omission which 1s in connection

with the relevant requisition -- for example in supporting documents -- alleged to have taken place; thirdly, an act or

omission evidence of which 1s produced in connection with the

requisition; and, finally, an act or omission that 15s

equivalent to one of the foregoing. The important point 1s

that the sub-section expressly contemplates that a mere

allegation may constitute that which the Act calls an

Part II (ss.9-11) of the Act deals with its application to particular countries. Provision 1s made in s.10 for the application of the Act to a particular foreign state by a regulation in that behalf made by the Governor-General. The section contemplates that there may be an extradition treaty between Australia and that state -- see sub-ss.(1), (2) and (3) -- but this 1s not essential.

"(4) Where the Governor-General is satisfied that, 1f this Act applied in relation to a foreign state, the law of that foreign state would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV who are found in that foreign state, or within the jurisdiction of, or of a part of, that foreign state, the regulations may provide that this Act applies in relation to that foreign state or that this Act applies in relation to that foreign state subject to limitations, conditions, exceptions or qualifications specified 1n the regulations."

Section 11 spells out the effect of a regulation applying the Act to a particular state. It reads:

"11.(1) Subject to sub-section (2), where the regulations for the time being in force provide that this Act applies in relation to a foreign state, this Act applies in relation to that state.

(2) Where the regulations for the time being in force provide that this Act applies in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications."

Sections 12 to 19 are included in Part III of the 'Act. That Part deals with extradition from Australia to a foreign state. Section 12 provides that, where the Act applies in relation to a foreign state, "every fugitive from that state is liable, subject to this Act and to any limitations, conditions, exceptions or qualifications to which the application of this Act in relation to that state 1s subject, to be apprehended and surrendered to that state". Section 13 specifies a number of circumstances under which a person "is not liable to be surrendered" to a foreign state.

Section 14 prohibits the Attorney-General, inter alia, giving

a notice under s.15(1) 1f£ there are substantial grounds for believing that the requisition for surrender of the fugitive was made "for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political Opinions" or if "he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions". Section 15(2) prohibits the issue by the Attorney-General of a notice under s.15(1) "1f he is of the opinion that:

(a) the fugitive 1s not liable to be surrendered to the foreign state; or

the surrender of the fugitive relates 1s, or is by reason of the circumstances in

committed or was committed, an offence of a political character or that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character."

Section 17 of the Act deals with proceedings after the apprehension of a fugitive. Sub-section (1) requires that a person apprehended under a warrant 1ssued 1n pursuance of s.16 shall, unless sooner released, be brought as soon as possible before a magistrate in the State or Territory in which he 1s apprehended. The person may be remanded from time to time (sub-ss.(2)-(4)) and shall be remanded -- subject to the time limits imposed by sub-s.(5) -- pending receipt of the notice of the Attorney-General under s.15(1)(b): see s.17(4). Sub-sections (5A) and (5B) deal with voluntary surrender. Sub-section (6), which is important in the present context, deals with proceedings before the magistrate after receipt by him of the Attorney-General''s notice. It applies to "a person who 1s accused of an extradition crime". It relevantly provides:

"(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15({1)(a) or

the Magistrate recelves a notice by the Attorney-General under paragraph 15(1)(b) and--

(1) in the case of a person who 1s accused of an extradition crime--

(A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant;

(B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person 1s reguested and the penalty applicable to each such offence; and

(C) a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person 1S requested; or

(11) 1n the case of a person who 1s alleged to have been convicted of an extradition crime-- ...

and, 1f the application of this Act to the forelgn state that made the reguisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and

(b) the Magistrate 1s satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender,

(c) by warrant 1n accordance with the form prescribed for the purposes of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person; or

(i) who has been charged with an offence that 1s alleged to have been committed in Australia, being a charge that has not been disposed of; or

of an offence and 1s not in custody un respect of that offence,

on the person's entering into such recognizances as the Magistrate thinks appropriate, grant bail to the person pending the signing of a warrant by the Attorney-General for the surrender of the person,

but otherwise the Magistrate shall order that the person be released."

It 1s important to observe that s.17(6) does not, in its present form and in contrast to its terms before the amendments effected by the Extradition (Foreign States) Amendment Act 1985, require the presentation to the magistrate of evidence of guilt. Notwithstanding this fact, Mr Anderson

held that, by reason of the absence of such evidence, he could not be satisfied that Mr Schlieske was a person "liable to be surrendered to" the Federal Republic. In so holding, Mr

Anderson did not rely upon anything in s.17. His decision was

based upon regs.2, 3 and 4(1) of the Extradition (Federal

Republic of Germany) Regulations, which -- at the date of his

"2. In these Regulations, 'the Act' means the Extradition (Foreign States) Act 1966.

3. The Act applies to the Federal Republic of Germany subject to the limitations, conditions, exceptions or qualifications specified in regulation 4.

the Federal Republic of Germany in respect of an offence to which a requisition by that state for the surrender of the person relates unless an act or omission by the person evidence of which 1s produced in connection with the requisition, or any equivalent act or omission, would, 1f 1t took place, at the time when the

requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constitute an offence against the law in force in that part of Australia-- (a) that 1s not a service offence (within the

(b) the maximum penalty for which is, or includes, imprisonment for not less than 12 months.

We are of the opinion that Mr Anderson was correct. The policy of the Act 18 to provide a general code governing the extradition of persons between Australia and those foreign states to which the Act applies but to subject that code to such limitations, conditions, exceptions or qualifications as may be imposed in the instrument -- the treaty and/or regulations -- applying the Act to any particular foreign State. This policy 1s made clear 1n a number of places. Thus s.10(4) -- which is presently relevant, there being no extradition treaty between Australia and the Federal Republic of Germany -- authorizes the Governor-General to provide by the regulations applying the Act to a particular foreign state

"that this Act applies in relation to that foreign state

subject to limitations, conditions, exceptions or qualifications specified in the regulations". Where the

Governor-General does so provide the "Act applies in relation

to that state subject to those limitations, conditions, exceptions or qualifications": see s.11(2). The liability to surrender of a particular fugitive 1s made subject to any limitations, conditions, exceptions or qualifications to which the application of the Act to the particular requesting state

In the present case reg.3 provided, at the date of Mr Anderson's decision, that the Act applies to the Federal Republic of Germany subject to the limitations, conditions, exceptions or gualifications specified in reg.4. At that time, reg.4 provided that a person is not liable to be surrendered to the Federal Republic in respect of an offence to which a reguisition for surrender relates "unless an act or

omission by the person evidence of which 1s produced in

connection with the reguisition", or an equivalent act or omission, would constitute an offence under Australian law. Thus the regulation limits extradition to two only of the four possibilities referred to 1n s.4(1B) of the Act. In contrast to some other cases -- for example, the Extradition (Japan) Regulations to which we were referred -- 1t excludes surrender of a fugitive upon the basis of a mere allegation, whether

made in the requisition itself or 1n connection with the

The argument put on behalf of the first respondent, which was accepted by the learned primary judge, 1s that the magistrate -- and so this Court on review -~ 1s not concerned with the requirements of reg.4. Regulation 4, 1t is said, was directed only to the Attorney-General, defining the content of the requisition to be made to him by the Federal Republic of Germany. Counsel for the first respondent submit that 1t 1s for the Attorney-General, and for the Attorney-General alone, to consider whether there is evidence produced in connection with the requisition. The magistrate, they say, 1s confined to three functions: consideration of the documents required by sub-sub-paras.(A), (B) and (C) of s.17(6)(a)(1), consideration of any other documents required by any relevant limitations, conditions, exceptions or qualifications -- see the concluding words of s.17(6)(a); and consideration of evidence properly adduced by the fugitive -- see s.17(6)(b) -- but subject to s.17(6A) which prohibits the reception of evidence in controversion of guilt. Counsel accept that the magistrate 1s required by s.17(6)(b) to be satisfied that the fugitive is liable to be surrendered but they say that, 1n relation to a matter committed to the Attorney-General's consideration -- such as whether the necessary evidence has been produced ~- the presumption of regularity of official acts applies; so that, in the absence of proof that no appropriate evidence has in fact been supplied to the Attorney-General, the magistrate 1s bound to be satisfied of

It appears to us that there are a number of flaws in this argument. First, we do not agree that reg.4 1s directed exclusively to the Attorney-General. The purpose of that regulation 1s to specify in relation to applications for extradition to the Federal Republic of Germany conditions -- additional to those imposed by the Act itself -- which must be satisfied. That specification is addressed to all who, from time to time in connection with a particular application for extradition, have to consider whether a fugitive is liable to be surrendered. This 1s made clear by s.12 of the Act; the effect of the condition imposed by reg.4 1s that unless that condition 1s satisfied there cannot be any liability to be surrendered to the Federal Republic. Of course, the regulation is relevant to any consideration by the Attorney-General, under s.15(2)(a), of the question whether he 1s of the opinion that the fugitive "1s not liable to be surrendered". But 1t 1s equally relevant to the task of the

magistrate under s.17(6). He must be positively satisfied of

his liability to be surrendered before he may commit a particular fugitive to prison to await the Attorney-General's

The conclusion which we have expressed 1S consistent with a long tradition. At common law, according to Lord Simon of Glaisdale, with whom Lord Wilberforce agreed, in Cheng v

Governor of Pentonville Prison [1973] AC 931 at p.955, there

was no right in any authority to order the extradition of a fugitive. (Their Lordships were in dissent upon a question of statutory construction, but that 1s immaterial for the

"A fugitive offender against the criminal law of a foreign state being thus protected by the common law from arrest for the purpose of extradition, the Extradition Act 1870 and the Orders in Council implementing it were necessarily in derogation from the common law. It follows that the positive powers under the Act should be given a restrictive construction and the exceptions from those positive powers a liberal construction."

The procedures under the English Extradition Acts for well over a hundred years have revolved around "a judicial hearing (as) an essential part of the extradition process"

(Shearer, Extradition in International Law (1971) p.198). The

system 1n England and other common law countries has traditionally committed conclusive power to the judicial arm to reject extradition, while conferring on the executive a discretion to refuse to extradite where the judicial arm has found in favour of acceptance of a foreign state's request. That system has been adopted in so large a part of the world that the countries which leave the matter to the sole decision of the executive have been described as "those few States" (1b1d,197-8). The same learned author has advanced the

"Por 1t seems to be beyond question that constitutionally impartial organs are better fitted to decide questions affecting individual liberties than the organs more

closely geared to governmental policy." (1bid, 197).

Against the background of the common law's watchful concern for liberty and the internationally accepted and almost universal understanding of the working of extradition legislation in common law countries, and indeed elsewhere, it would require clear words to relieve the magistrate of the duty of considering for himself or herself whether, upon the whole of the provisions of the Act as modified by the regulations, and in the circumstances proved, the appellant 1s liable to be surrendered. It 1S one thing to reduce the requirements for liability to surrender; as, for example, by eliminating in both the Act and in any relevant regulations the need for proof of guilt. It is another thing altogether to say that the courts are excluded from the question whether there has been a satisfaction by the applicant for extradition

Reference was made in argument to the decision of Burchett J 1n Hempel v_ Moore (10 December 1986, not reported). That case related to an application for the extradition of the two applicants to Israel, a country with which Australia has a treaty of extradition requiring the production of evidence. But 1n essence the situation 1s the same. As counsel for the present appellant submit, the statements of principle in that case may be applied to the present case; substituting only references to the requirements of the regulation for the references in Hempel to the treaty. See particularly pp.10-11

Secondly, we do not think that the common law rule presuming the regularity of official acts has any relevance to the present case. The magistrate is required by s.17(6)(b) to be "satisfied" that the person 1s liable to be surrendered. Especially in a case involving individual liberty, this must be read as a requirement of a positive finding based upon actual evidence. There is no room for presumptions in favour of the executive where the liberty of the subject 1s concerned: see Dillon v The Queen [1982] AC 484 at p.487. Moreover, the presumption of regularity could not, in any event, apply. The Attorney-General 1s not required to reach a positive state of satisfaction as to liability to surrender before 1ssuing a notice under s.15(1). He 1s merely forbidden to 1ssue that notice 1f he has reached the opinion that the fugitive 1s not liable to be surrendered. The Attorney-General may have no opinion, one way or the other, on the matter. Some of the bases for a finding that a person is not liable to be surrendered are matters which may not be within the knowledge of the Attorney-General at that stage: see s.13(1),(2) and (3). The fact that the Attorney-General gave a notice in this case indicates no more than that he had not, at that time, reached the conclusion that the appellant was not liable to be surrendered. It does not indicate that

he had formed any positive view to the opposite effect.

Thirdly, counsel concede that the magistrate is concerned to ensure that any documents, other than those specified in sub-paras.(1) and (11) of s.17(6)({a), required by any relevant limitations, conditions, exceptions or qualifications, are in fact produced. In a case where the condition of the relevant regulation is that evidence of the relevant act or omission "1s produced" this requirement seems to us to impose upon the magistrate -- regardless of para.(b) -- the duty of ensuring that there 1s such evidence.

Inevitably, such evidence will be in documentary form.

In order to avoid any misunderstanding it 1s perhaps desirable to emphasize the limited effect of our decision in this case. We have mentioned that until 1985 s.17(6) required evidence of guilt to be adduced to the magistrate in all cases. The amendment made to that sub-section in that year removed this requirement. That amendment was one of several

amendments to the Extradition (Foreign States) Act which were

designed to ease the burden of governments seeking the extradition of persons from Australia. The Attorney-General described these amendments in his Second Reading Speech -- see House of Representatives Debates 20 March 1985 p.597 -- as "part of a number of measures by the Government to facilitate the fight against major crime". It should not be thought that the effect of this decision 1s to re-introduce, as it were by the back door, the previous requirement of s.17(6) for the

production of evidence in all cases. Section 17(6) having

been amended to remove that requirement 1t will only be necessary, nonetheless, to adduce evidence where that course is specifically required by the treaty or regulations applying the Act to a particular state. If no requirement for evidence 1s imposed by the relevant treaty or regulation there will be no necessity to place evidence of guilt before the magistrate

to whom application 1s made for a warrant of Surrender.

Finally, we note with concern that the appellant has spent more than six months in custody during the pendency of the proceedings in the Local Court and in this Court. Whatever may be the truth of the allegations made against Mr Schlieske, and whatever future action may be taken against him, this 1s patently undesirable. Mr Anderson dealt with the matter very promptly after receipt of the Attorney~General's notice. The hearing before Sweeney J, in this Court, took place only two weeks after the Application was filed and judgment was delivered promptly. But there was then a delay of over four months before the appeal was heard. No application was made for an expedited hearing. It 1s the policy of this Court, wherever possible, to arrange for the prompt hearing of urgent matters. We have no doubt that, 1f attention had been called to the position, this appeal would

The appeal must be allowed. The orders made by Sweeney J should be set aside and in lieu thereof 1t should be ordered that the application for review be dismissed with costs. The order made by Sheppard J relating to the keeping in custody of the appellant should be set aside and the first respondent should be ordered to pay the costs of the appellant. There should be no order in relation to the costs

I certify this and the twenty (20) preceding pages to be a true copy of

the Reasons for Judgment of their Honours Mr Justice Fox,

Counsel for the Appellant: Mr M Weinberg OC with Dr I A Shearer

Counsel for the First Respondent: Mr D E Grieve QC with

Solicitors for the First Respondent: Director of Public Prosecutions

Solicitors for the Second Respondent: Crown Solicitor for New South Wales