De Bruyn v Republic of South Africa

REASONS FOR JUDGMENT HILL & HELY JJ: 1 A bundle of documents was tendered before a magistrate conducting an enquiry under s 19 of the Extradition Act 1988 ("the Act"). The contents of the bundle were identified by an affidavit sworn by the Attorney-General of the Witwatersand Local Division of the High Court of South Africa. The italicised description of certain of the documents in par 2 below is taken from that affidavit. The magistrate found that the documents comprising the bundle were "duly authenticated" in terms of s 19(7) of the Act. That finding was confirmed by the trial judge on a review, under s 21 of the Act, of the magistrate's orders. There has been no challenge in this appeal to that finding. 2 The documents included: · A copy of the indictment ... setting out the charges [South Africa] will prefer against [the appellant] should he stand his trial in South Africa ("the draft indictment"). · Sworn statements of witnesses and documentary exhibits in which the facts of this matter are set out and which clearly indicate that [the appellant] has committed the crimes of fraud or alternatively theft ("the statements"). 3 If the statements were reduced to their essentials, and synthesised into a single document, they could be taken as propounding the following matters (so far as the appellant's alleged criminality is concerned): · The appellant, trading as De Bruyn Jewellers maintained an account at the Carlton Centre Branch of the First National Bank. He was the only person authorised to operate that account. The account was opened on 4 September 1990. · The opening balance of the account on 8 October 1992 was R 1,730.14. · On 8 October 1992 a forged Inter Bank Reconciliation ("IBR") was processed which purported to authorise a credit of R 1,200,000 to the appellant's account, with a corresponding debit to the suspense "call" account of the Milner Park Branch of the Bank. · On 8 October 1992 the appellant's account at the Carlton Centre Branch of the Bank was credited with R 1,200,000. · On 9 October 1992 the appellant requested that two cheques for R 283,000 and R 1,190,000 in favour of Rand Refinery Ltd be guaranteed. The assistant manager of the Bank guaranteed payment of those cheques on the faith of "funds in a call account in our books", in the case of the smaller cheque, and "against the deposit allegedly made at our Milner Park Branch" in respect of the larger. · "Given [the appellant's] lengthy and impeccable connection [the assistant manager] had no reason to doubt his integrity in this instance. This was seen to be in the usual course of his business whereby he would from time to time purchase large quantities of gold for jewellery manufacture and subsequent export to the Far East." · Later on 9 October 1992 the Bank discovered that the apparent credit to the appellant's account resulted from a forged IBR. The credit to the appellant's account was reversed, but the Bank was required to pay on the cheques which it had guaranteed. · Those cheques were drawn by the appellant and applied in part payment for gold to the value of R 1,678,954.86 which he purchased from Rand Refinery Ltd on 9 October 1992. · As a result, the Bank suffered loss in a sum roughly equivalent to the fraudulent credit. 4 The first matter of which the magistrate is required to be satisfied, in order to determine whether the appellant is eligible for surrender in relation to an extradition offence, is whether the "supporting documents" in relation to the offence have been produced to the magistrate. Insofar as is presently relevant the "supporting documents" are: "a duly authenticated statement in writing setting out the conduct constituting the offence." (s 19(3)(c)(ii)) 5 Then, in its application to the facts of the present case, s 19(2)(c) requires the magistrate to be satisfied that, if the conduct of the appellant constituting the offence in relation to South Africa, or equivalent conduct, had taken place in New South Wales, that conduct, or equivalent conduct, would have constituted an offence under s 178BA, 178BB or 179 of the Crimes Act 1900 (NSW). 6 Section 10(2) provides: "A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed." Section 19(5) prevents the appellant adducing or the magistrate receiving evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. 7 The importance of identifying the "conduct constituting the offence" is readily apparent. The production of a written statement setting out that conduct is an essential step in the extradition process: s 19(2)(a). The allegation that the person has engaged in that conduct cannot be contraverted by evidence: s 19(5). The magistrate is required to determine whether that conduct is an offence under Australian law: s 19(2)(c); whilst s 19(2)(c) does not state, in terms, that the s 19(2)(c) test is to be applied to the s 19(3)(c)(ii) statement, it is implicit in the section that this is so. That was the view of the Full Court in Zoeller v Republic of Germany (1989) 23 FCR 282, 300, endorsed by a subsequent decision of a Full Court in United States of America v Holt (1994) 49 FCR 501. 8 As Pincus J observed in Unkel v DPP (1990) 95 ALR 44 the expression "the conduct of the person constituting the offence" might be ambiguous. It could mean simply the definition of the offence, or on the other hand, the acts or omissions of the person sought to be extradited, by virtue of which the offence is alleged to have been committed. In his Honour's view s 10(2) makes it clear that the latter is intended. 9 That may disguise another potential ambiguity, namely whether the reference to the acts or omissions by virtue of which the offence has been committed suggests the exclusion of acts or omissions which are not instrumental to the commission of the offence: see Aughterson, Extradition Australian Law and Procedure, p 69. 10 That is not the approach adopted in Zoeller. At p 300 the Full Court adverted to the fact that the magistrate is not an expert in foreign law, and cannot be expected to determine the minimum facts necessary to constitute the foreign crime. If a statement of facts is provided which goes beyond the minimum, the magistrate may have regard to all of the facts contained in the statement in order to determine whether those facts would constitute an offence of the requisite character under Australian law. That approach has been criticised: see Aughtenson (supra); The Laws of Australia 11.10 [12]. The resolution of that debate would not, however, assist in the resolution of this appeal. 11 In Wiest v DPP (1988) 23 FCR 472, 519 Gummow J said that the phrase "acts or omissions" refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions. That was the view adopted by the Full Court in Zoeller at p 294, although it was made clear at 297 that what is required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought. 12 The differing views expressed by the magistrate and by the trial judge as to whether the appellant's conduct, if that conduct or equivalent conduct had occurred in New South Wales, would have constituted offences under the sections of the Crimes Act to which we have referred, is referable, at least in substantial part, to a difference of view as to what was "the conduct constituting the offence". 13 The magistrate focused on the statements. [It should be remembered that since the coming into effect on 21 May 1997 of an amendment by Statutory Rules 1997 No 108 to the Extradition (Republic of South Africa) Regulations, South Africa has not been required to satisfy the test of a prima facie case which must be met by some countries.] His Worship extracted from those statements propositions similar to those set forth in par 3 above. On that basis his Worship found that there was only circumstantial evidence of fraud based on the timing of the various transactions, there being no direct evidence of knowledge in the appellant that the credit to his account was fraudulently procured. Nor was there any evidence of the terms of the communication between the appellant and the assistant Bank Manager which led to the latter guaranteeing payment of the cheques in question. 14 In his Worship's view the "totality of the documentation" did not indicate directly any deception or dishonesty on the part of the appellant. There was no specific indication that the appellant made any of the representations referred to in the draft indictment. 15 In essence the magistrate proceeded upon the basis that the matters alleged in the draft indictment could not rise above the factual material contained in the statements upon which the draft indictment was grounded. On that basis he was not satisfied that the conduct would have been criminal if it occurred in New South Wales. If his Worship's approach was the right one, then the conclusion to which he came was at least arguably correct. In particular, the acts or omissions particularised in the statements may not, without more, support the making of the representations referred to in the draft indictment: cf Cuthbert v Robarts, Lubbock & Co [1909] 2 Ch 226, 233. 16 In contrast, the trial judge proceeded upon the basis that it is the draft indictment which satisfied the s 19(3)(c)(ii) requirement, and to which the s 19(2)(c) test is to be applied. The application of that test to the acts or omissions of the appellant as alleged in the indictment leads to the conclusion that the test is satisfied. The fact that additional material was provided in the form of the statements was irrelevant, and was perhaps explicable upon the basis that it sought to satisfy the test of a prima facie case which must be met by some countries, and which South Africa was once required to meet. 17 We gave the appellant leave to amend his Notice of Appeal so as to include as an additional ground, a contention that the trial judge was in error in concluding that for the purposes of s 19(2)(c), regard was to be had to the terms of the draft indictment alone, and that his Honour should have had regard, as well, to the statements in order to determine whether the requirements of s 19(2)(c) have been satisfied. 18 The identification of the writing said to satisfy the requirements of s 19(3)(c)(ii) is, in a sense, a question of fact. If the only document which South Africa produced which was capable of satisfying that description was the draft indictment, then it would have been sufficient for that purpose. In opening his case before the magistrate, counsel for South Africa identified the draft indictment as being the document upon which South Africa relied by way of satisfaction of s 19(3)(c)(ii). The fact that South Africa proffered the document on that basis is a matter relevant to this issue. 19 There is a distinction, as adverted to by the Full Court in Zoeller, between a specification of the acts and omissions of the appellant by which the offence is said to be constituted, and the evidence by which those acts or omissions are to be established. The draft indictment naturally answers the first of those descriptions. The statements do not. They do, however, naturally answer the second of those descriptions. 20 But even if the result were otherwise, that would not advantage the appellant. The amended ground of appeal accepts that if the statements are to be taken into account, so must the draft indictment. On that basis the statements would operate in aid of the draft indictment, but not in derogation of it, particularly having regard to s 19(5). Accordingly, this challenge to the decision of the trial judge fails. 21 The appellant presented an alternative argument that if the s 19(2)(c) test was to be applied to the draft indictment, the trial judge erred in concluding that the test was satisfied. There is no substance in this argument. 22 The argument pays insufficient regard to the contents of the draft indictment. The draft indictment alleges that the appellant knew of the fraudulent IBR transaction, and that with intent to defraud the appellant made specified representations in relation to that transaction which he knew to be false. Those allegations satisfy the mental elements of the offences under ss 178BA, 178BB and 179. Then it is said that there is no act of the appellant which brought about the fraudulent IBR transaction. That may be so, but the draft indictment alleges, as we have indicated, that the appellant, with intent to defraud, made representations to the Bank which he knew to be false. If established, that would be sufficient to satisfy the actus reus in ss 178BA , 178BB and 179. 23 The appeal should be dismissed with costs. 24 In view of that conclusion, it is not necessary for us to determine South Africa's motion that the appeal should be dismissed by reason of an alleged failure on the part of the appellant to comply with orders 8 and 9 made by Burchett J on 28 April 1999. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Hill and Hely JJ