Dutton v O'Shane

Sections 19 and 21 of the Act 25 It is convenient, before proceeding further, to set out the provisions of ss 19 and 21 of the Act. " Determination of eligibility for surrender 19. (1) Where: (a) a person is on remand under section 15;

(b) the Attorney-General has given a notice under subsection 16 (1) in relation to the person;

(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section and

(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. (2) For the purpose of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been produced to the magistrate;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate;

(c) the magistrate is 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; and

(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

(3) In paragraph (2) (a), "supporting documents", in relation to an extradition offence, means:

(a) if the offence is an offence of which the person is accused - 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;

(b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:

(i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out; and

(c) in any case: (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence.

(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and

(b) the magistrate considers the deficiency or deficiencies to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.

(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, 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.

(6) Subject to subsection (50, any document that is duly authenticated is admissible in the proceedings.

(7) A document that is sought by or on behalf of a an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country.

(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:

(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5);

(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek or review of the order under subsection 21(1); and

(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:

(b) advise the Attorney-General in writing of the order and of the magistrate's reasons for determining that the person is not eligible for surrender. . . .

21 . (1) Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a) in the case of an order under subsection 19(9) - the person; or

(b) in the case of an order under subsection 19(10) - the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(b) quash the order and direct a magistrate to: (i) in the case of an order under subsection 19(9) - order the release of the person; or (ii) in the case of an order under subsection 19(1) - order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5).

(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the federal Court from the order of the Federal Court or the supreme Court.

(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.

(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

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

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

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

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

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

(f) if: (i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or (ii) the person has been arrested under an order made under paragraph (e);

the court to which the application or appeal is made may: (iii) order that the person be kept in such custody as the court directs; or (iv) order the release on bail of the person on such terms and conditions as the court thinks fit;

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

(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences" 26 Later in this judgment I will be referring to other sections of the Act.

THE EVIDENCE 27 The evidence before the magistrate was voluminous and occupies many volumes of the Review Books prepared for this review. I will refer, fairly briefly, to some of the evidence. 28 Exhibit 1 in the proceedings before the magistrate was the request by the Republic of South Africa dated 2 January 1998 for the extradition of Mr Dutton. Exhibit 1 is approximately 150 pages long. 29 The request includes a certificate by Mogamat Nizaam Hendricks, the Director of the Department of Justice of the Republic of South Africa. In this certificate Mr Hendricks certified that the documents annexed to the certificate and marked "X1", "X2" and "X3" were tendered in support of a request for extradition and had been signed by David Johannes Phillippus Scholtz, the Registrar of the High Court of South Africa Witwatersrand Local Division. 30 In the document marked as annexure "X1" to Mr Hendricks' certificate Mr Scholtz certified that he was the Registrar of the High Court of the Witwatersrand Local Division, that an affidavit by Andries Petrus de Vries attached to Mr Scholtz's certificate had been sworn before Mr Scholtz, that an arrest warrant attached to the affidavit of Mr de Vries was a true copy of the original warrant issued by Judge Streicher which had been signed by Judge Streicher, that an affidavit by Mr de Villiers attached to Mr Scholtz's certificate had been sworn before Mr Scholtz, that a copy of an indictment attached to Mr de Vries' affidavit was a true copy of the indictment in the South African trial of Mr Dutton and that Mr Scholtz had affixed the stamp and seal of the Witwatersrand Local Division of the High Court on the affidavits of Mr de Vries and Mr de Villiers. 31 The document marked as annexure "X2" to Mr Hendricks' certificate (which was also an attachment to Mr Scholtz's certificate) was an affidavit by Mr de Vries. In his affidavit Mr de Vries said that he had held various positions within the South African Department of Justice and that the prosecution of Mr Dutton for the alleged offences came within his exclusive jurisdiction. 32 In paragraph 5 of his affidavit Mr de Vries gave expert evidence about the elements of the crime of fraud under South African law. Annexure "A" to Mr de Vries' affidavit was a long extract from a South African criminal law text relating to the offence of fraud. 33 In paragraph 6 of his affidavit Mr de Vries discussed the penalty which might be imposed on a person convicted of fraud. He expressed the opinion that it was highly unlikely that a sentence of less than twelve months imprisonment would be imposed for offences as serious as those set out in the indictment presented against Mr Dutton. 34 Annexure "B" to Mr de Vries' affidavit was a copy of the indictment which had been presented against Mr Dutton. The copy of the indictment in one of the Review Books occupies nearly sixty pages and I will not attempt to do more than give a brief outline of the nature of the charges in the various counts in the indictment. 35 In a preamble in the indictment it was alleged that the accused controlled the South African companies E Dutton Holdings Pty Limited ("EDH") Interboard S A, Interboard Limited and Board World Pty Limited ("Board World") and that he controlled an overseas trust which controlled the overseas companies Interboard Holdings BV, Interboard NANV, Partic Industrial Company Limited ("Partic") and Ligneus Processing and Engineering Company Limited ("Ligneus"). 36 In counts 1 to 7 inclusive of the indictment, which were not pleaded individually, it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa or its agent that Board World had purchased plant from Partic and owed foreign currency to Partic for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to provide foreign currency, whereas in fact Board World had not purchased any plant from Partic and did not owe any foreign currency to Partic. 37 In count 8 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the Reserve Bank of South Africa or its agent, that Board World had entered into a contract with Ligneus for the purchase of an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the Reserve Bank of South Africa or its agent to provide foreign currency, whereas in fact there was no genuine contract and Board World did not owe any foreign currency to Ligneus. 38 The pleading of count 9 was more involved but, basically, it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to a South African bank, the First National Bank of Southern Africa, that Board World had entered into a contract with Partic for the purchase of an item of plant and owed foreign currency to Partic and had thereby induced the First National Bank of Southern Africa to provide foreign currency, whereas in fact Board World had not entered into any contract with Partic and did not owe any foreign currency to Partic but had purchased the item of plant in question from a different company at a different, lower, price. 39 In count 10 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to another South African bank, the International Bank of Johannesburg, that EDH had entered into a contract with Ligneus to purchase an item of plant and owed foreign currency to Ligneus for the purchase and had thereby induced the International Bank of Johannesburg to provide foreign currency, whereas in fact there was no genuine contract between EDH and Ligneus and EDH did not owe any foreign currency to Ligneus. 40 In count 11 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the First National Bank of Southern Africa and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs, whereas in fact EDH was not under any such obligation. In count 11 it was alleged that the First National Bank of Southern Africa was induced by the false representation to believe that EDH was under an obligation to Partic but it was not alleged that any foreign currency was actually provided. 41 In count 12 of the indictment it was alleged that Mr Dutton (in making an application for foreign currency) had falsely represented to the International Bank of Johannesburg and to the Reserve Bank of South Africa that EDH was under an obligation to pay foreign currency to Partic for the purchase of plant and for escalation costs and had thereby induced the International Bank of Johannesburg to provide foreign currency, whereas in fact EDH was not under any such obligation. 42 The offence alleged in count 13 in the indictment was rather different from the offences alleged in the preceding counts in the indictment. In count 13 it was alleged that Mr Dutton falsely represented to the Standard Bank of South Africa that the costs up to two specified dates of plant at a factory owned by one of Mr Dutton's companies were certain figures, that the value placed on the plant was fair and the plant was new and unused and that EDH had entered into a contract with Partic for the purchase of an item of plant, and that Mr Dutton had thereby induced the Standard Bank of South Africa to purchase the plant at a certain figure and lease it to Interboard SA, whereas in fact the figures for the costs of the plant up to the specified dates were falsely and grossly inflated, the value placed on the plant was not fair and the plant was not new and unused and the purported contract with Partic was forged or fabricated. 43 The offence alleged in count 14 in the indictment was also rather different from the offences alleged in the preceding counts in the indictment. In count 14 it was alleged that Mr Dutton falsely represented to the First National Bank of Southern Africa that a share certificate for shares in Interboard was a certificate for a new issue of shares, that documentation verifying that the issue was a new issue was not yet available due to a delay in the typing pool at the Johannesburg Stock Exchange and that the reason for the new issue was that Interboard wished to settle a debt it owed to EDH and that Mr Dutton had thereby induced the First National Bank of Southern Africa to release financial rand from an account of Interboard NANV at one of its branches. 44 In the concluding part of the indictment there is a "summary of substantial facts", which was in the following terms: " Summary of Substantial Facts Counts 1 - 7 During the early part of 1986 the accused explained to Peter Southey, the general manager of the Alrode Branch of Nedbank Limited, that he intended to import plant similar to that situated at the Wadeville factory of Interboard SA. The accused subsequently presented Nedbank with documentation purporting that Board World had purchased plant and/or parts thereto. On the strength of the representations made to Nedbank Limited, foreign currency … was sold to Board World and remitted to Partic. An amount of $16,534,247-00 (approximately R37,312,555) was remitted in this way. No plant and/or parts therefore was imported in respect of the said remittances for or on Board World's behalf. Count 8 On or about 21 July 1988 the accused presented Nedbank with a forged letter dated 6 June 1988 purportedly from Ligneus to Board World as well as a forged 'quotation and if successful, agreement' enclosed to the said letter purporting to relate to a Hot Laminating plant. The accused also presented a letter to Nedbank dated 4 July 1988 and signed by himself on behalf of Board World and addressed to Ligneus purportedly accepting the 'quotation' for the supply of 'One Complete Single Daylight Short Cycle Hot Laminating Plant'. Nedbank then sold $4,448,114-00 (R10,833,454-71) to Board World and remitted the said amount to Ligneus in respect of the aforementioned plant on the strength of the 'agreement' presented to Nedbank Limited. At no stage did Board World purchase a Single Daylight Short Cycle Hot Laminating Plant from Ligneus and/or imported same into the Republic of South Africa. Count 9 During or about the period May 1987 to December 1988 the accused approached First National Bank of Southern Africa Limited. He presented them with one or more of the documents referred to in the preamble to count 9. On the strength of inter alia one or more of the said documents, First National Bank of Southern Africa sold the amounts of foreign currency (mentioned in column 2 of Annexure "B") to and remitted the said amounts on behalf of EDH. No MDF-plant was ever purchased from Partic and/or imported into the Republic of South Africa by EDH. On instruction of the accused Ligneus purchased Lotos VII and VIII and the sanding line for an amount of D.M. 2,500,000-00 (approximately R3,300,000-00) from a company NV Spano, a particle board manufacturing company in Belgium. Lotos VII and VIII and the sanding line were shipped to South Africa during the second half of 1988, beginning 1989. Only Lotus VII and the sanding line was erected at George and Lotus VIII remained in its packing crates at the same premises where Lotos VII was erected. Lotos VII and the sanding line were commissioned and came into production during 1989. Count 10 On or about the dates mentioned in column 1 of Annexure "C" the accused presented a forged and/or fabricated contract for the purchase of a 'Process Line for the Manufacture of High Quality Chipboard with Fine Surface' and sanding line to the International Bank of Johannesburg Limited. According to the contract EDH had entered into an agreement with Ligneus on 1 November 1988 for the purchase of the said plant for an amount of $25,895,000 (approximately R60,6000,867). Inter alia on the strength of this contract the two amounts of foreign currency set out in column 2 of Annexure "C" were sold to EDH and remitted to Ligneus.

Count 11 and 12 On or about 30 November 1988 the accused sought to purchase a further amount of foreign currency via First National Bank of Southern Africa Limited in the amount of $2,430,590-00 (R5,535,668-73) and to remit the said amount to Partic. Approval was sought from the Reserve Bank by First National Bank of Southern Africa Limited to remit the said amount on behalf of EDH. The Reserve Bank, however, was unwilling to grant permission for the remittance of the said amount without the necessary documentary proof in support of the application. The accused personally and/or through John Dutton also applied to the International Bank of Johannesburg Limited on or about 2 December 1988 for the remittance of the said amount. The said amount was hereafter remitted to Partic on 6 December 1988. Count 13 Towards the end of 1988 the accused personally and/or through John Dutton sought to obtain an amount of money from Standard Bank. After negotiations it was decided to enter into a lease agreement which entailed the purchasing of the particle board plant situated at George by Standard Bank from Interboard S.A. and leasing it back to the said company. Prior to the signing of the lease agreement Standard Bank addressed a letter dated 9 December 1988 to Interboard S.A. requiring inter alia a certificate from a professional engineer certifying the amount spent on the particle board plant by EDH. Standard Bank also required confirmation to the effect that the value of the equipment being purchased was fair and that the plant was new and unused. The accused either personally and/or through John Dutton duly complied with these requests and a 'Progress Certificate no 1' dated 30 November 1988, comprising the various parts of the plant and the expenses purportedly incurred in respect of each part, was forwarded to the George factory of Interboard SA where it was signed by one Basil Edgar Mullon, an employee of Interboard SA, and returned to the offices of Interboard Limited. This certificate reflected the purchase price and/or costs incurred in respect of the particle board plant situated at George to be R32,825,065-00. A 'final progress certificate no 2' dated 31 January 1988 (this appears to be typing error and should have read 1989), also comprising the various parts of the said plant and the expenses purportedly incurred in respect of each part, was also forwarded to the George factory where it was signed by the said Mullon and returned to the offices of Interboard Limited. This certificate reflected the purchase price and/or costs incurred in respect of the particle board plant situated at George to be R35,465,750-00. These progress certificates were forwarded to Standard Bank. In a letter dated 14 December 1988 and addressed to Standard Bank, the accused and John Dutton, signing on behalf of one Derrick Brindle, informed the said bank that the value of the equipment being financed was fair and that the plant was new and unused. The accused, and/or the accused acting through John Dutton, also misrepresented to Standard Bank that EDH had entered into an agreement with Partic on 27 May 1987 for the purchase of the Lotos-plant, referred to in the preamble to count 9, for an amount and/or to the value of $27,310,000-00; and/or that EDH had been obliged to remit to Partic the amounts stipulated in column 2 of Annexure "B". The said lease agreement was concluded on 14 December 1988 and an amount of R38,298,026-00 made available to EDH. Count 14 On or about 26 January 1989 one Ann Brown (neè Watt), acting on instruction of the accused, requested Central Registrars Limited to split share certificate No. 8464 and to issue two new certificates and not to endorse them with 'non-resident' stamps. Share certificate no 8464 was for 1,164,000 shares and was previously issued by Interboard Limited reflecting the registered holder as Interboard Holdings BV. Share certificate no. 8464 was endorsed with a 'non-resident' stamp. Share certificate no 8464 was split into two certificates, to wit: No 8471 for 1,155,000 shares, and No 8472 for 9000 shares. These share certificates were not endorsed 'non-resident' as requested and were handed to the accused. Armed with share certificate no 8471 the accused proceeded to First National Bank of Southern Africa Limited where he made the misrepresentations… As a result of the misrepresentations the amounts of financial rand mentioned in column 2 of Annexure "D" was released to the accused". 45 In annexures to the indictment there are particulars of dates and amounts and a list of the witnesses proposed to be called at the trial by the prosecution. 46 In paragraph 8 of his affidavit Mr de Vries said that a document annexed to his affidavit and marked "C" was "a… copy of the original warrant issued by Judge Streicher". 47 In paragraph 10 of his affidavit Mr de Vries on behalf of the Republic of South Africa formally requested that Mr Dutton, having been indicted in the Witwatersrand Local Division of the High Court on 14 counts of fraud as set out in the indictment, be returned to the Republic of South Africa. 48 In his affidavit Mr de Villiers said that he was a Deputy Attorney-General employed by the Department of Justice and that he was attached to the Office for Serious Economic Offences. In his affidavit Mr de Villiers said that "having prepared the indictment from the available evidence and having led the prosecution team, I am familiar with the evidential material available against Dutton". 49 At pages 6-14 of his affidavit Mr de Villiers dealt with the subject of South African exchange control and I will quote what he said:- " South African Exchange Control (a) At all material times South Africa regulated its foreign exchange dealings. Up until 13 March 1995 an integral part of its regulatory regime was a system of dual exchange rates. One exchange rate was known as the commercial rand rate while the second rate was known as the financial rand rate. Which exchange rate applied depended on the purpose or origin of the transaction. Generally South African residents were only able to deal in commercial rand while financial rand were available to non-residents of South Africa. A resident is defined as a natural or legal person and, therefore, includes corporations incorporated in South Africa or the relevant country in the Common Monetary Area ("CMA")... (b) The financial rand exchange rate was always at a lower rate than the commercial rand rate, i.e US $1.00would purchase more financial rand than commercial rand. Because of the differential between the two rates, if a person bought foreign currency using commercial rand and then was able to convert the foreign currency back into rand at the financial rand rate, he would make a profit. (c) Where a non-resident had purchased assets in South Africa, when those assets were sold the proceeds could only be converted into foreign currency using the financial rand exchange rate. It was an offence to convert rand acquired from the sale of such assets into foreign currency at the commercial rand rate. (As non-residents were allowed to purchase assets in South Africa at the financial rand rate, they also had to sell the said assets at the same rate). (d) The exchange control regulations also restricted the ability of South African residents to acquire and export foreign currency. The approval of the South African Reserve Bank or an Authorised Dealer in foreign exchange (which were Banks appointed by the Minister of Finance) had to be obtained before a South African resident could acquire foreign currency and export it from South Africa. Reserve Bank approval could be obtained where a South African resident required foreign currency for the purpose of purchasing capital equipment (plant) from a foreign supplier. It was an offence to export funds from South Africa without the approval of the Reserve Bank or an Authorised Dealer in foreign exchange. (e) The Reserve Bank is a legal person which was originally established by section 9 of the Currency and Banking Act, 1920 (Act 31 of 1920), previously governed by the South African Reserve Bank Act, 1944 (Act 29 of 1944) and since August 1989 governed by the South African Reserve Bank Act (Act 90 of 1989). Pursuant to a delegation by the Minister of Finance the Reserve Bank is responsible for the day to day management of the exchange control regulations. The South African Exchange Control Regulations, Orders and Rules provide amongst other that control over South Africa's foreign currency holdings, accruals and spending thereof is vested in the Treasury. The regulations define the Treasury as the Minister of Finance. (f) The Minister has appointed certain Banks to act as Authorised Dealers. This appointment gives these Banks the right to buy and sell foreign currency, but only under conditions prescribed by the Treasury. This appointment enables the banks concerned to dispose of the bulk of their customers' day to day commercial and financial transactions involving foreign currency under conditions and within limits as prescribed by the South African Reserve Bank. Transactions falling outside these prescribed parameters have to be referred to the South African Reserve Bank for consideration. (g) Only some branches of the Authorised Dealer Banks referred to above were appointed to deal in Financial Rand. In this narrower sense these banks are hereafter referred to as 'authorised banks'. The financial rand system was abolished by South Africa on 13 March 1995. The rest of the Regulations, Orders and Rules, as amended from time to time, remained in place. (h) The financial rand system also extended to some of the South African neighbouring states including Transkei and Swaziland. The CMA consisted of the Republic of South Africa (including Transkei, Bophuthatswana, Venda and the Ciskei - the so-called TBVC states), Lesotho, Namibia and Swaziland. In terms of an agreement between the then Ministers of Finance of the countries concerned, there were no trade and foreign exchange restrictions between the members of the CMA and they formed a single exchange control territory. Although each of the other member countries had its own exchange control authorities, as well as its own Acts or Regulations and Rulings, their application of exchange control had to be, in terms of the Common Monetary Area Agreement, at least as strict as that of South Africa. Accordingly, investments and transfers of funds or goods from South Africa to the other CMA countries did not require the approval of the Exchange Control Department of the Reserve Bank of South Africa. However, investments into the other CMA countries by non-residents through the financial rand system all had to be approved by the Exchange Control Department of the South African Reserve Bank, with the concurrence of the Exchange Control authority of the relevant country concerned. (i) The banks used by Dutton to remit foreign currency abroad or used to cause financial rand to be released were authorised banks. (j)(i) The fact that the foreign currency that was purchased in South Africa was exported abroad, round-tripped and then later used to procure financial rand does not mean that the foreign currency exported abroad was received back in South Africa to form part of the country's foreign currency reserves. (ii) The Exchange Control Regulations, inter alia , provide that the Treasury from time to time prescribe the manner in which payment may or may not be made in connection with transactions involving payments between residents and non-residents of South Africa. (iii) The rand proceeds of South African assets owned by persons resident outside the Republic and/or rand funds so designated by the Treasury were credited to a rand account which was designated a financial rand account. (iv) Such rand balances held in a financial rand account were subject to the conditions and restrictions outlined in the Exchange Control Regulations read with the Exchange Control Rulings and the Securities Control Notices, and were defined as 'financial rand'. (v) Financial rand was not a separate monetary unit but represented rand which were held in a financial rand account, which rand balances were subject to certain specific conditions and restrictions. (vi) One of the restrictions applicable to rand balances held in financial rand account was that it could not be exchanged into a foreign currency at a loss to South Africa's foreign currency reserves. (It was blocked). (vii) Another restriction applicable to rand balances held in a financial rand account was that it could not have been transferred to an account which was without such restrictions unless prior Exchange Control approval was obtained. (In practice the last mentioned accounts were at times referred to as free rand accounts, normal rand accounts or commercial rand accounts). (viii) When a non-resident purchased a financial rand balance he did so from another non-resident (who already owned a financial rand balance) by the payment abroad of foreign currency to such other non-resident. As a result of the restrictions and conditions applicable to rand balances held in a financial rand account, non-residents were only prepared to purchase such rand balances at a discount. This discount created the difference when a financial rand balance was quoted against a foreign currency in contrast to a quotation between a rand balance without such restrictions or conditions and a foreign currency. (In practice people referred to the 'financial rand/foreign currency' rate as opposed to the 'commercial rand/foreign currency' rate). (ix) When a non-resident sold a financial rand balance to another non-resident, he received payment abroad in foreign currency from such other non-resident. The financial rand balance was then merely transferred in South Africa to a financial rand account in the name of the non-resident buyer. No transfer of foreign currency into or out of the Republic then took place and the country's foreign currency reserves were therefore not affected. During July 1988 Authorised Dealers in foreign currency were permitted to deal in financial rand for own account and as principals, thereby facilitating the buying and selling of financial rand balances by non-residents. Before that Authorised Dealers in foreign currency acted as agents between two non-residents. In order to buy financial rands the non-resident had to either go to a broker abroad or an Authorised Dealer in South Africa to assist in finding a non-resident holder of financial rand before a purchase could be made. (x) No South African resident was permitted, in terms of the Exchange Control Regulations to inter alia purchase a financial rand balance without prior Exchange Control approval. (xi) The rand deposited into a Financial Rand account formed part of the particular Bank's holding of rand payable to depositors. The control, restrictions and conditions were placed over the rand balance held in a financial rand account. (xii) The exportation of foreign reserves by residents of South Africa at the commercial rand rate of exchange on bogus transactions, then round-tripped, and released at the financial rand rate of exchange resulted in a direct loss of South Africa's foreign reserves, as foreign currency so round-tripped was not returned to South Africa as foreign currency into its reserves but absorbed as financial rand into the financial rand pool. The South African people then also suffered prejudice when the above happened in that South Africa then had less foreign currency reserves to pay for imports or service foreign debts on behalf of its people. The South African public was prejudiced in that the loss of foreign currency not only made their country poorer but adversely affected the inflation rate". 50 At pages 14-18 of his affidavit Mr de Villiers gave an "outline of (the) alleged fraud" and I will quote what he said:- " Outline of Alleged Fraud (a) It is alleged that Dutton defrauded the Republic of South Africa and others by making false representations in relation to dealings between the South African companies he controlled and the foreign companies under his control. The representations were made to South African banking officials to enable him to circumvent South Africa's exchange controls and thereby to profit through the commission of the alleged offences. Essentially Dutton would represent to an authorised bank that one of the South African companies under his control had contracted with one of the foreign companies whereby the South African company had contracted to purchase capital equipment (plant) from the foreign company. This allowed Dutton to convert rand into foreign currency at the commercial rate of exchange and export the foreign currency from South Africa. (b) Dutton would then have the foreign currency laundered through a number of the overseas companies in his control before having it returned to one of the South African companies. The funds were then returned to South Africa in such a way that would allow the South African company receiving the funds to have it released into rand at the financial rand rate. Where the financial rand were released into a private company (i.e. Interboard SA) Reserve Bank approval had to be obtained. (This is relevant to counts 1-5 as Interboard Limited had not been incorporated as yet at the time of these offences). To obtain Reserve Bank approval it was then also necessary for Dutton to specify on behalf of the overseas company what the financial rand would be used for. Dutton sometimes misrepresented to the bank that the introduction of the financial rand was funding by the foreign corporation for the acquisition of plant (capital equipment) by the local corporation. (c) Where the financial rand were to be released into a public company Reserve Bank approval was not required. The Reserve Bank however monitored the introduction of financial rand through the authorised banks who had to ensure that the introduction of the funds by the foreign company was based on arms length dealings and against an investment (i.e. shares or other specified assets) into the local listed company by the overseas company. (d) In introducing financial rand on behalf of Interboard NANV or Interboard BV caused the officials of the authorised banks to believe that the release of financial rand was as a result of arms length dealings between the overseas investor company and the local companies under his control and for investment purposes. It was however not always introduced on an arms length basis. The funds returned and introduced as financial rand originated in the first place from Dutton's alleged activities in remitting foreign currency abroad based on misrepresentations, laundered through overseas banking accounts to prevent the discovery of its true origin and were then sometimes released based on sham transactions or further misrepresentations to authorised dealers as is demonstrated infra . (e) Dutton failed to disclose to the Reserve Bank or the authorised banks that the financial rand sought to be released had been purchased with foreign currency acquired illegally in South Africa which had subsequently been laundered through the bank accounts of several overseas entities under his control. If the true relationship between the corporations involved and the original source of the funds had been disclosed bank approval could not have been obtained to release the financial rand. (f) By acquiring foreign currency at the commercial rand rate, then having the funds returned to South Africa and converted back into rand at the financial rand rate, Dutton and the local companies were able to make substantial profits at the expense of the South African Government's foreign currency reserves and the South African people. (g) Dutton's actions in a number of instances also prejudiced the minority shareholders of Interboard Limited as the funds were sometimes returned to South Africa to be used to purchase newly issued shares in Interboard Limited. This diluted the minority shareholder's percentage holding in Interboard Limited. As their shareholding percentage was diluted vis-à-vis that of the majority shareholder (i.e. Interboard BV), the minority shareholders' voting power was adversely affected and the stake of their asset holding in Interboard Limited decreased in the event of the liquidation of Interboard Limited". 51 In the rest of his affidavit Mr de Villiers set out "statements of acts and omissions", that is a statement, in considerable detail, of the facts relating to each of the counts in the indictment. 52 Many affidavits were filed in the proceedings before the first defendant. I will specifically refer only to some of them. 53 The principal affidavit by Mr Dutton was an affidavit of 19 October 1999. The body of the affidavit and the annexures to it occupy pages 172-424 of the Review Books prepared for the review. Statements by Mr Dutton about specific subject matters were annexed to the affidavit as follows:-

A. The history of E Dutton Holdings "(EDH)" up to March 1989.

B. History of Interboard and the market it operated in and its competitors.

D. Local elections against the National Party and the administration of Linbro Park.

E. The action by the National Party Government through the agency of the Exchange Control Department of the South African Reserve Bank in 1987 and 1988.

G. The period from the attachment by the South African Reserve Bank on 3 March 1989 "and covering the unlawful arrest and detention on 27 November 1989 (sic) to the completion of the destruction of my political platform and business interests in February 1991".

H. The trial. 54 Annexure C to Mr Dutton's affidavit consisted of the terms of the "Corporate Mission" (that is a statement of the objectives of Mr Dutton's companies, which was displayed at the companies' premises and set out in the companies' reports). Further annexures to Mr Dutton's affidavit of 19 October 1999 included:-

I. A letter of request from the Registrar of the Supreme Court of South Africa that the evidence of certain witnesses in the trial of Mr Dutton be taken before a Commissioner in London, an order by a Master of a British Court dated 27 March 1992 that evidence be taken on commission and a subsequent order dated 3 April 1992, setting aside the order of 27 March.

J. A letter dated 13 October 1995 from an Australian Government lawyer to the office of the Attorney-General of the Witwatersrand Local Division concerning the first extradition request.

K. A letter from Mr Dutton of 17August 1996 to Archbishop Tutu in his capacity as chairman of the South African Truth and Reconciliation Commission and a letter by Mr Dutton of 3 October 1996 to the South African High Commissioner in Australia, together with subsequent related correspondence.

L. An address by the South African Minister of Justice Mr Dullah Omar to the National Council of Provinces delivered on 5 May 1998. 55 Affidavits by other persons filed on behalf of Mr Dutton included affidavits by:-

(i) Johannes Matthys Strydom. In his affidavit Mr Strydom said that he had been a journalist for many years and that he had researched and written articles about the Afrikaner Broederbond, which he said was a secret and powerful organisation to which many political figures and other persons in South Africa belonged.

(ii) Bartholomew (Barry) Dutton, a brother of Mr Dutton.

(iii) Lionel Coyle-Dowling, the sales manager of another company in South Africa which manufactured particle board.

(iv) Mohamed Junaid Husain, a South African lawyer, who had acted as a lawyer for Mr Dutton from the early 1980's to the early 1990's.

(v) Michael Andrew Werner, a South African lawyer who at one stage acted for Mr Dutton. 56 Other evidence tendered on behalf of Mr Dutton and admitted by the magistrate included extracts from a book "Judging the Judges Judging Ourselves Truth Reconciliation and the Apartheid Legal Order" by David Dyzenhaus; extracts from a book Broederbond: The Super Afrikaners by Ivor Wilkins and Hans (Johannes) Strydom, including a list of members of the Broederbond; and some transcripts of proceedings in the South African Truth and Reconciliation Commission. 57 Affidavits were filed on behalf of the Republic of South Africa in response to the affidavits by Mr Dutton and his witnesses. These affidavits included affidavits by Mr de Villiers, Mr Van Staden, Mr Kitching and Mr Venter. In their affidavits these deponents denied many of the allegations Mr Dutton had made in his affidavit and some of the allegations made in their affidavits by his witnesses. 58 In the proceedings before the first defendant counsel for Mr Dutton sought to rely on a number of further affidavits by Mr Dutton sworn on 18 September 2000, 22 September 2000, 23 October 2000 and 30 October 2000. One feature of these affidavits was that a number of affidavits by persons other than Mr Dutton were annexed to an affidavit by Mr Dutton. 59 Counsel for the Republic of South Africa made a number of objections to these affidavits, on grounds including that they were not properly affidavits in reply and had not been filed within the time allowed in directions given by the first defendant and their admission would cause serious prejudice to the Republic of South Africa. Many parts of these affidavits by Mr Dutton, including annexed affidavits by persons other than Mr Dutton, were rejected by the first defendant. 60 A large number of documents tendered by one or other of the parties were admitted into evidence by the first defendant. However, a considerable number of documents tendered on behalf of Mr Dutton were not admitted by the first defendant. 61 There was extensive argument before the magistrate about the admissibility of affidavits or parts of affidavits or of documents, which one party or the other sought to have admitted into evidence. A whole volume of the Review Books (volume 12) consists of written objections to evidence which were taken before the first defendant and written submissions made to the first defendant supporting or opposing the evidence being admitted. Another volume of the Review Books (volume 13) consists principally of transcripts of oral argument before the first defendant relating to the admissibility of evidence. 62 In some cases where the first defendant refused to admit a document which had been proffered or tendered, she had the document marked for identification. In other cases a document which had been proffered or tendered but which was not admitted was not marked for identification. Volume 18 of the Review Books contains copies of documents which were tendered before the first defendant and not admitted by her and which were marked for identification and copies of other documents which were tendered before the first defendant and not admitted by her but which were not marked for identification. The latter list includes affidavits by deponents named Luitingh, Gunther, Spira, Mordt, Taylor, Marais-Petronella, Sibanda, Ndlova, Sprag, Evans, Perry and Hodge. 63 In November 1999 the matter was fixed for hearing before the first defendant in May 2000. However, all that happened in May 2000 was several days of argument about the admissibility of evidence and some procedural matters and about an application by Mr Dutton for an adjournment of the hearing on the grounds of the alleged late service of evidence by the Republic of South Africa. 64 As stated earlier in this judgment, the actual hearing of the application for extradition took place before the first defendant in November 2000. Oral evidence (mainly consisting of evidence in cross-examination and re-examination) was given by Mr Dutton, Mr Husain, Mr Strydom and Mr Barry Dutton and by Mr van Staden, Mr de Villiers, Mr Venter and Mr Kitching. The transcript of the oral evidence occupies several hundred pages of the Review Books.

THE FIRST DEFENDANT'S JUDGMENT 65 Although I have not yet considered the question of the nature of the review of the first defendant's orders I am required to undertake, I propose to refer at this stage of my judgment to some aspects of the first defendant's judgment of 18 December 2000. 66 At page 5 of her judgment the first defendant noted a submission on behalf of Mr Dutton relating to the warrant issued by Judge Streicher that "the charges should appear on or be annexed to the warrant, so that there can be no doubt that it relates to the precise charges in relation to which extradition is sought" and "there is nothing in the supporting documentation to link that warrant with the fourteen counts set out elsewhere in the supporting documents". These submissions were rejected by the magistrate, seemingly on the grounds that the statement required by s 19(3)(c)(ii) of the Act may be contained in more than one document. The magistrate referred to what Kenny J said in paragraph 30 of his judgment in McDade v The United Kingdom (1999) FCA 1868. 67 The first defendant noted a further submission in relation to the warrant issued by Judge Streicher that the warrant was a warrant for the arrest of Mr Dutton for his failure to appear on 7 February 1994 and that his failure to appear was not an offence for which his extradition was being sought or could be sought. I gather that the point of the submission was that the warrant was not a warrant for the arrest of Mr Dutton "for the offence(s)" for which his extradition was being sought. The magistrate rejected this submission on the grounds that "it is the amended warrant upon which the applicant now relies and on its face now (the amended warrant) is a warrant for the arrest of the person in relation to the fourteen counts of fraud". The first defendant was satisfied that the alleged offences of fraud fell within the definition of "extradition offence" in s 5 of the Act. 68 In her judgment the first defendant rejected a submission that the warrant was not "duly authenticated", holding that the warrant was duly authenticated by having been certified by the certificate of Mr Scholtz and by having been stamped or sealed by the Registrar of the High Court of South Africa on 29 December 1997. 69 In her judgment the first defendant also rejected a submission made on behalf of Mr Dutton that there was not, as required by s 19(3)(c)(ii), a sufficient statement setting out the conduct constituting the offence(s). The first defendant held that there was a sufficient statement setting out the conduct constituting the offences in the affidavits of Mr de Vries and Mr de Villiers, including the indictment annexed to Mr de Vries' affidavit. 70 In her judgment the first defendant then addressed the issue of dual criminality under s 19(2)(c) of the Act. The first defendant noted in particular a submission made on behalf of Mr Dutton that most of the alleged offences depended on the foreign exchange regulations in South Africa and the dual exchange rates of a commercial rand rate and a financial rand rate; that an essential element of many of the offences alleged was that Mr Dutton, with the object of obtaining an advantage, had falsely represented that he required foreign exchange for a purpose such as paying for plant which had been purchased from an overseas supplier, which would entitle him to receive foreign currency at the more favourable commercial rand rate; but that, because of the absence in Australia of any equivalent foreign exchange regulations "if he made any such false representation as alleged in Australia, it could not have been made in this country with the object of obtaining an advantage". The first defendant rejected this argument, principally, it would seem, on the grounds that the Republic of South Africa had charged Mr Dutton, not with breaches of the South African foreign exchange regulations, but with offences of fraud. 71 In her judgment the first defendant then considered whether Mr Dutton had satisfied her that there were substantial grounds for believing that there was an extradition objection. She set out the terms of the extradition objections in paragraphs (a), (b) and (c) of s 7 of the Act. She then referred to part of the judgment of Wilcox J in Pravato v The Governor of the Metropolitan Remand Centre (1986) 8 FCR 358 and appears to have regarded what Wilcox J said as authority that an offence is not a "political" offence, unless there is an "organised prolonged campaign involving a number of people". 72 In this part of her judgment the first defendant referred to evidence from Mr Dutton that he was opposed to apartheid, that he had stood for election, and had been elected, to a local government body in South Africa, the Linbro Park Ratepayers Association Committee, that in the election he had opposed candidates supported by the National Party and in particular by the then South African Defence Minister General Malan and he had thereby incurred the enmity of General Malan who had started a campaign against Mr Dutton. 73 The first defendant noted a submission made on behalf of Mr Dutton that there had been a conspiracy against him and that the parties to the conspiracy including all those involved in the prosecution, the trial judge, persons who had been involved in Mr Dutton's companies, the Governor and Deputy Governor of the Reserve Bank of South Africa and senior members of Ernst & Young. 74 The first defendant noted a further submission that all of the persons engaged in the prosecution had connections to the Afrikaner organisation, the Broederbond, which had the objective of ensuring that the government of South Africa and other South African organisations were dominated by Afrikaners. 75 The first defendant then said at page 12 of her judgment:- "All of those allegations are refuted by the applicant which called as witnesses some of the persons named by the respondent as being involved in the conspiracy against him and in particular Mr de Villiers, prosecutor, and Mr Kitching, then of South African police, who denied any personal knowledge of Malan and of being involved in the Broederbond. No cross-examination of those witnesses was directed to their either lying or obfuscating in their evidence on those points". 76 The first defendant continued:- "As it was stated in the submissions made on behalf of the respondent 'A substantial portion of the respondent's case on extradition objection concerns the proposition that his extradition is being sought in relation to foreign Exchange Control offences'. The reason for this proposition is to be found in the basis of his extradition objection that his prosecution is part of the political conspiracy against him by reason of his anti apartheid stand. His evidence was that the South African government introduced foreign Exchange Controls in order to obviate the impact of the United Nations Sanctions against the apartheid policies of that government and that since he did not support that government's policies he also did not support the foreign Exchange Controls. His actions in expatriating South African rand was in clear flagrance (sic) of the foreign Exchange Controls and therefore a political act on his part in defiance of the apartheid government. A good deal of evidence was adverted to in these proceedings to show the terms, nature and effects of South Africa's foreign Exchange Controls and in particular to demonstrate the repressive nature of those, but be that as it may it is difficult to see how the respondent's actions in flagrantly breaching those controls could amount to a political campaign on his part sufficient to engage the Republic of South Africa in a political conspiracy to destroy his business, rather it might be expected that he would simply be charged with the relevant offences in relation to those breaches. However, as it was stated by Mr de Villiers in evidence here such breaches are or would be of a lesser nature than the fraud charges. 77 The first defendant then quoted extensively from a judgment of French J in Cabal & Anor v United Mexican States & Anor (No.3) (2000) 186 A.L.R 188), especially at paragraphs 215, 216, 217, 218, 219, 220 and 227. Almost all of what French J said in those parts of his judgment related only to the extradition objection in s 7(b) of the Act. 78 The first defendant held that in the present case the material adduced on behalf of Mr Dutton did not satisfy one of the conditions stated by French J in par 227 of his judgment in Cabal (No 3) as being a condition which would usually have to be satisfied before an extradition objection under s 7(b) of the Act is made out, namely that "there is material of probative value on which the inference is open that the crucial decisions underlying the request for expedition by the requesting government had been taken because of the applicant's political opinions". 79 The first defendant added:- "Further to that, Mr de Villiers and Mr Kitching both were asked of their knowledge of the respondent prior to his being investigated for the offences with which he stands charged in South Africa and each of them stated that he was not known to them prior to that time". 80 The first defendant then found that the material adduced on behalf of Mr Dutton did not satisfy another of the conditions stated by French J in par 227 of his judgment in Cabal (No 3) as being a condition which would usually have to be satisfied before an extradition objection under s 7(b) is made out, namely that "the content and the history of expression of, or action upon, the asserted political opinion by the applicant is such as to be of demonstrable concern to the requesting government and to form a credible basis of that government's desire to prosecute or punish the applicant". 81 The first defendant accordingly found that Mr Dutton was eligible for extradition.

SUBMISSIONS 82 Many sets of written submissions were lodged with me, before, during and after the oral hearing of the review proceedings. The total length of the written submissions I received was several hundred pages. 83 Stated very broadly, the issues dealt with in the written submissions were:- 84 1. Whether there were defects in the supporting documents which had been produced to the first defendant, such that the condition of eligibility for surrender in s 19(2)(a) of the Act had not been satisfied. 85 2. Whether the requirement of "dual criminality" in s 19(2)(c) of the Act had been satisfied. 86 3. Whether there was sufficient grounds for believing that there were extradition objections within pars (a), (b) or (c) of s 7 of the Act. 87 Apart from the written submissions, lengthy oral submissions were made before me.

NATURE OF A REVIEW UNDER s 21 OF THE ACT 88 Earlier in this judgment I discussed at some length the judgment given by the first defendant in the proceedings under s 19 of the Act. A question which naturally arises is the nature of the review of the first defendant's decision which I am required to conduct under s 21 of the Act. 89 One of the question separately determined by Hill J in his judgment in Republic of South Africa v Dutton was "whether the Court on a review under s 21 of the Act can determine for itself whether a person whose extradition is sought is eligible for surrender". The answer given by Hill J to this question was "yes, but in so doing the Court is restricted to a consideration of the material that was before the magistrate". At p 136 Hill J said:- "From these matters it seems to me clear that the 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. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material". 90 In Cabal (No. 3) French J at par 115 said that he agreed with the passage in Hill J's judgment which I have just quoted. 91 On the appeal in Cabal (Cabal v United Mexican States (2001) FCA 427) 108 FCR 311) the Full Court of the Federal Court noted at par 100 that the parties agreed that "the proceedings in this court are by way of rehearing, albeit a rehearing limited to the material before the magistrate". 92 I was informed at an early stage of the hearing before me that the parties were in agreement that the review should be a rehearing in accordance with the principles stated by Hill J in Republic of South Africa v Dutton. 93 After the hearing before me had commenced, the High Court on 14 February 2002 published its reasons in Pasini v United Mexican States (2002) HCA 3. Counsel for Mr Dutton submitted that the judgment of the High Court in Pasini "does not really assist in determining what the nature of the review is" and counsel for the Republic of South Africa later said that his "preliminary view" was that counsel for Mr Dutton's submission was correct. No further submission was made by either counsel about the nature of a review under s 21 of the Act. 94 I consider that I should apply what Hill J said in Republic of South Africa v Dutton and approach the review as being a rehearing in which I have to reach my own conclusions on whether Mr Dutton is eligible for extradition. 95 As Hill J said in Republic of South Africa v Dutton a rehearing under s 21 is limited statutorily to the material before the magistrate (s 21(6)(d) of the Act). Another of the questions separately determined by Hill J in Republic of South Africa v Dutton was "whether material sought to be tendered before (the magistrate) but rejected by her is material included within the words 'material that was before the magistrate' in s 21(6)(d) of the Act". 96 At p 132 of his judgment Hill J said:- "It was agreed that the provision of s 21(6)(d) should be given a broad meaning so that the words 'material that was before the magistrate' should not be restricted merely to the material which the magistrate accepted in evidence but extended to material which either party sought to tender but the tender of which the magistrate rejected. I think that the parties are correct in reaching agreement on the answer to this question". 97 In Cabal (No.2) (2000) 172 A.L.R 43 French J held at pars 18 and 23 that:- "the material that was before the magistrate" included material proffered or tendered to the magistrate but rejected or not received by her. French J further held that, in relation to material proffered to but not accepted by the magistrate, a court conducting a review will hear submissions as to whether it should be considered as evidence in the proceedings. 98 On the appeal in Cabal the Full Court of the Federal Court expressed some doubt about the correctness of this holding by French J. (see pars 73, 151, 152 and 153). 99 At par 73 the Full Court, which included Hill J, said that the proposition that material that was before the magistrate included material which had been tendered but which had been rejected by the magistrate was "not self evident, if only because it would permit the judge conducting a review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence". However, the Full Court said that, as the parties were agreed that French J's construction was a correct construction of s 21(6)(d), the Full Court would accept it for the purposes of the appeal. 100 In the proceedings before me both counsel took the position that evidence which had been tendered or proffered to the first defendant but which had not been received into evidence by the first defendant was, nevertheless, "material which was before the magistrate" and it seems to me that I should adopt this position. 101 Another complicating factor is whether the Evidence Act applies in a review under s 21. 102 A conclusion stated by French J in par 23 of his judgment in Cabal (No.2) was that "in determining which of the materials before the magistrate it is to accept and take into account on the review, the court will apply criteria of relevance, weight and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or it is of little weight or that to receive it would unfairly prejudice a party to the review". 103 On appeal the Full Court said at par 141 that it was at least implicit that French J had considered that the provisions of the Evidence Act were not applicable to the proceedings before the magistrate and that conclusion seemed to the Full Court to be correct. At par 146 of the judgment of the Full Court the Full Court said that the approach taken by French J to the admissibility of evidence in the review proceedings had not been challenged on appeal. 104 At par 189 of its judgment the Full Court said that proceedings for review under s 21 of the Act are subject to the Evidence Act, notwithstanding that the initial proceedings before a magistrate under s 19 are not so subject. The Full Court went on the hold that French J in saying that material could be rejected by a judge conducting a review on the basis of its lacking weight or being unfairly prejudicial, was really applying discretionary powers under the Evidence Act. 105 In the proceedings before me counsel for the parties were not consistent in what they put to me about whether the Evidence Act applied to the review proceedings. 106 I consider that I am bound by what the Full Court of the Federal Court said in Cabal at par 189 and I should apply the Evidence Act. 107 As I have stated earlier in this judgment, much material proffered or tendered on behalf of Mr Dutton was rejected or at least not admitted by the first defendant. Counsel for Mr Dutton informed me during the hearing that such of this material as Mr Dutton really wished to rely on, was referred to in counsel for Mr Dutton's written submissions. 108 Rather than assay the arid and formidable task of attempting to decide, as to each piece of evidence sought to be relied on, whether it should be admitted according to the provisions of the Evidence Act, including s 135, or, if there is any difference, according to the criteria stated by French J in Cabal (No.2) (including, for example, whether a piece of evidence was properly evidence in reply or whether I should excuse a failure to file an affidavit within the time allowed by a direction given by the first defendant), I have decided that I should take into account all of the material sought to be relied on in counsel for Mr Dutton's written submissions, giving it such weight as I consider it deserves. 109 I accept a submission made by counsel for Mr Dutton that it would be inappropriate in the present proceedings to apply the rule in Browne v Dunn. Later in this judgment I will consider a submission made by counsel for Mr Dutton that I should apply the principle in Jones v Dunkel with respect to an alleged failure by the Republic of South Africa to call certain witnesses from South Africa. 110 I have already referred to the fact that there were conflicts in the evidence given in the proceedings before the first defendant, between parts of the evidence adduced on behalf of Mr Dutton and parts of the evidence of witnesses for the Republic of South Africa. Apart from these conflicts, there were numerous assertions by witnesses, which were disputed by counsel for the opposing party, such as assertions by witnesses like Mr van Staden and Mr Kitching to the effect that they had no ulterior purpose in investigating the offences allegedly committed by Mr Dutton. 111 The question arises of whether, insofar as I should attempt to resolve such conflicts or attempt to determine what disputed evidence I accept, I should have any regard to any findings made by the first defendant in her judgment. The first defendant, of course, had the advantage, which I have not had, of seeing and hearing witnesses such as Mr Dutton, Mr de Villiers, Mr van Staden, Mr Venter and Mr Kitching being subjected to lengthy cross-examination. 112 Counsel for Mr Dutton in submitting that a review under s 21 is in the nature of a rehearing said that the rehearing was "subject only possibly to Warren v Coombes (Warren v Coombes (1978-1979) 142 CLR 531) type considerations. But we say that there were no Warren v Coombes type findings by the trial judge (sic) in this case". 113 By "Warren v Coombes type findings" I understand counsel to be referring to any findings made by a judicial officer before whom oral evidence has been given about the credibility of the witnesses giving the evidence, including whether contentious evidence given by the witnesses should be accepted. 114 I do not accept that the first defendant did not make any "Warren v Coombes type findings". In my opinion, it is clearly implicit in the first defendant's judgment that she accepted the evidence of witnesses such as Mr de Villiers and Mr Kitching refuting the allegations made by Mr Dutton which she recorded in her judgment. 115 In my opinion, it also clearly implicit in the first defendant's judgment that she accepted evidence by each of Mr de Villiers and Mr Kitching that Mr Dutton was not known to the witness before the investigation in South Africa into the alleged offences commenced. 116 I consider that insofar as I attempt to resolve conflicts in the evidence or otherwise attempt to determine what disputed evidence I should accept, I should give weight to these findings by the first defendant. 117 In Cabal (No.2) French J held that a party on a review is not limited to the points of law argued before the magistrate, except to the extent that any new point of law would necessitate (i) reliance upon material not before the magistrate (ii) reliance upon material tendered to the magistrate for a purpose other than that for which it was tendered, where it was tendered for a particular purpose. 118 In the review proceedings counsel for the Republic of South Africa submitted, with reference to s 19(2)(c), that Mr Dutton's conduct, if it had taken place in Australia, would have constituted certain offences additional to the offences which had been relied on by the Republic of South Africa before the first defendant, such as offences under s 1307 of the Corporations Law and under reg 5(5) and reg 40 of the Banking (Foreign Exchange) Regulations. Although counsel for Mr Dutton initially complained about the Republic of South Africa attempting to rely on additional Australian offences, this complaint was not persisted in, after the proceedings had been adjourned and counsel for Mr Dutton had had an adequate opportunity of considering these additional Australian offences. I consider that the Republic of South Africa was entitled, in accordance with the principle stated by French J, to seek to rely on these additional Australian offences. 119 A final matter is the general approach a judge should adopt in a review proceeding. In Cabal (No. 3) French J said at pars 132 and 133 (omitting some citation of authorities):- "132. In my opinion the Extradition Act is to be construed consistently with the approach to the construction of the treaties to which it gives effect. This requires an approach based on the ordinary meaning of the words of the Act and its context and purpose. Such principles may not yield a narrowly defined meaning…. Any remaining ambiguity or doubt, whether of meaning or application, should be resolved in favour of the liberty of the individual. A narrow technical approach, and the application of interpretations based on technical rules of the local law, is not appropriate. As is reflected in its partly ambulatory character, extradition legislation must be construed …in a fashion apt to accommodate criminal procedure of extradition countries which operates in a different fashion to that generally applicable in common law jurisdictions… 133. Questions of construction apart, there is also the issue of how the statute is to be applied in particular cases. I have already referred to passages from the judgments in Prabowo, De Bruyn and Timar which exhort a strict approach to compliance with the formalities required by the Act. In this case an important question of application arises in relation to the sufficiency of supporting documents required to be produced to the magistrate under s 19. Again, there is a tension between the need to ensure that the individual's liberty is not to be affected except by statutory authority and in accordance with its terms and conditions and the need to avoid permitting the legislation to become a minefield of technicalities which defeat its purpose. Compliance with documentary requirements is a matter of 'practical judgment and assessment not for overzealousness in discerning deficiencies'. In Timar , ( Timar v Republic of Hungary (1999) FCA 1518) Weinberg J recognised 'that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own and perhaps less than perfect from our perspective'. Such documents were, in his Honour's opinion, to be read 'fairly and not perversely' (par 63). His Honour went on to say at par 64: 'It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the party seeking extradition.'"

WHETHER THERE WERE DEFECTS IN THE SUPPORTING DOCUMENTS WHICH WERE PRODUCED TO THE FIRST DEFENDANT, SUCH THAT THE CONDITION OF ELIGIBILITY FOR SURRENDER IN S 19(2)(A) OF THE ACT WAS NOT SATISFIED 120 Earlier in this judgment I set out the provisions of s 19 of the Act. Under s 19(2)(a) a person is eligible for surrender in relation to an offence, only if supporting documents in relation to the offence have been produced to the magistrate. Under s 19(3)(a) the supporting documents in relation to an offence include, if the offence is an offence of which the person is accused, a duly authenticated warrant for the arrest of the person for the offence or a duly authenticated copy of such a warrant. Section 19(6) provides that any document which is duly authenticated is admissible in the proceedings. Section 19(7) provides, so far as is relevant, that a document is duly authenticated, if (a) it purports to be signed or certified by a judge, magistrate or officer of the extradition country and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with the official or public seal of the extradition country or of a minister, department or officer of the Government of the extradition country. 121 In the present case the documents relied on by the Republic of South Africa as being the supporting documents are, or include, the documents comprising exhibit 1 in the proceedings before the first defendant. A copy of exhibit 1 is included in the first volume of the Review Books. During the hearing before me the original exhibit 1 before the first defendant was tendered by counsel for the Republic of South Africa and it became exhibit 1 in the review proceedings. As indicated earlier in this judgment, exhibit 1 includes a certificate by Mr Hendricks, a certificate by Mr Scholtz, an affidavit by Mr de Vries to which are annexed inter alia a copy of the indictment presented against Mr Dutton and a copy of the warrant issued by Judge Streicher for the arrest of Mr Dutton, and an affidavit by Mr de Villiers. 122 Submissions were made on behalf of Mr Dutton that the documents in exhibit 1 relied on by the Republic of South Africa as being supporting documents were defective in that there were defects in the document being annexure "C" to Mr de Vries' affidavit, which was relied on by the Republic of South Africa as being a duly authenticated copy of a warrant issued by the Republic of South Africa for the arrest of Mr Dutton for the offences for which his extradition was being sought. Submissions were also made by counsel for Mr Dutton in relation to the document or documents relied on by the Republic of South Africa as being a duly authenticated statement in writing setting out the conduct constituting the offences (s 19(3)(c)(ii)) but these submissions were made in the context of a general submission that the requirement of dual criminality under s 19(2)(c) was not satisfied and it is convenient to postpone dealing with these submissions until I deal with the general submission that the requirement of dual criminality was not satisfied. 123 It is convenient to set out in full the terms of the copy of the warrant in exhibit 1. " IN THE SUPREME COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION) To the Sheriff of the Province of the Transvaal or his lawful Deputy THE STATE v EDWARD ISAAC DUTTON (hereinafter called the 'accused') Whereas 1. The accused had been charged with the crime of fraud (14 counts): (signature appears) 2. The accused had been released on bail; 3. The accused failed to remain in attendance at his trial; and Whereas the court on 7 February 1994 issued a warrant for the arrest of the accused: This is to command you to search for and apprehend the person of the accused wherever the accused may be found within the boundaries of the Republic of South Africa, and detain the accused in your custody in one of the State's prisons in this Province, until the accused shall be brought to trial for the said crime, or be discharged from custody according to law. FOR WHICH THIS SHALL BE YOUR WARRANT. GIVEN UNDER MY HAND AT JOHANNESBURG THIS 7th DAY OF FEBRUARY 1994 .

(Signature appears) (Signature appears) REGISTRAR PRESIDING JUDGE " 124 As I have earlier indiocated, the warrant as originally issued by Judge Streicher on 7 February 1994 did not contain the handwritten words figures and brackets "(14 counts)" after the word "fraud" in recital 1 or the signature (or rather initials) of Judge Streicher written above that matter. At a time which Mr de Villiers could not precisely recall when he was giving evidence but which must have been on or about 7 September 1995, Judge Streicher, at Mr de Villiers' request, which he made for the purposes of the first extradition request, amended the original warrant by adding the words, figures and brackets and initialling the added matter. 125 The copy of the warrant in exhibit 1 bears copies of two separate seals of the Registrar of the Supreme Court of South Africa, with the dates 7 February 1994 and 7 September 1995 It also bears an original seal of the Registrar of the High Court of South Africa with the date 29 December 1997, which was just before the second extradition request. 126 There was no dispute in the review proceedings that the document was a "warrant", within the definition propounded by French J at pars 144 and 145 of his judgment in Cabal (No.3), which were approved on appeal by the Full Court at par 108 of its judgment. 127 The first submission made by counsel for Mr Dutton about the copy warrant in exhibit 1 was that it was falsely described by all of Mr Scholtz in his certificate and by Mr de Vries and Mr de Villiers in their affidavits, as being a copy of the original warrant, whereas the copy of the warrant in exhibit 1 was not a copy of the original warrant issued on 7 February 1994 but a copy of the original warrant as later altered by the addition of the matter "(14 counts)" and by the addition of the court stamps and that, because the copy of the warrant had been falsely described, it was not duly authenticated as required by s 19(3)(c). It was further submitted by counsel for Mr Dutton that the copies of the signatures of Judge Streicher and the copies of the court seals on the copy warrant were incapable of authenticating the copy warrant. 128 I accept that the copy warrant in exhibit 1 is a copy, not of the original warrant, but of the original warrant as altered by the amendment made by Judge Streicher and by the affixing of the court seals and that the certificate by Mr Scholtz and the affidavits by Mr de Vries and Mr de Villiers are not strictly accurate in describing the copy document as being a copy of the original warrant. Nevertheless, I consider that the copy of the warrant in exhibit 1 is duly authenticated in accordance with s 19(7) of the Act. 129 Under s 19(3)(a) it is not necessary that the original warrant for the arrest of the person sought to be extradited should be produced to the magistrate hearing the extradition proceedings. It is sufficient that a copy of such a warrant should be produced. In my opinion, a copy of a warrant "purports" to be signed or sealed within s 19(7), if a copy of a signature or seal appears on the copy and it is not necessary that an original signature or seal should have been placed on the copy. 130 In the present case par (a) of s 19(7) has been complied with, because the copy warrant (both the original warrant and the amendment) purports to be signed by Judge Streicher, a judge of a court in the Republic of South Africa. 131 So far as par (b) of s 19(7) is concerned, I consider that par (b) is satisfied in all of a number of ways. The copy warrant "purports" to be authenticated by the oaths of Mr de Vries and Mr de Villiers, notwithstanding any misdescription of the document in their affidavits. Alternatively, the copy warrant purports to be sealed with the seal of the Supreme Court or High Court of South Africa. Even if the copies of the court seals were incapable of authenticating the copy warrant, the copy warrant bears the original seal of the Registrar of the High Court of South Africa affixed on 29 December 1997. As a further alternative, the copy warrant is a part of a physically integrated bundle of documents tied together with tape passing through holes punched in each page of the documents, all of which are authenticated by the original seal of the Department of Justice of the Republic of South Africa placed on the cover sheet of the bundle (see Cabal (No.3) at par 172). 132 It was next submitted on behalf of Mr Dutton that there was not a sufficient description within the warrant of the offences for which the warrant had been issued, so that it was impossible to determine whether the offences for which the warrant had been issued were the same as the offences for which Mr Dutton's extradition was being sought. It was pointed out that, even after taking into account the amendment to the warrant, the only description in the warrant of the offences for which it was issued was "fraud 14 counts)". It was submitted that this description in the warrant was insufficient. 133 In written submissions counsel for Mr Dutton anticipated that counsel for the Republic of South Africa would submit (as was in fact subsequently submitted), that the offences for which the warrant was issued were sufficiently identified in par 8 of Mr de Vries' affidavit, in which Mr de Vries said that "as a result of Dutton's failure to appear (on 7 February 1994) the presiding judge at the trial issued a warrant for his arrest on the fourteen charges in the indictment". 134 In response to this anticipated argument it was submitted by counsel for Mr Dutton that it is necessary for a warrant itself to identify the offences for which it is issued and it is not permissible to resort to evidence extrinsic to the warrant to identify the offences for which the warrant is issued. Alternatively, it was submitted that, if it was permissible to resort to evidence extrinsic to the warrant, Mr de Vries' affidavit did not sufficiently identify the offences for which the warrant had been issued. In par 6 of his affidavit Mr de Vries said that a true copy of the indictment was annexed to his affidavit and marked with the letter "B". However, it was submitted, the only document annexed to Mr de Vries' affidavit and marked with the letter "B" was one page of exhibit 1 (which is marked as p 28 in exhibit 1 and a copy of which is p 40 in the Review Books), which described the crimes of which it was alleged Mr Dutton was guilty as simply "FRAUD" (counts 1-14)" and which, accordingly, gave no further information about the offences for which the warrant was issued than the warrant itself did. 135 It was accepted by counsel for Mr Dutton that this page was followed by fifty-six other pages, which, on the face of them, constituted an indictment containing fourteen counts. However, it was submitted that these pages could not be regarded as being, or being part of, the indictment referred to by Mr de Vries in par 6 of his affidavit, because, inter alia, p 28 by itself was capable of being regarded as forming an indictment, p 28 was the only page marked with the letter "B" and was not marked as being the first page of a document consisting of a number of pages and none of the pages after p 28 had any annexure note or were signed or initialled by Mr de Vries or by Mr Scholtz before whom the affidavit had been sworn. 136 I accept that it is necessary to establish that the warrant relied on as being a supporting document within s 19(3)(a) is a warrant for the arrest of the person sought to be extradited for the offences in relation to which his extradition is sought. 137 However, I do not consider that the only ways in which the offences for which a warrant was issued can be identified are by the terms of the warrant itself or by express reference in the warrant to some other document in which the offences are identified. In my opinion, there is no reason why it should not be permissible to refer to evidence extrinsic to the warrant to prove what the offences were for which the warrant was issued and that those offences were the same offences as the offences for which extradition is being sought. Accordingly, I consider that it is permissible to refer to Mr de Vries' affidavit. 138 I do not accept that "the indictment" referred to in par 6 of Mr de Vries' affidavit is limited to a single page in exhibit 1, (p28). Without making any resort to any presumption of regularity, it is clear that the indictment referred to by Mr de Vries in his affidavit is not just the single page, p 28, but that page and the following fifty-six pages. There are many features of the documents in exhibit 1 pointing to this conclusion, only some of which I will mention. 139 Exhibit 1 has an index. In that index "annexure 'B'" is listed at p 28. The next document in the index, "annexure C", is listed at p 85. The document commencing at p 85 is marked with the letter "C". In his affidavit Mr de Vries says that the offences are "set out" in the indictment but the offences are set out, not on p 28 itself, but on the following pages. On p 28 after Mr Dutton's name and address are given there appear the words "(hereinafter referred to as the accused)". There is no subsequent reference to "the accused" on p 28. On the pages following p 28, commencing at p 29, there are references to "the accused", without any further statement of who "the accused" is. The pages following p 28 are numbered consecutively at the top, the page immediately following p 28 being numbered 2, thereby indicating that p 28 is the first page of a document consisting of a number of pages. 140 Alternatively to my holding that the offences for which the warrant was issued are sufficiently identified by Mr de Vries' affidavit, I accept a submission made by counsel for the Republic of South Africa that the copy warrant is part of a physically integrated bundle and it is permissible to refer to other parts of the bundle to determine what the offences for which the warrant was issued were. An examination of the other documents in the bundle shows that the offences for which the warrant was issued were the fourteen offences described in the multi-page indictment. 141 It was finally submitted on behalf of Mr Dutton that the warrant was merely a bench warrant, that is a warrant issued because Mr Dutton had failed to appear at his trial on 7 February 1994 and that, as a bench warrant, it was not "a warrant …. for the arrest (of Mr Dutton) for the offence(s)" for which his extradition was being sought, within the terms of s 19(3)(a). 142 In support of the submission that the warrant was a bench warrant, counsel for Mr Dutton referred to a number of items of evidence, some of which, such as affidavit and oral evidence by Mr Husain, had been admitted by the first defendant and some of which had not been admitted by the first defendant but was included in volume 18 of the Review Books. 143 In evidence which was admitted by the first defendant Mr Husain said that the warrant was issued as a result of Mr Dutton having breached a condition of his bail and the warrant was not a warrant for the arrest of Mr Dutton on the charges of fraud. 144 Evidence which was tendered to the first defendant but not admitted by her included an affidavit by Mr Luitingh, a former South African lawyer who had specialised as an advocate in criminal law. In accordance with my general approach I am prepared to take into account Mr Luitingh's affidavit. 145 In his affidavit Mr Luitingh said that the warrant issued on 7 February 1994 "is at best a bench warrant for failing to remain in attendance at trial", that the warrant had been issued pursuant to s 67 of the South African Criminal Procedure Act, the heading to which is "Failure of accused on bail to appear" and not pursuant to s 43, the heading to which is "Warrant of arrest may be issued by a magistrate or justice" and which states that a magistrate or justice may issue a warrant for the arrest of any person, but only if certain conditions are satisfied, including that the warrant sets out the offence alleged to have been committed and that the warrant states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence. 146 I accept that the warrant was issued pursuant to s 67 of the South African Criminal Procedure Act, because Mr Dutton having been on bail failed to remain in attendance at his trial. However, I consider that the warrant can still properly be described as a warrant for the arrest of Mr Dutton for the offences for which his extradition is being sought. It was not disputed that the document is a warrant or that it is a warrant for the arrest of Mr Dutton. The only question is whether it is a warrant for the arrest of Mr Dutton "for" the offence(s) for which his extradition is being sought. 147 The warrant recites that Mr Dutton had been charged with the crime of fraud (14 counts), that he was released on bail and that he had failed to remain in attendance at his trial and the warrant then commands the Sheriff of the Province of the Transvaal to search for Mr Dutton, apprehend him and detain him until the accused shall be brought to trial "for the said crime". Such a warrant is, in my opinion, a warrant within the terms of s 19(3)(a). 148 In the present case, where Mr Dutton had already been arrested and had been standing trial for two years on the charges of fraud, it would have been quite inappropriate to seek a warrant under s 43 of the South African Criminal Procedure Act. In any event, the requirements for the issue of a warrant under s 43 would have been substantially satisfied, because the offences alleged to have been committed by Mr Dutton had been clearly specified and at the trial the prosecution case had been presented in full by the giving of sworn evidence and there was clearly information on oath giving rise to a reasonable suspicion that Mr Dutton had committed the alleged offences. 149 The warrant issued by Judge Streicher satisfies the principle which underlies the requirement that the supporting documents include a warrant issued by the extradition country, that a person should not be liable to be extradited unless he is liable to arrested in the country requesting extradition. 150 In my opinion there were no defects in the supporting documents produced to the magistrate such that the condition of eligibility for surrender in s 19(2)(a) of the Act was not satisfied.

Whether the requirement of dual criminality under s 19(2)(c) of the Act was satisfied. 151 Counsel for the Republic of South Africa submitted, and counsel for Mr Dutton disputed, that, if the conduct of Mr Dutton or equivalent conduct had taken place in Australia or, more particularly, New South Wales, that conduct or that equivalent conduct would have constituted offences. 152 I have already set out the terms of s 19(2)(c) and s 19(3)(c)(ii) of the Act. As was stated by Hill J and Hely J in their joint judgment in De Bruyn v Republic of South Africa (1999) 96 FCR 290 at par 7, "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". See also Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 300. 153 Apart from s 19(2)(c) and s 19(3)(c)(ii), it is necessary to refer to s 10(2) and s 10(3) of the Act. 154 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". 155 Section 10(3) provides, so far as is relevant:- "In determining for the purposes of … paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect: (a) where the conduct or equivalent conduct consists of 2 or more acts or omissions - regard may be had to all or to only one or some of those acts or omissions; (b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded". 156 In s 5 of the Act the expression "extradition offence" is defined as including an offence for which the maximum penalty is imprisonment for a period of not less than twelve months. It was not disputed that all of the offences which were mentioned in submissions about the requirement of dual criminality would fall within the definition of "extradition offence". 157 In Cabal (No. 3) at pars 208 and 209 French J set out a number of propositions which he derived from the judgment of Kenny J, with whom the other members of the Full Court agreed, in McDade v The United Kingdom (1999) FCA 1868. These propositions set out by French J were:- "1. The purpose of a statement setting out the conduct constituting the offence is to assist the magistrate in determining eligibility for surrender under s 19. 2. The Act requires a clear and coherent statement of the actual acts or omissions said to constitute the offence. A simple definition of the offence will not suffice. The acts or omissions are the elements of the offence, not the evidence relied upon to prove them. 3. The statement must be such as to permit the magistrate in s 19 proceedings to be satisfied whether the conduct, if it had taken place in that part of Australia where the proceedings are conducted, would constitute an extradition offence. 4. A document which is so vague and general and disorganised that the relevant acts or omissions cannot be reasonably identified will not meet the requirement. This is to be decided as 'a matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies'. 5. A statement of conduct does not fail to comply with s 19(3)(c)(ii) only because it contains facts which are in addition to the facts necessary to constitute the extraditable offence. 6. The one statement may set out conduct relating to more than one extradition offence provided it speaks with sufficient specificity to permit the magistrate charged with conducting the proceedings to discharge the statutory task. 7. The statement may be found in more than one document." 158 See also the judgment of the Full Court in Cabal at pars 115-119. 159 In the present case it was submitted by counsel for Mr Dutton that it was necessary to identify and isolate what document in the supporting documents was the statement setting out the conduct constituting the offences. Counsel referred to a part of par 18 of the joint judgment of Hill J and Hely J in De Bruyn in which their Honours said that "the identification of the writing said to satisfy the requirements of s 19(3)(c)(ii) is, in a sense, a question of fact". It was then submitted that, because Mr de Villiers' affidavit was headed "Supporting Affidavit: Statement of Facts" and because part 3 of Mr de Villiers' affidavit was headed "Statements of Acts and Omissions", Mr de Villiers' affidavit, or only part 3 of his affidavit, should be regarded as the only document being a statement setting out the conduct constituting the offences and the Republic of South Africa should not be allowed to rely on any other documents and, in particular, should not be allowed to rely on the counts in the indictment which was annexed to Mr de Vries' affidavit. Counsel for Mr Dutton said that, although there were many similarities between the counts in the indictment and the statement of acts and omissions in Mr de Villiers' affidavit, the counts in the indictment contained, and the statement in Mr de Villiers' affidavit did not contain, allegations about Mr Dutton's state of mind, for example that he had an intention to defraud or that in making a representation he had the intent of obtaining an advantage. 160 Counsel for Mr Dutton acknowledged that in McDade and also in De Bruyn it had been held that a statement of the conduct constituting the offence or offences might be found in more than one document. However, counsel attempted to distinguish those cases, mainly on the basis that each of them was to be regarded as simply a decision on its own facts. 161 In my opinion, the Republic of South Africa is entitled to rely on the counts in the indictment, as well as Mr de Villiers' affidavit, as constituting a statement in writing setting out the conduct constituting the offences, as required by s 19(3)(c)(ii). It was clearly held in McDade, De Bruyn and Cabal, that the statement required by s 19(3)(c)(ii) may be constituted by a number of documents. In McDade Kenny J, with the concurrence of the other members of the Court, said at par 30:- "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: see Wiest, ( Wiest v Director of Public Prosecutions (1988) 23 FCR 472) especially at 519-520 per Gummow J and De Bruyn . The critical factor is that, collectively, the documents constitute a duly authenticated statement in writing of the relevant acts and omissions, being acts and omissions which are readily and clearly identifiable by reference to those documents". 162 In the present case, both in the proceedings before the first defendant and in the review proceedings before me, the Republic of South Africa identified both the indictment and Mr de Villiers' affidavit as being documents it relied on to establish compliance with s 19(3)(c)(ii). The fact that the Republic of South Africa proffered the indictment as being one of the documents on which it relied is relevant to the issue of which document or documents in the supporting documents should be regarded as constituting the statement of conduct required by s 19(3)(c)(ii). See De Bruyn at par 18. 163 The offences which the Republic of South Africa alleges that Mr Dutton committed are described in the supporting documents as fourteen offences of "fraud". An essential element of any offence of fraud is a fraudulent state of mind on the part of the offender. It would be extraordinary if the Republic of South Africa could not rely on a part of the supporting documents in which it is alleged that Mr Dutton had a fraudulent state of mind. 164 Part 3 of Mr de Villiers' affidavit is headed "Statement of Acts and Omissions" and the individual statements in Part 3 are in accordance with the heading: that is they are limited to assertions of acts and omissions and do not include assertions about states of mind. 165 In the course of oral argument counsel for Mr Dutton conceded that the Republic of South Africa could rely on the "summary of substantial facts" towards the end of the indictment as being part of the statement under s 19(3)(c)(ii). If this is so, it is difficult to see why the Republic of South Africa should not be permitted to rely on the counts in the earlier part of the indictment. 166 A submission was made by counsel for Mr Dutton that the document or documents relied on by the extradition country as setting out the conduct constituting the offence or offences should contain only a statement of the conduct constituting the offences and no other matter. This submission is contrary to much authority (see for example McDade at pars 18-22) and I reject it. In McDade Kenny J recognised the possibility that the inclusion of extraneous facts in a statement might render the statement so confused and misleading that the statement would not amount to a compliance with s 19(3)(c)(ii) and would be incapable of fulfilling its statutory purpose. Having examined the indictment and Mr de Villiers' affidavit, I am satisfied that this did not happen in the present case. 167 It was conceded by counsel for Mr Dutton that conduct constituting more than one offence could be set out in the same document or in the same part of a single document. However, it was submitted that, if this happened, it was essential that it be made clear which conduct related to which offence. See the sixth proposition stated by French J in pars 208 and 209 of his Honour's judgment in Cabal (No.3). It was then pointed out by counsel for Mr Dutton that in part 3 of Mr de Villiers' affidavit there was a single, combined statement of the acts and omissions for counts 6 and 7 in the indictment and it was submitted that it was not possible to determine which of the acts and omissions related to the offence charged in count 6 and which related to the offence charged in count 7, and, hence, so far as the offences alleged in counts 6 and 7 were concerned, there was no proper statement setting out the conduct constituting the offences. 168 I do not consider that this submission should be upheld. 169 Even if the statement setting out the conduct constituting the offences charged in counts 6 and 7 was confined to part 3 of Mr de Villiers' affidavit, it is clear from part 3 that the two offences are based on substantially similar conduct by Mr Dutton, the first offence relating to the presentation by Mr Dutton on or about 13 November 1986 of an Interboard SA cheque for an amount of R5,703,567.38 and the second offence relating to the presentation by Mr Dutton on or about 18 November 1986 of an Interboard SA cheque for an amount of R5,710,034.01. 170 In any event, I have held that the indictment can be regarded as one of the documents constituting the statement within s 19(3)(c)(ii). It is true that in the indictment there is one combined pleading of counts 1 to 7. However, in annexure "A" to the indictment particulars of the individual counts are given and the particulars given of count 6 are the date 13 November 1986 and the amount "(approximately R5,703,567)" and the particulars given of count 7 are the date 18 November 1986 and the amount "(approximately R5,710,034)". 171 It was submitted by counsel for the Republic of South Africa in relation to each of the fourteen offences charged in the indictment, that, if the conduct constituting the offence had taken place in New South Wales at the time the extradition request was received in January 1998, it would have constituted an offence or offences in New South Wales punishable by not less than twelve months imprisonment. Henceforth in this judgment I will sometimes refer to the asserted offences in New South Wales as the "equivalent offences". 172 In initial written submissions counsel for the Republic of South Africa distinguished between the offences which, it was submitted, the conduct would have constituted in New South Wales, if regard was had only to the conduct set out in the indictment, and the offences which, it was submitted, the conduct would have constituted in New South Wales, if regard was had both to the conduct set out in the indictment and the conduct set out in the affidavit of Mr de Villiers. As I have held that both the indictment and Mr de Villiers' affidavit form parts of the s 19(3)(c)(ii) statement, it is unnecessary to maintain this distinction. 173 As to the offences charged in the first twelve counts in the indictment, apart from the offence charged in count 11, it was submitted that the equivalent offences would have been offences under s 29B and s 29D of the Commonwealth Crimes Act, offences under s 176A, s 178BA and s178BB of the New South Wales Crimes Act and offences under reg 42 of the Banking (Foreign Exchange) Regulations. 174 As the offence charged in count 11, it was submitted that, because it was not alleged that Mr Dutton had actually obtained any benefit or advantage or that any person had been induced to act to that person's detriment, it might be necessary in the case of the Commonwealth offences to invoke s 7 of the Commonwealth Crimes Act, as well as a provision creating a substantive offence, and in the case of the New South Wales offences to invoke s 344A of the New South Wales Crimes Act, as well as a provision creating a substantive offence. 175 I will set out the relevant provisions of the Commonwealth and New South Wales Crimes Acts. 176 Section 29B of the Commonwealth Crimes Act provides:- " False representation Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence. Penalty: Imprisonment for 2 years". 177 Section 29D of the Commonwealth Crimes Act provides:- " Fraud A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence. Penalty: 1,000 penalty units or imprisonment for 10 years, or both". 178 Section 176A of the New South Wales Crimes Act provides:-

" Directors etc cheating or defrauding Whosoever, being a director, officer, or member, of any body corporate or public company, cheats or defrauds, or does or omits to do any act with intent to cheat or defraud, the body corporate or company or any person in his or her dealings with the body corporate or company shall be liable to imprisonment for 10 years". 179 Section 178BA of the New South Wales Crimes Act provides in part:- " Obtaining money etc by deception (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 … 180 Section 178BB of the New South Wales Crimes Act provides in part:- " Obtaining money etc by false or misleading statements (1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years. 181 The principal submission made by counsel for Mr Dutton in regard to these sections of the Commonwealth and New South Wales Crimes Acts was that, in order to determine whether the requirement of dual criminality under s 19(2)(c) were satisfied, it was necessary to look at Mr Dutton's alleged conduct in South Africa "in its specificity". In the case of each of the first twelve counts the alleged conduct by Mr Dutton in South Africa was the making by him to a bank of a knowingly false representation that a South African company controlled by him was purchasing equipment from an overseas supplier, the representation being made by Mr Dutton with the intention of inducing the representee to permit him to buy foreign currency at the favourable commercial rand rate of exchange. It was submitted that such representations could only be made and could only have any materiality in a country in which there were foreign exchange controls and a system of dual exchange rates. Such representations could not have been made in Australia, because of the absence in Australia of foreign exchange controls and dual exchange rates. Even if such representations could have been made in Australia, they would have been quite immaterial to any providing of foreign currency by a bank and hence could not have been made with the intention of inducing a bank to provide foreign currency and could not have operated as any inducement to a bank to provide foreign currency. 182 Accordingly, even if similar representations had been made in New South Wales, they could not have been made by the representor with a view to obtaining an advantage (s 29B of the Commonwealth Crimes Act); the representee could not have been defrauded by the making of the representation (s 29D of the Commonwealth Crimes Act); the representor could not have defrauded anyone by the making of the representation (s 176A of the New South Wales Crimes Act); the representor could not have obtained any advantage by the making of the representation (s 178BA of the New South Wales Crimes Act); and the representor could not have had the intention of obtaining an advantage by the making of the representation (s 178BB of the New South Wales Crimes Act). 183 A further argument put by counsel for Mr Dutton, in the case of allegedly equivalent offences under the Commonwealth Crimes Act, was that the Reserve Bank of South Africa was not "equivalent" to "a public authority under the Commonwealth". 184 In reply to the principal submission made by counsel for Mr Dutton, it was submitted by counsel for the Republic of South Africa that Mr Dutton's alleged conduct in South Africa should not be described as specifically as counsel for Mr Dutton had submitted it should be. Rather, Mr Dutton's conduct in South Africa should be described at a level appropriate to a statement of the elements of an offence: such as, making a knowingly false representation with the intention of obtaining an advantage. 185 It was submitted by counsel for the Republic of South Africa that, if counsel for Mr Dutton's approach was correct, then, even though a person sought to be extradited had engaged in conduct in the extradition country such that all the elements of an offence of fraud in Australia would be satisfied, nevertheless if, because of differences between the legal systems in the extradition country and Australia, that precise conduct could not have occurred in Australia, the requirement of dual criminality in s 19(2)(c) would not be satisfied and the person could successfully resist extradition. 186 It was submitted by counsel for the Republic of South Africa that there was a sufficient equivalence between the Reserve Bank of South Africa and "a public authority under the Commonwealth". Counsel pointed to evidence that the Reserve Bank of South Africa was established under South African legislation, that the South African Government appointed the Governor, the Deputy Governor and seven directors of the Reserve Bank of South Africa and that the Reserve Bank of South Africa had the day to day management of the South African foreign exchange regulations. 187 Section 19(2)(c) contains the expression "or equivalent conduct". The condition of eligibility for surrender in s 19(2)(c) will be met, if the magistrate is satisfied that, if the conduct of the person constituting the offence in the extradition country "or equivalent conduct" had taken place in Australia, that conduct "or that equivalent conduct" would have constituted an extradition offence in Australia. Written submissions and oral submissions were made by both counsel on the proper interpretation of the expression "equivalent conduct" in s 19(2)(c). 188 Both counsel referred to Riley v the Commonwealth (1985) 159 CLR 1 at 8, where Gibbs CJ, Wilson J and Dawson J in their joint judgment said, with reference to the words "equivalent act or omission" in s 4 (1A) of the Extradition (Foreign States) Act 1966:- "It follows that if the words of s 4 (1A) are given their ordinary and natural meaning, continuing criminal enterprise is an extraditable crime. Some of the acts which, together with others, constituted the offence (or equivalent acts) would, if they had taken place in New South Wales, have constituted an offence against the law in force in that part of Australia, namely a law that is described in Sched. 1. The reference in the sub-section to an 'equivalent act or omission' is to an act or omission which would be the same as the act or omission which is an element of the offence against the law of the foreign state were it not for the fact that the law of the foreign state requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign state. For example, the act of importing narcotics into Australia is an 'equivalent act' to the act of importing narcotics into the United States". 189 Both counsel also referred to the decision of the Full Court of the Federal Court in Linhart v Elms (1988) 81 ALR 557, which was also a decision on the Extradition (Foreign States) Act 1966. 190 In Linhart v Elms at p 571 Fox J quoted the passage in the joint judgment in Riley which I have quoted and said at p 572 "it seems to me clear that the judges were not intending to give a full and complete exegesis of the phrase". At p 571 his Honour had said:- "By the very nature of extradition law, when double criminality in one sense or another has to be established, a translation or substitution of some factors has to take place. Locality is an obvious one, but, depending on the context, institutions, officials and procedures are others. There is in addition the reference to 'equivalence' in the legislation: s 4 (1B)(b). The question of the outer bounds of this concept fortunately does not arise for decision in this case, but there is therein at least a formal sanction for making adaptations such as I have mentioned". 191 At p 580 Gummow J said that "the notion of 'equivalence' in my view imports a meaning of corresponding significance between the two legal systems and of a correspondence in relative positions or functions". 192 At p 585 Foster J, the third member of the Court, said that "the concept of 'equivalent act or omission' is a broad one and is expressed rather elliptically in the section" 193 Counsel for Mr Dutton submitted that it was not permissible, even taking the expression "equivalent conduct" in s 19(2)(c) into account, to translate or transfer the substantive law of South Africa or "the legal context in South Africa" to Australia, in order to determine whether the requirement of dual criminality was satisfied. 194 Counsel for the Republic of South Africa submitted that Riley and Linhart did not contain any definitive discussion of the expression "equivalent conduct" and that the extent of the translation or substitution of factors permitted under s 19(2)(c) is not limited to the factors expressly mentioned by Fox J in Linhart. 195 Counsel for the Republic of South Africa referred to the American case of Heilbronn v Kendall (775F.Supp. 1020 (W.D. Mich 1991), a decision of the United States District Court for the Western District of Michigan (Robert Holmes Bell J). Heilbronn v Kendall is discussed in Aughterson Extradition Australian Law and Procedure (1995) at p 80 as being "a recent example of the principle of 'equivalence'". 196 In Heilbronn v Kendall the petitioner Heilbronn was a medical practitioner who had served as the director of a department of surgery in a hospital in Israel. As the director of the department he had authority to designate which doctors would perform operations and the order of the operations. The hospital was part of what the Court described as "a complex socialised health care network". 197 Heilbronn was charged in Israel with having committed various offences in Israel including offences of bribery. The charges of bribery were based on allegations that relatives of patients had made payments to him, in order to secure him as the surgeon who would perform surgery on the patients at the hospital. The patients, as members of a health fund which was part of the health care network, were entitled to free treatment at the hospital. 198 After being charged Heilbronn left Israel and extradition proceedings were brought against him in the United States. A Federal magistrate in the United States granted "certification of extraditability", which Heilbronn challenged by petitioning for habeas corpus in the United States District Court. 199 In the United States District Court the Court identified the first question it had to determine as being whether the crimes charged were extraditable crimes and the Court found that they were as being "bribery", a crime enumerated as an extraditable offence in an extradition treaty between the United States and Israel. 200 The next question which the Court said it had to determine was whether extraditing Heilbronn would violate the principle of "double criminality". In its judgment the Court noted an argument made by Heilbronn as follows:- "It is undisputed that bribery is illegal under the laws of the United States. Petitioner's argument, however, is that his case is peculiar because the particular conduct he is charged with would not be a crime in the United States where brain surgeons may charge 'whatever fee the market will bear'. …The conduct is criminal in Israel only because of a 'unique economic structure that turns doctors into public servants and condemns payments to them for services they are not required by law to perform'". 201 The Court rejected this argument by Heilbronn. At p 1025 the Court said:- "A similar argument based on the peculiarities of a country's laws or economic system was rejected in Brauch - ( Brauch v Raiche , 618 F.2d 843). The appellant in Brauch argued that although the English currency charges were denominated violations of that country's Theft Act, they rested solely on alleged violations of the Exchange Control Act, which was enacted to further monetary policies peculiar to Great Britain and had no analogue in American law. 618 F2d at 853. Appellant argued that but for Great Britain's unique system of exchange controls, he would have been 'a shrewd business man'. The court rejected his argument. The Court focused instead on the significant common element of deception in the two theft statutes being compared: 'We do not think that the double criminality requirement extends so far as to require that the reason particular conduct constitutes deception be some substantive law common to both jurisdictions'". 202 The Court held that the extraditing of Heilbronn would not violate the principle of "double criminality". At p 1026 the Court said:- "Double criminality does not require that the reason petitioners' conduct constitutes bribery (i.e violation of the laws associated with a system of socialised medicine) be common to both jurisdictions". 203 It is clear that if Heilbronn v Kendall is applied in the present case it is a strong authority in favour of the Republic of South Africa. However, attempts were made by counsel for Mr Dutton to distinguish Heilbronn v Kendall. It was submitted that:- 204 (i) the United States, unlike Australia, is a "list" country, in that offences which are extraditable offences are listed or enumerated in extradition treaties between the United States and other countries such as Israel and the fact that the United States is a "list" county led, it was submitted, to the United States District Court focusing on "legislative equivalence" between United States Statutes and Israeli Statutes. 205 (ii) The United States District Court relied on a finding it made that "the common element of bribery, the corrupt giving or receiving of payments, to influence a duty owed" was common under both United States and Israeli Statutes. 206 (iii) The judgment of the United States District Court reflected what was said to be the more liberal approach of American Courts to the granting of extradition, whereas, it was said, Australian Courts give greater weight to the value of individual liberty. 207 It is true that the judgment of the United States District Court shows that the United States was, at least then, a "list" country, whereas Australia is not a list country. That the United States was a list country played an important part in the determination of the first question addressed by the Court, namely whether the offences charged were extraditable offences. That the United States was a list country played some part in the determination by the Court of the second question addressed by the Court, that is whether extraditing Heilbronn would violate the principle of double or dual criminality, in that the Court entered upon a comparison of United States and Israeli criminal statutes and inquired whether there was a common "element" or "duty" in the statutes of the two countries. Nevertheless, I do not consider that the differences between United States and Australian extradition law to which my attention was directed are sufficient to prevent Heilbronn v Kendall being a persuasive authority in the present proceedings about such matters as the level of generality or specificity at which Mr Dutton's conduct in South Africa should be characterised in applying s 19(2)(c) and whether the particular circumstances by reason of which Mr Dutton's conduct constituted offences of fraud in South Africa should also have had to exist in Australia at the time the extradition request was received. 208 Brauch v Raiche, the case referred to by the United States District Court in Heilbronn v Kendall in one of the passages from the judgment of the Court which I have quoted, is a decision of the United States Court of Appeals First Circuit and is also a persuasive authority in favour of the Republic of South Africa. Some of the facts in Brauch v Raiche bear a resemblance to facts in the present case. As indicated by the Court in Heilbronn v Kendall, it was argued on behalf of Brauch in Brauch v Raiche that some of the offences with which Brauch had been charged in the United Kingdom, although charged as offences under the United Kingdom Theft Act, involved contraventions of the United Kingdom Exchange Control Act, which had no equivalent in American law and that therefore the requirement of double or dual criminality should be held not to be satisfied; but this argument was rejected by the Court of Appeals. 209 Another case referred to by Aughterson at p 80 of Extradition Australian Law and Procedure is re Re Collins (No.3) (1905) 10 CCC 80, a decision of Duff J of the Supreme Court of British Columbia. 210 Collins applied for habeas corpus after he had been committed for extradition to the United States (California) on a charge of perjury. The alleged perjury was the making by Collins of a false statement in an affidavit by him verifying his pleas in a court proceeding in California. The laws of California required that pleas in actions of the kind in question be verified by an affidavit by the defendant. 211 The extradition treaty between Canada and the United States included as a condition of extradition:- "Provided that this shall only be done upon such evidence of criminality, as according to the laws of the place where the fugitive, or person, so charged was found, would justify his apprehension and commitment for trial, if the crime, or offence, had been there committed". 212 In his judgment Duff J proceeded on the assumption that there was no requirement under the law of British Columbia that pleas in actions of the kind in question had to be verified. Nevertheless, Duff J held that the condition in the treaty was satisfied. His Honour said at p 103:- "Treating the matter in that way, then, what have we here? If my view of the law of California is correct, we have this. We have the fact that there was a proceeding pending in a Court of competent jurisdiction, the practice of which Court authorized a certain affidavit to be made in that proceeding. The affidavit was made, and it contains a wilfully false statement of fact. In other words, in addition to all the other elements of perjury, you have an oath taken in a judicial proceeding before a Court of competent jurisdiction after a manner in which it was authorized by law. These facts make up the substance and essence of the criminality charged against the accused. If you transfer these facts to this country, you get the offence of perjury within the law of Canada". 213 In my opinion the judgment of Duff J in Re Collins (no.3) also supports the submissions by counsel for the Republic of South Africa. 214 I conclude that, if the conduct constituting the offences charged in the first twelve counts in the indictment which is set out in the indictment and in Mr de Villiers' affidavit, had taken place in New South Wales at the time the extradition request was received, the conduct would have constituted offences in New South Wales being offences under s 29B and s 29D of the Commonwealth Crimes Act and s 176A, s 178BA and s 178BB of the New South Wales Crimes Act. 215 Counsel for the Republic of South Africa submitted that the conduct would also have constituted offences in New South Wales under regulations of the Banking (Foreign Exchange) Regulations ("the Regulations"). 216 In the proceedings before the first defendant counsel for the Republic of South Africa submitted that Mr Dutton's conduct, if it had taken place in New South Wales, would have constituted equivalent offences, as being contraventions of regs 5(1) and 5(2) of the Regulations and, consequently, offences under reg 42 of the Regulations. On the third day of the hearing before me the legal representatives of the Republic of South Africa served written submissions in which the Republic of South Africa relied, for the first time, on reg 5(5) of the Regulations. In the proceedings before me counsel for the Republic of South Africa also sought to rely on reg 40 of the Regulations. 217 At the time of the proceedings before the first defendant it was known that the Reserve Bank of Australia had exercised powers which were conferred by the Regulations, by the publication of notices in the Commonwealth of Australia Gazette but the parties had not succeeded in locating the relevant notices. Subsequently, certain notices were located and in the proceedings before me counsel for Mr Dutton sought to rely on one of these notices. 218 It is convenient to set out some of the terms of some of the Regulations and some of the notices in the Gazette. "5. (1) … except with the authority of the Bank: (a) a person shall not, either on his own behalf or on behalf of another person, buy, borrow, sell, lend or exchange in Australia, or otherwise deal in Australia with, foreign currency: . . . 5. (2) … except with the authority of the Bank, a person shall not be a party to a transaction that has the effect of or involves a purchase, borrowing, sale, loan or exchange of, or that otherwise relates to, foreign currency, being a transaction that takes place in whole or in part in Australia or to which a resident is a party. 5. (5) Where any foreign currency is made available to any person in accordance with these Regulations for use for any purpose, or subject to any conditions, that person shall not use that foreign currency otherwise than for that purpose, or shall not fail to comply with those conditions, as the case may be". Reg 38. (1) Subject to any directions of the Treasurer, the Bank may, either wholly or to the extent specified, exempt from the application of the whole or any of the provisions of these Regulations: (a) any person, all persons, or every person included in any class of persons; (b) any act or transaction, all acts and transactions, or every act or transaction included in any class of acts or transactions; . . . Reg 38A. (1) The Bank may issue a general authority authorizing a person, or persons included in a class of persons, specified in the authority or all persons to do an act or thing, or acts or things, specified in the authority, the doing of which, except with the authority of the Bank, would otherwise be prohibited by these Regulations. (2) The provisions of these Regulations prohibiting the doing by a person of an act or thing, being an act or thing that the person is authorized to do by a general authority issued under subregulation (1), do not apply in relation to the doing of that act or thing by that person. Reg 40. A person shall not make: (a) to any Commonwealth officer; (b) to any officer of the Bank or of any agent of the Bank; (c) to any person who is authorized, by a general authority issued under regulation 38A, to engage in foreign currency transactions or to any director, officer, employee or agent of such a person; or (d) to any person to whom application is made for the issue of a money order payable outside Australia; any statement, whether oral or in writing, relating to any act, transaction, matter or thing to which any provision of these Regulations applies, which he knows to be untrue, or which is misleading, in any particular, or which is made by him without his having first made proper inquiries to ascertain the truth thereof". Reg 42 . (1) A person shall not contravene or attempt to contravene, or fail to comply with, any of the provisions of these Regulations. Penalty: (a) if the offence is prosecuted summarily - a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months; or (b) if the offence is prosecuted upon indictment - a fine not exceeding one hundred thousand dollars or imprisonment for a period not exceeding five years". 219 Part of the terms of a notice published in the Commonwealth of Australia Gazette No.S235 25 June 1984 were:- "Banking Foreign Exchange Regulations Exemption Reserve Bank of Australia in pursuance of Regulation 38 of the Banking (Foreign Exchange) Regulations hereby exempts from the application of sub-regulation 5(1) of the Regulations;- (a) any person who, either on his own behalf or on behalf of another person borrows, lends or exchanges foreign currency in Australia or who otherwise deals (except by way of buying or selling) with foreign currency in Australia. . . . This instrument shall come into operation on 25 June 1984". 220 Although this notice was referred to in submissions made to me, it was common ground between the parties that it was actually irrelevant, because by its terms the notice did not apply to any person dealing in foreign currency by way of buying or selling and the foreign currency transactions in which Mr Dutton or companies controlled by him had engaged were dealings in foreign currency by way of buying foreign currency. 221 The notice which was relied on by counsel for Mr Dutton was a notice published in the Commonwealth of Australia Gazette No. GN27 11 July 1990. Parts of this notice were as follows:- "Reserve Bank of Australia in pursuance of reg 38A of the Banking (Foreign Exchange) Regulations hereby grants a general authority to … (the Dealer) to buy and sell foreign currency. This authority is given on condition that, in respect of the transactions authorised above, the Dealer will: 1. comply with such limits on its foreign exchange positions as may be imposed by the Reserve Bank; 2. provide such returns and information as the Reserve Bank may require from time to time; and 3. comply with any directives and guidelines issued by the Reserve Bank from time to time. This instrument will come into operation on 1 July 1990". 222 In an appendix to the notice a large number of institutions were listed as being authorised dealers. 223 The Republic of South Africa's case based on the Regulations was that the conduct on the part of Mr Dutton alleged in the first twelve counts in the indictment included the making by Mr Dutton to the Reserve Bank of South Africa or some other bank authorised to sell foreign currency of a knowingly false statement about the purpose for which he required foreign currency and, except in the case of count 11, the use by Mr Dutton of the foreign currency bought by him for some other purpose than had been stated by him. 224 It was accepted by counsel for the Republic of South Africa that, if that conduct had taken place in Australia at the time the extradition request was received, then, by virtue of the general authority granted by the notice published in July 1990, the provisions of reg 5(1) prohibiting the buying or selling of foreign currency except with the authority of the Reserve Bank would not have applied and there would not have been an equivalent offence consisting of a contravention of reg 5(1). 225 However, it was submitted by counsel for the Republic of South Africa that the provisions of regs 5(2), 5(5) and 40 would have applied to Mr Dutton's conduct and would have been contravened and hence Mr Dutton would have committed offences under reg 42. 226 Counsel for Mr Dutton submitted that, if Mr Dutton's conduct had taken place in Australia, that conduct would not have constituted a contravention of any of the regulations and hence would not have constituted an offence under reg 42. 227 It was submitted by counsel for Mr Dutton that the general authority granted in July 1990 "jumped over" both reg 5(1) and reg 5(2). 228 As to reg 5(5) it was submitted by counsel for Mr Dutton that, the prohibition on the buying of foreign currency except with the authority of the Reserve Bank no longer applying and authorised dealers having been given a general authority to sell foreign currency, the purpose for which foreign currency was to be used or the purpose for which it was in fact used no longer mattered. If a prospective buyer of foreign currency did inform an authorised dealer of the purpose for which he said the foreign currency would be used, the dealer would be likely to say "we couldn't care less what you want to use it for". If foreign currency was made available by a dealer, it was not made available for use for any particular purpose. The foreign currency which was made available could be used by the buyer for any purpose. 229 As to reg 40, it was submitted by counsel for Mr Dutton that, by virtue of the general authority granted in July 1990, any statement by a person buying foreign currency about the purpose for which the foreign currency would be used, was quite immaterial. 230 In reply to these submissions, it was submitted by counsel for the Republic of South Africa that, notwithstanding the general authority in July 1990, both reg 5(5) and reg 40 continued to be operative. If foreign currency was made available for use for a particular purpose, then a person to whom it was made available was still prohibited by reg 5(5) from using the foreign currency otherwise than for that purpose and, if he did so, he would commit an offence under reg 42. If a person wishing to buy foreign currency made a knowingly false statement about the purpose for which the foreign currency would be used, then that would be a statement within reg 40 and the person making the knowingly false statement would commit an offence under reg 42. 231 As I have already noted, it was accepted by counsel for the Republic of South Africa that, by virtue of reg 38A and the general authority, reg 5(1) would not have applied to the buying of foreign currency by Mr Dutton, if it had taken place in Australia, and there would not have been any contravention of reg 5(1). Although counsel for the Republic of South Africa sought to rely on reg 5(2), I consider that, on the basis of similar reasoning, reg 5(2) would not have applied to the buying of foreign currency by Mr Dutton and there would not have been any contravention of reg 5(2). 232 As to reg 5(5), it seems to me that, by virtue of reg 38A and the general authority of July 1990, it is open to doubt whether, even if a person communicates to an authorised dealer the purpose for which he says he intends to use the foreign currency and the authorised dealer sells foreign currency to the person on the understanding that the foreign currency will be used for that purpose, it can be said that the foreign currency is made available to the person "for use for (that) purpose", within reg 5(5). I would not be prepared to find that Mr Dutton's conduct in using foreign currency for a purpose other than that stated by him to the bank making the foreign currency available to him would, if it had taken place in Australia, have constituted a contravention of reg 5(5). 233 On the other hand, I am satisfied that Mr Dutton's conduct in South Africa in making to the Reserve Bank of South Africa or some other bank authorised to sell foreign currency, a knowingly false statement about the purpose for which he required the foreign currency, would, if it had taken place in Australia, have constituted a contravention of reg 40 and therefore an offence under reg 42. Mr Dutton would have made to a person falling within one or other of pars (a), (b) or (c) of reg 40 statements which he knew to be untrue in some particular. The statements would have been statements "relating to any act, transaction, matter or thing to which any provision of these regulations applies", because, notwithstanding the general authority of July 1990, the buying of foreign currency continues to be an "act, transaction, matter or thing" to which many provisions of the Regulations still apply. The terms of par (c) of reg 40 expressly contemplate that a statement which is made to a person authorised to engage in foreign currency transactions by a general authority issued under reg 38A can fall within reg 40. 234 The general authority of July 1990 was given on conditions, including a condition that an authorised dealer will provide such returns and information as the Reserve Bank may require from time to time. It is likely that some of the information which the Reserve Bank might require an authorised dealer to provide would not be within the direct knowledge of the dealer but would have been supplied to the dealer in statements made to the dealer by persons wishing to engage in foreign currency transactions with the dealer. Such statements should not be knowingly untrue of misleading or made without proper enquiries. 235 I accordingly hold that, if the conduct constituting the offences charged in the first twelve counts in the indictment which is set out in the indictment and in Mr de Villiers' affidavit had taken place in New South Wales at the time the extradition request was received, the conduct would have constituted offences under reg 40 and reg 42 of the Banking Foreign Exchange Regulations. 236 In the submissions served by the Republic of South Africa on the third day of the hearing before me the Republic of South Africa submitted, for the first time, that, if the conduct by Mr Dutton had taken place in New South Wales, it would have constituted offences under s 1307 of the Corporations Law. 237 Section 1307(1), so far as is relevant, provides:- "An officer… of a company who… falsifies… any books affecting or relating to affairs of the company is guilty of an offence". 238 Subsection (3) of s 1307 sets out a defence to a charge of an offence under subs (1) but it was not contended before me that subs (3) was relevant. 239 It was not disputed that, if Mr Dutton's conduct had taken place in New South Wales, he would have been an "officer" of a "company", within the wide definitions of those terms in the dictionary in s 9 of the Corporations Law. In s 9 the term "books" is defined very broadly as including "(d) a document" and under s 25 of the Acts Interpretation Act a "document", when the word is used in Commonwealth legislation, includes any paper or other material on which there is writing. 240 As to the word "falsifies" in s 1307, it was held in R v Webber (1988) 38 A Crim R 210 by the New South Wales Court of Criminal Appeal that the word "falsifies" in s 158 of the New South Wales Crimes Act includes the making of a document which contains particulars which are false and is not limited to the altering of a document so that particulars in the document become false. In Dempster v National Companies and Securities Commission (1992-1993) 10 ACSR 297 it was held by the Full Court of the Supreme Court of Western Australia that the word "falsifies" in s 560 of the Companies (Western Australia) Code included the creation of a new document which was false. In Dempster a submission that the word "falsifies" meant only "rendering false that which was already there" and did not extend to the creation of a document was described (at 355) by Malcolm CJ, who delivered the leading judgment, as "hopeless". Accordingly, any conduct by Mr Dutton as an officer of any of his companies consisting of making any document relating to the affairs of the company which was false would, if it had taken place in New South Wales, have constituted an offence under s 1307 of the Corporations Law. 241 The principal submission made by counsel for Mr Dutton in relation to s 1307 was that, even accepting the wide meaning of the word "falsifies" in s 1307, no offence is committed under s 1307 unless it was the offender who falsified the document, that is it was the offender who created (or altered) the document containing the false material, and it was submitted that in the supporting documents setting out the conduct constituting the alleged offences, it was not alleged that Mr Dutton had created a false document. Allegations that he had "presented" or made some other use of documents which were false were not equivalent to allegations that he had "made" the false documents and did not amount to allegations of offences under s 1307. 242 In reply, counsel for the Republic of South Africa submitted that, even if there were not express allegations in the documents setting out the conduct constituting the offences, nevertheless, when all the allegations in those documents were taken into account, it was clearly implicit that it was Mr Dutton who had made the documents which were alleged to be false. 243 In support of this submission counsel for the Republic of South Africa referred to Zoeller in which the Full Court of the Federal Court said at p 302, with respect to a submission that nowhere in the supporting document was there an allegation of a state of mind which would be an essential element of the Australian offences relied on:- "While it is true that the statement of facts contains no direct description of the appellant's state of mind in terms of that required by the statement of the Australian offences, the facts stated make it clear that the appellant knowing entered into agreements that were backdated and that he did so to enable him to claim tax deductions. These facts in our opinion sufficiently state the guilty mind of the appellant without the necessity to do so explicitly. " 244 Even if I accepted that it is necessary that there be an express statement in the statement setting out the conduct constituting the offences, that Mr Dutton "made" a false document, that condition is satisfied in the case of the offences charged in counts 9 and 10 of the indictment. In the case of each of those offences it is alleged in the indictment that Mr Dutton "forged and/or fabricated" a contact between a South African company controlled by Mr Dutton and an overseas company controlled by Mr Dutton. In the case of the offences charged in counts 9 and 10 of the indictment I hold that, if that conduct (or part of it) had taken place in New South Wales, it would have constituted extradition offences under s 1307 of the Corporations Law. 245 In the case of the offence charged in count 8 of the indictment it is, in my opinion, clearly implicit in the allegations made in count 8 in the indictment, in the summary of substantial facts towards the end of the indictment and in the statement of acts and omissions for count 8 in Mr de Villiers' affidavit, that it was Mr Dutton who forged and fabricated the alleged contract between Board World and Ligneus and I hold that, if the conduct constituting the offence charged in count 8 had taken place in New South Wales, it would have constituted an extradition offence under s 1307. 246 Although it is not so clear, I am also of the opinion that the allegations in respect of the offences charged in counts 1, 2 and 3 of the indictment, that Mr Dutton caused a false contract to be presented to a bank, implies, in the context of the other allegations made in respect of each of those offences, that Mr Dutton created the false contract and I hold that, if the conduct constituting the offences charged in those counts had taken place in New South Wales, it would have constituted offences under s 1307. 247 I am not satisfied that I should hold that an offence under s 1307 of the Corporations Law would have been committed, if any of the conduct charged in counts 4, 5, 6, 7, 11 and 12 had taken place in New South Wales. 248 I have not so far dealt with the offences charged in counts 13 and 14 of the indictment and I will now deal with each of these in turn. 249 Earlier in this judgment I briefly summarised the allegations in count 13 of the indictment and quoted the part of the summary of substantial facts towards the end of the indictment which relates to count 13. Stated very summarily, it is alleged in the documents setting out the conduct constituting the offence, that Mr Dutton, in order to obtain finance from the Standard Bank of Southern Africa by means of a sale and lease back of plant at the premises of a company controlled by Mr Dutton, falsely and with intent to defraud represented to the Standard Bank that the costs to certain dates of the plant were certain amounts expressed in rand, that the value of the plant stated to the Standard Bank was a fair value and that the plant was new and unused and that EDH had entered into a contract with Partic for the purchase of a certain item of plant at a certain price; and by the making of these representations Mr Dutton had induced the Standard Bank to purchase the plant and lease it back. 250 The offences relied on by the Republic of South Africa as being equivalent offences in New South Wales were offences under s 176A, s 178BA and s178BB of the New South Wales Crimes Act. 251 It is noteworthy that the alleged offence charged in count 13 in the indictment does not depend on the South African foreign exchange laws or the existence of dual rates of exchange and, accordingly, the principal submission made by counsel for Mr Dutton in relation to the offences charged in the first twelve counts in the indictment is not available in relation to the offence charged in count 13. The submission which was made on behalf of Mr Dutton was that the statement setting out the conduct constituting the offence charged in count 13 was limited to Mr de Villiers' affidavit (or part 3 of it) and the summary of substantial facts towards the end of the indictment and that nowhere in these documents was there any allegation of an essential element of an offence of fraud, that Mr Dutton had a fraudulent state of mind. 252 I reject this submission on the grounds, as I have already held, that the statement setting out the conduct constituting the offences includes the counts in the indictment and in count 13 of the indictment it is alleged that Mr Dutton made the representations "with the intent to defraud". 253 I am also of the opinion that the allegation in the summary of substantial facts towards the end of the indictment about the letter of 14 December 1988 amounts to an allegation that Mr Dutton made a document which was false and, consequently, if that conduct had taken place in Australia, it would have constituted an offence under s 1307 of the Corporations Law. 254 Earlier in this judgment I briefly summarised the allegations in count 14 of the indictment and quoted part of the summary of substantial facts towards the end of the indictment which relates to count 14. The offences relied on by the Republic of South Africa as being equivalent offences in New South Wales were offences under s 176A, s 178BA and s 178BB of the New South Wales Crimes Act. 255 It was submitted by counsel for Mr Dutton that the alleged offence did depend, at least peripherally, on the South African foreign exchange laws and the existence of dual rates of exchange; that the statement setting out the conduct constituting the offence charged in count 14 was limited to Mr de Villiers' affidavit and the summary of substantial facts towards the end of the indictment and nowhere in those documents was there any allegation that Mr Dutton had a fraudulent state of mind; and that, so far as s 1307 of the Corporations Law was concerned, there was no allegation that Mr Dutton had "made" a false document. 256 I reject the first submission on the grounds that the South African foreign exchange laws are quite peripheral to the conduct constituting the offence and the second submission on the grounds that the statement setting out the conduct constituting the offence includes the count in the indictment and in count 14 of the indictment it is alleged that Mr Dutton acted "with intent to defraud". I hold that if the conduct constituting the offence charged in count 14 had taken place in Australia, it would have constituted an extradition offence under s 176A, s 178BA and s 178BB of the New South Wales Crimes Act.

EXTRADITION OBJECTIONS 257 Mr Dutton raised extradition objections under pars (a), (b) and (c) of s 7 of the Act. 258 By s 19(2)(d) of the Act a person is eligible for surrender only if:- "(d) a person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence" 259 Under s 7 of the Act there is an extradition objection in relation to an extradition offence if (inter alia):- "(a) the extradition offence is a political offence in relation to the extradition country; (b) the surrender of the person, insofar as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country" (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions". 260 With regard to each of s 7(b) and s 7(c), the factor on which Mr Dutton sought to rely was his claimed political opinions. It was contended on his behalf that his surrender was being sought for the purpose of prosecuting or punishing him on account of his political opinions (s 7(b)) and that on surrender to South Africa he might be prejudiced at his trial or punished or restricted in his personal liberty by reason of his political opinions (s 7(c)). 261 In the Cabal litigation Cabal raised extradition objections under s 7(b) and s 7(c), seeking to rely on his political opinions, and in the proceedings before me many references were made to the judgment of French J at first instance in the Cabal litigation and the judgment of the Full Court of the Federal Court on the appeal. It was common ground in the proceedings before me that I should apply the principles stated by the Full Court or by French J (unless disapproved by the Full Court). 262 Some of the principles stated by the Full Court or by French J were as follows:- 263 At par 126 of its judgment the Full Court said:- "It is clear from s 19(2)(d) that the proponent of either of these extradition objections bears the burden of establishing the conditions for its operation. However that burden goes no further than requiring that there be 'substantial grounds for believing' that these conditions exist". 264 At par 138 of its judgment the Full Court said that it had not been suggested on the appeal that French J had made any error in saying at Cabal (No.2) par 15:- "In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the conditions in s 19(2)(d)". 265 In par 220 of his judgment in Cabal (No.3) French J said:- The onus is upon the applicants and while it does not require that the extradition objection is proven on the balance of probabilities… that onus is not easily discharged. It is no light matter for the magistrate or this Court to conclude that there are substantial grounds for believing that the requesting country is acting in bad faith, especially given the necessary assumption that the offences have been committed…". 266 At par 146 of its judgment the Full Court said that the approach taken by French J to the admissibility of evidence in extradition proceedings had not been challenged on the hearing of the appeal. At par 16 of his judgment in Cabal (No.2) French J had said:- "If it be right that the accused person must demonstrate a real risk that the political objections defined in s 7(b) and (c) exist then such may be demonstrated by second order or derivative materials which might not be admissible in civil or criminal proceedings to prove, according to the ordinary rules of evidence and on the balance of probabilities, that the political objections exist. To require strict proof that the political objections exist would rob those objection provisions of much of their protective value". 267 With regard to what he called "general country information", that is information of a general kind about the extradition country which does not make any specific reference to the person sought to be extradited, French J observed at par 17 of Cabal (No.2):- "General country information of the kind upon which the applicants seek to rely in this case may have little bearing upon the ad hominem criteria to be applied in deciding whether the objections under s 7(b) and (c) are made out". 268 At par 125 of its judgment the Full Court drew a distinction between the extradition objection in s 7(b) and the extradition objection in s 7(c). At par 125 the Court said:- "Sections 7(b) and 7(c) make provision for two quite separate extradition objections. The first is where it can be shown that the motive of the requesting State is to prosecute the fugitive for a political offence. The second is where, upon return, the person may be prejudiced at his or her trial, or punished, detained or restricted on account of his or her political opinions. These extradition objections are described by one commentator as being based upon 'discrimination'. See Aughterson. Extradition - Australian Law and Procedure 1995, at 111". 269 As regards s 7(b) the Full Court said at par 242 of its judgment:- "Even accepting, as his Honour did, that it is not necessary for the purposes of s 7(b) that the first respondent's request for Mr Cabal's surrender be solely attributable to his political opinions, and that it is sufficient that these opinions form one of the reasons for that request, there must still be demonstrated a causal link between those opinions and the request for surrender". 270 Earlier at par 230 of its judgment the Full Court said:- "The learned primary judge observed that where a person whose extradition is sought raises a 'political objection', the necessity of linking that person's political opinion to a prosecutorial or punitive response would require a demonstration of the 'practical significance' of that opinion to the requesting government. The correctness of his Honour's observation was not challenged before us". 271 French J held that he could take into account the seriousness of the charges against Cabal and that the allegations that Cabal had committed such serious offences could not be challenged in the extradition proceedings, in deciding whether the extradition objection under s 7(b) had been made out. At par 179 of its judgment the Full Court said:- "… What his Honour did was to recognise that the allegations made were extremely serious, and that those allegations could not be challenged in the proceeding before him. The fact that the allegations were extremely serious was, in our view, relevant to, though not in any way determinative of, the question whether the charges laid were politically motivated. An application for extradition for a relatively minor offence would, of itself, suggest an ulterior motive. That is not to say that the fact that serious charges have been laid, without more, supports the proposition that the prosecution is justified rather than being politically motivated. It is however a factor which may properly be taken into account. We can see no error in his Honour's approach to this issue". 272 With respect to the extradition objection under s 7(c) the Full Court said at par 280 of its judgment:- "Whether the Mexican criminal justice system affords adequate protection to those charged with the commission of offences may be a matter for debate. There may be serious deficiencies in the way in which the criminal justice system of that country operates. The existence of such deficiencies does not, of itself, provide a basis for concluding that an extradition objection under s 7(c) has been made out. The critical issue as far as this Court is concerned is whether the specific conditions set out in that section have been made out. In the present case that means prejudice at trial, or prejudice, detention or restriction in his or her personal liberty 'by reason of his or her … political opinions'. It does not mean prejudice at trial, or prejudice, detention or restriction in his or her personal liberty because the system of criminal justice in that country is far from perfect". 273 At par 227 of his judgment in Cabal (No.3) French J said:- "In my opinion, which is not advanced as an exhaustive proposition, an extradition objection under s 7(b), in proceedings before the magistrate, will not usually be made out unless: 1. A well-defined political opinion, at the time of the request for surrender, is or has been held by the applicant. 2. The content and the history of expression of, or action upon, the asserted political opinion by the applicant is such as to be of demonstrable concern to the requesting government and to form a credible basis of that government's desire to prosecute or punish the applicant. 3. There is material of probative value on which the inference is open that the crucial decisions underlying the request for extradition by the requesting government have been taken because of the applicant's political opinions". 274 In the proceedings before me counsel for both parties submitted that I should apply par 227 of French J's judgment in Cabal (No.3) and I will do so. 275 A very large amount of evidence relating to the extradition objections was tendered to the first defendant and received by her. A quite considerable amount of evidence relating to the extradition objections was tendered to the first defendantbut not received by her. As I stated earlier in this judgment, I decided that I should receive and take into account such of this evidence as counsel for Mr Dutton sought to rely on in his submissions. 276 On the basis of this voluminous evidence many submissions were made by each counsel. I will not attempt in this judgment to refer to all of the evidence, all of which I have taken into account or all of the submissions that were made to me, all of which I have taken into account. I will simply summarise some of the submissions which were made and state my principal reasons for coming to the conclusions I have reached.

Counsel for Mr Dutton's Submissions 277 In his submissions concerning s 7(b) counsel for Mr Dutton dealt in turn with each of the three conditions or limbs stated by French J in par 227 of his judgment in Cabal (No.3).

First Condition 278 It was submitted that it had been established that at the time of the request Mr Dutton held, or at least had held, a well defined political opinion, namely that he opposed the system of apartheid in South Africa. 279 It is unnecessary to devote any further attention to the first condition, because counsel for the Republic of South Africa did not dispute that it had been established.

Second Condition 280 Counsel for Mr Dutton distinguished two aspects of the second condition, (1) what was the content of Mr Dutton's political opinions and whether there had been a history of his expressing or acting upon his political opinions (the first aspect of the second condition) and (2) whether that content and that history had been of demonstrable concern to the South African Government and formed a credible basis for that Government's desire to prosecute or punish Mr Dutton (the second aspect of the second condition).

First Aspect of the Second Condition 281 It was submitted that the evidence established inter alia that:- 282 (i) Mr Dutton had stood for election to a local government organisation, the Linbro Park Ratepayers' Association Committee, as the head of a team of independent candidates who were opposing the candidates of the National Party, and that in an election held on 21 February 1989 Mr Dutton and the other members of his team had been elected to the Ratepayers' Association Committee and that Mr Dutton had then become the chairman of the Ratepayers' Association Committee. 283 (ii) After his election to the Linbro Park Ratepayers' Association Committee Mr Dutton had implemented practices in Linbro Park which were non-discriminatory as between the different races. 284 (iii) In his business enterprises Mr Dutton had instituted non-discriminatory employment and work practices and training programmes. 285 (iv) A statement of objectives based on non-discrimination and equal opportunity, described as a "Corporate Mission", was displayed at the premises of Mr Dutton's companies and was included in the reports of his companies. 286 (v) Mr Dutton made public speeches about the non-discriminatory work practices in his businesses. 287 (vi) Mr Dutton supported non-racial schools and had his children attend a non-racial school. 288 (vii) Mr Dutton supported and assisted non-racial governments in other countries in southern Africa neighbouring South Africa. 289 (viii) Mr Dutton assisted black persons during a campaign conducted by General Malan, the South African Defence Minister, which was known as "Total Onslaught" 290 (ix) Mr Dutton held multi-racial gatherings at times when such gatherings were legally restricted or prohibited. 291 Counsel for the Republic of South Africa did not dispute that the first aspect of the second condition had been established.

Second Aspect of the Second Condition 292 With respect to Mr Dutton's election to, and actions as the chairman and a member of, the Linbro Park Ratepayers' Association Committee, it was submitted that, although Linbro Park was only a suburb of Johannesburg, nevertheless, according to Mr Dutton's evidence, it was a unique suburban area in that it was zoned agricultural and, unlike other suburbs of Johannesburg, there was no municipal body superior to the Ratepayers' Association Committee. In any event, the National Party placed great importance on controlling the electorate "from the grass roots up" by controlling local government bodies and associations. Linbro Park was within the electorate of General Malan. 293 It was submitted that the evidence showed that Mr Dutton had a high profile in South Africa. In 1987 and 1988 General Malan had, unsuccessfully, courted Mr Dutton, seeking to persuade him to support apartheid. Mr Dutton's high profile in South Africa was shown by a number of newspaper reports in 1990 and 1991 about his arrest or the proceedings against him, copies of which were annexed to Mr Dutton's affidavit of 18 September 2000. In South Africa Mr Dutton had made public speeches, including speeches to forums of business people. At times the authorities had closed down Mr Dutton's factories because of breaches of apartheid legislation. 294 Counsel for Mr Dutton anticipated, correctly, that it would be argued by counsel for the Republic of South Africa that, whatever might have been the position during the period when Mr Dutton was investigated, arrested and tried, there had been a great change in the political situation in South Africa by the time the second extradition request was made in January 1998. In reply to this anticipated submission, it was submitted on behalf of Mr Dutton that, even after the first fully democratic election in South Africa in 1994, the National Party and the African National Congress ruled jointly under a transition arrangement and the joint government did not end until 1999. More importantly, under the transition arrangement the existing positions of civil servants were guaranteed and it was submitted that, despite the change of government at the highest level, there had been little change in the personnel "at the operational levels" of the South African Police, the South African Reserve Bank and the South African Ministry of Justice and that senior positions in the Police Force, the Reserve Bank and the Ministry of Justice continued to be held by white Afrikaners ("the old order"), who were adept at stifling change. It was submitted that attempts by Mr Dutton to bring his matter to the attention of the new government, for example by letters written to the South African Truth and Reconciliation Commission, to the South African High Commissioner in Canberra and to the South African Minister of Justice, had failed, because Mr Dutton's letters had been dealt with by civil servants belonging to the old order and had not been put before the Ministers in the new Government. 295 Counsel for Mr Dutton submitted that the same persons who had been involved in the investigation, the prosecution and the trial in South Africa, such as van Staden, Kitching, de Villiers and Judge Streicher, all of whom were Afrikaners, were still conspiring against him and were involved in the making of the extradition request. Van Staden was still an officer in the South African Reserve Bank. If Mr Dutton was extradited and his trial was resumed, Judge Streiker would preside at the resumed trial and Mr de Villiers would resume his role as prosecutor.

Third Condition 296 Counsel for Mr Dutton submitted that, in the present case, the third condition stated by French J in his judgment in Cabal (No.3) should be modified, so as to require that there be material on which the inference would be open that crucial decisions underlying, not the extradition request, but the investigation and prosecution were taken because of Mr Dutton's political opinions. 297 It was contended that such an inference would be open on the basis, inter alia, of the close proximity in time between the election of members of the Linbro Park Ratepayers' Association Committee on 21 February 1989 and the attachment of property of companies associated with Mr Dutton by the notices of attachment dated 3 March 1989 issued by the Reserve Bank of South Africa for suspected contraventions of the Exchange Control Regulations and the close proximity in time between the election and the taking over by Mr Olsen of the role which had previously been played by Mr Dutton in the affairs of the Interboard group of companies. 298 It was submitted that by standing for election against National Party candidates and by being elected to the Linbro Park Ratepayers' Association Committee, Mr Dutton had incurred the enmity of General Malan, whose control of his electorate at its grass roots had been threatened. After he was elected, Mr Dutton received threats and warnings that his safety was in jeopardy from, among others, Mr Smit, who was the chairman of the National Party in General Malan's electorate, Mr van Heerden, who was the chairman of the National Party in Linbro Park, and, indirectly, from General Malan himself. Mr Dutton claimed that his home had been broken into and that shots had been fired at his home. 299 After Mr Dutton was arrested he had to resign from the Ratepayers' Association Committee and, a short time afterwards the National Party regained control of the Committee. 300 It was submitted that the evidence established that the success of Mr Dutton's businesses had been a threat to their competitors, which were part of a cartel of companies which had a close, mutually supportive, relationship with the National Party Government. Within a year after the notices of attachment these competitors were again trading profitably. 301 It was submitted that the evidence showed that the non-racially discriminatory work practices instituted and maintained by Mr Dutton in his businesses were perceived as a serious threat to the apartheid system. 302 A submission was based on evidence by Mr Dutton's brother, Mr Barry Dutton, that "to the best of my recollection" media publicity at the time of Mr Dutton's arrest had associated him with his political activities in Linbro Park. 303 An individual on whom counsel for Mr Dutton's submissions focused was Klaus von Lieres und Wilkau, who at the time of the investigation was the Attorney-General for the area. Von Lieres und Wilkau was an Afrikaner and a member of the Broederbond, a secret and powerful Afrikaner organisation. It was he who had requested Mr de Villiers to prosecute Mr Dutton's matter. On letters written by Mr Dutton to Mr Kitching in 1990 and 1991 Mr Kitching had written notes to the effect that the letters would have to be discussed with "the Attorney-General" (von Lieres und Wilkau). Von Lieres und Wilkau had had a personal association with General Malan. In about 1994 he had acted as defence counsel for Malan, when Malan stood trial for murder. In a book by Dyzenhaus "Judging the Judges, Truth Reconciliation and the Apartheid Legal Order" the author criticised von Lieres und Wilkau for simultaneously holding two positions, namely Attorney-General and a position as part of a military response during the "Total Onslaught". A submission which had been made to the Truth and Reconciliation Commission was that von Lieres und Wilkau as a prosecutor had brought charges of common law offences, rather than statutory charges, so that the prosecutions would appear less overtly political. Mr Dutton gave evidence that von Lieres und Wilkau had at times made personally offensive remarks to him. 304 It was submitted that the inference referred to in the third condition stated by French J was supported by various things, which, it was submitted, had happened in the investigation, the prosecution or at the trial itself. I will list most of these alleged things in the immediately following paragraphs. 305 Only Mr Dutton, and no other officer in the Interboard group of companies, had been investigated or prosecuted during the investigation. Mr van Staden had forced Mr Dutton, against his will, to write a potentially prejudicial admission on a document. During the investigation the South African Police, the new controllers of Interboard and Ernst & Young had agreed to co-operate fully to ensure the most expeditious prosecution of the South African Police cases against Mr Dutton. 306 When Mr Dutton was initially arrested and when he was re-arrested, no charges were specified to him. At the time of the initial arrest Mr Dutton was told by Mr Kitching that he would not be released until after 7 January 1990, when Mr Dutton was due to give evidence in proceedings brought in Guernsey to have Mr Olsen removed as a director of Interboard. After Mr Dutton was released following a court ruling that the initial arrest was invalid, Mr Kitching falsely led the media to believe that there was a nationwide hunt for Mr Dutton, whereas, Mr Kitching having informed Mr Dutton's lawyers that he would be applying for a fresh warrant of arrest, arrangements had been made between Mr Kitching and Mr Dutton's lawyers for an orderly further arrest. Grossly offensive words including that he was a "kaffir" were spoken by Mr Kitching to Mr Dutton at the time of the second arrest. 307 After being arrested Mr Dutton was held in police cells in inhumane and degrading conditions and was not sent to a remand prison. While he was in custody Mr Dutton's brother was not allowed to see him. At the hearing of Mr Dutton's application for bail Mr Kitching refused to hand Mr Dutton's passport, which had been confiscated, to Mr Dutton's lawyer Mr Husain, who was of Indian ancestry, but handed it to a white person. Mr Dutton was denied access to tape recordings of the bail hearing for some months and when some tapes of the hearing were made available to him, other tapes of the hearing were missing. A condition of the bail granted to Mr Dutton was that he not contact any person connected with the Interboard Group and this bail condition effectively denied Mr Dutton access to potential witnesses for himself. At the bail hearing Mr van Staden gave instructions about the conduct of the hearing to Mr Kitching. 308 The South African Reserve Bank engaged Ernst & Young as the investigating accountants and paid them. 309 Further matters referred to by counsel for Mr Dutton were that charges of fraud were brought rather than charges of contraventions of the Exchange Control Regulations, because such charges would seem less overtly political and, if Mr Dutton absconded, he would be liable to be extradited. Mr de Villiers underestimated the length of the trial, when he must have known that the trial would last much longer than his estimate. For much of the trial Mr Dutton was unrepresented; he could not pay the costs of legal representation, because he was prevented from gaining access to assets, including title deeds. Even before the trial commenced, Mr Husain's firm had ceased to represent Mr Dutton, because he was unable to pay its fees. 310 During the trial Mr de Villiers as the prosecutor asserted "docket privilege", that is he refused to make available to the defence copies of statements by prosecution witnesses and maintained this refusal, even after the prosecution case was closed. Judge Streicher made a ruling that the prosecution was not obliged to provide copies of witness statements to the defence. Some persons who had been nominated as witnesses by the prosecution were not called as witnesses, giving rise to an inference that they had been nominated as witnesses in order to prevent Mr Dutton from having access to them. At the trial Mr Kitching, with the knowledge of Mr de Villiers, had fabricated documents. 311 Submissions were made about the taking of the evidence of three witnesses, including Olsen, on a commission held in the United Kingdom. The order for the taking of the evidence of these witnesses on commission had been made without jurisdiction and was set aside. The order for the taking of Olsen's evidence on commission had been made on the basis that he was not in South Africa and would not come to South Africa to give evidence, yet in his evidence given on the commission Olsen said that he regarded himself as domiciled in South Africa. A lawyer named Siff, who had been appointed as being an independent lawyer who would assist both parties at the commission, was not truly independent and had a link to Olsen. During the hearing on commission Mr de Villiers said that he had no objection to a particular file being available to Mr Dutton but then gave instructions that the file was not to be made available. At the commission Mr de Villiers successfully claimed docket privilege in respect of previous statements of the witnesses. Later, Mr Dutton had obtained copies of the statement of the two witnesses other than Olsen and had discovered that the statements contained untrue assertions but it was then too late to use the statements in any cross-examination of the witnesses. 312 After the prosecution closed its case, the trial judge refused to allow Mr Dutton to make a no case submission, although, Mr Dutton asserted, he had proved in the cross-examination of prosecution witnesses that there was a conspiracy against him and that the prosecution had failed to establish a prima facie case against him. 313 Counsel for Mr Dutton referred to a submission made on behalf of the Republic of South Africa before the first defendant, which he anticipated, correctly, would be repeated before me, that, so far from Mr Dutton establishing that the crucial decisions underlying the investigation and prosecution had been taken because of Mr Dutton's political opinions, the Republic of South Africa had established that the persons directly responsible for the investigation and prosecution had no knowledge of Mr Dutton's political opinions, if any. 314 It was submitted by counsel for Mr Dutton that I should reject the evidence of each of van Staden, de Villiers, Venter and Kitching that he knew nothing about Mr Dutton's political opinions, if any, and that he had not been influenced in the performance of his functions by any knowledge of Mr Dutton's political opinions. It was said that van Staden had been a member of the Broederbond, that he had been for many years an officer of the South African Reserve Bank which had been a tool of the apartheid regime and that he had been less than frank in some of the answers he had given before the first defendant. It was put that Mr de Villiers, although never a member of the Broederbond, was an Afrikaner and had been for many years a senior career public servant under the apartheid regime, subject to superiors who were members of the Broederbond, and it could be inferred that he would have acted in such a way as to guarantee his continued employment. 315 As regards Mr Venter, it was submitted that he also had been less than frank in some of his evidence and he had failed to discover a connection between Olsen and a competitor of the Interboard companies. It was submitted that Mr Kitching's credibility was weakened by the things allegedly done by him in the investigation and prosecution, which I have already referred to. 316 Mr de Villiers gave evidence before the first defendant that Mr Dutton had not raised his claimed political beliefs at the trial in South Africa. Counsel for Mr Dutton submitted that this was to be explained by Mr Dutton realising that it would be counter productive to raise such beliefs in a trial before an Afrikaner judge. 317 In addition to submitting that I should reject evidence given by the witnesses who had been called by the Republic of South Africa, it was submitted that I should draw Jones v Dunkel (Jones v Dunkel (1958-1959) 101 CLR 298) inferences against the Republic of South Africa for not having called Malan, von Lieres und Wilkau and Olsen.

Extradition objection under s 7(b) - Decision 318 As I have already indicated, counsel for the Republic of South Africa did not dispute that the first condition and the first aspect of the second condition stated by French J in par 227 of his judgment in Cabal (No.3) had been established. However, counsel disputed that either the second aspect of the second condition or the third condition had been established and accordingly submitted that I should hold that the extradition objection under s 7(b) had not been made out. 319 The second aspect of the second condition stated by French J and the third condition stated by French J are closely related. As regards the second aspect of the second condition, the requirement that there be a link between a person's political opinions and the requesting government's desire to prosecute or punish him requires a demonstration of the practical significance of those opinions to the requesting government (Cabal (Full Court) at par 230). As regards the third condition, it is necessary to demonstrate a causal link between a person's political opinions and the extradition request (Cabal (Full Court) at par 242). 320 I have come to the conclusion that, for a number of the reasons advanced by counsel for the Republic of South Africa, Mr Dutton failed to establish either the second aspect of the second condition or the third condition stated by French J in Cabal (No.3) and that on those grounds I should hold that Mr Dutton failed to establish an extradition objection under s 7(b). I will now state some of those reasons, first giving some more general reasons and then some more particular reasons. 321 With regard to the standard of proof of an extradition objection, it is necessary to keep constantly in mind the terms of the Act and the relevant parts of the judgments of French J and the Full Court in Cabal. It is only necessary for a person to prove that there are "substantial grounds for believing" that there is an extradition objection and the standard of proof is less than the ordinary civil standard of proof on the balance of probabilities. On the other hand, as French J observed in Cabal (No.3) at par 220, it is no light matter for a magistrate or a court to conclude that there are substantial grounds for believing that a requesting country is acting in bad faith. 322 In the present case, as in Cabal, the alleged offences are extremely serious. The total amount of money alleged to have been involved in the offences was about 90,000,000 South African rand. The exchange rate between South African rand and the Australian dollar has varied from time to time but at whatever time that sum is converted into Australian dollars, it would amount to many millions of Australian dollars. 323 The seriousness of the offences for which extradition is sought is at least a factor in determining whether the prosecution was justified rather than politically motivated (Cabal (Full Court) at par 179). The Full Court would not appear to have seen any error in French J's statement in Cabal (No.3) at par 219 that the seriousness of the offences, the commission of which cannot be called into question in extradition proceedings, establishes powerful support for the inference that their prosecution is justified on the merits and is brought for a legitimate purpose. 324 Allied to the seriousness of the offences are the factors of the number and complexity of the charges and the enormous mass of oral and documentary evidence adduced by the prosecution in the trial in South Africa. The indictment presented against Mr Dutton contained fourteen counts of fraud and the pleading of those counts of fraud extends over more than fifty pages. The presentation of the prosecution case at the trial lasted almost two years, although, admittedly, it would seem that part of that time was taken up by lengthy cross-examination by Mr Dutton. A very large number of witnesses gave evidence in the prosecution case and a very large number of documents were tendered in the prosecution case. In my opinion, there is force in a remark made by Mr de Villiers that, given the number of entities and the number of documents, it would have been impossible for the charges to have been fabricated. 325 Another factor which, in my opinion, makes it more difficult for Mr Dutton to establish the disputed parts of the conditions stated by French J is the extravagance of some of his own allegations and, in particular, the allegation that he had been the victim of a conspiracy to which there were many parties, which commenced as long ago as 1987; which had as it objects the destruction of Mr Dutton as a political opponent of apartheid, the destruction of Mr Dutton's companies as commercial competitors of companies in the cartel and the taking over of assets of Mr Dutton's companies; a conspiracy which was still continuing when Mr Dutton gave evidence before the first defendant in November 2000, notwithstanding that its objects had long since been achieved; which was responsible for Mr Dutton being arrested, being charged with trumped up charges and being tried; and which was responsible for the making of the two extradition requests. Even given the proper level of the standard of proof of an extradition objection, I should not lightly find that there are grounds for believing that there was such a conspiracy. 326 In evidence given before the first defendant Mr Dutton agreed that, if there had been a conspiracy, the alleged conspirators would have achieved their objectives as long ago as about 1990. This being so, it is difficult to credit that the conspirators, even if there was at one time a conspiracy, would still be pursuing Mr Dutton so many years afterwards. I do not find plausible Mr Dutton's suggestion made in giving evidence that the reason for the alleged conspirators wanting Mr Dutton to be extradited was a wish on their part to attempt to justify their past actions against him. 327 It was submitted by counsel for the Republic of South Africa that almost all of the evidence on which Mr Dutton relied consisted of assertions by Mr Dutton himself which were uncorroborated or of "general country evidence". The first part of this submission has less force, if the affidavits by other persons which are annexed to affidavits by Mr Dutton but which were rejected by the first defendant are taken into account. As stated earlier in this judgment, I have decided that I should take all of these affidavits into account. Nevertheless, this part of counsel for the Republic of South Africa's submission continues to have some force. Much of the evidence sought to be relied on by Mr Dutton does indeed consist of assertions made by Mr Dutton himself which lack corroboration. The weight of the evidence of the other persons whose affidavits were annexed to affidavits by Mr Dutton is reduced because the Republic of South Africa never had any opportunity to cross-examine these persons. 328 I accept the submission made by counsel for the Republic of South Africa that much of the evidence sought to be relied on by Mr Dutton was "general country evidence" about South Africa not referring specifically to Mr Dutton. Even if some of the general country evidence tended to show that Mr Dutton had been treated unfairly in South Africa, it did not tend to show that he had been discriminated against. It tended to show that he had simply been treated in the same way as other criminal accused in South Africa were. 329 Deficiencies in the evidence adduced by Mr Dutton at the hearing before the first defendant are the more significant, because of prior claims made by him, for example in a letter of 27 August 1996 to the chairman of the Truth and Reconciliation Commission and in a submission made to the first defendant on 11 May 2000 that he would be able to produce full proof of the alleged conspiracy against him. 330 Many of the assertions made by Mr Dutton in his evidence were denied or contradicted by witnesses for the Republic of South Africa, such as Mr de Villiers and Mr Kitching. It was submitted by counsel for Mr Dutton that, where there was a conflict between evidence given by Mr Dutton and evidence given by a witness for the Republic of South Africa, I should prefer the evidence of Mr Dutton. It was also submitted by counsel for Mr Dutton that I should disbelieve parts of the evidence of witnesses for the Republic of South Africa, such as Mr de Villiers and Mr Kitching, even where there was no directly conflicting evidence from Mr Dutton. As I have already stated earlier in this judgment, in circumstances where I did not see or hear Mr Dutton or the witnesses for the Republic of South Africa give their evidence but the first defendant did, I should give some weight to the findings on the credibility of witnesses which I consider the first defendant made. 331 I pass to more specific reasons for concluding that an extradition objection under s 7(b) was not made out. 332 While I accept that Mr Dutton had a "fairly high profile", that is was fairly well known, as a businessman in South Africa, I do not accept that he was well known as a political figure in South Africa. In my opinion, a number of pieces of evidence support this conclusion. 333 Mr Dutton accepted in cross-examination that his position on the Linbro Park Ratepayers' Association Committee" was not a high profile position". Fewer than five thousand people lived in Linbro Park and the Ratepayers' Association Committee had no law making powers. It is difficult to accept that Mr Dutton's election to the Linbro Park Ratepayers' Association Committee and his actions after being elected to the Committee were sufficient to incur the lasting enmity of General Malan. Implicit in the submission made on behalf of Mr Dutton that the National Party wanted to exercise control "from the grass roots up" is a recognition of the comparatively humble status of the Linbro Park Ratepayers' Association. 334 Mr Husain, a witness for Mr Dutton, who had been active in anti-apartheid politics, agreed in cross-examination that, before he had first received instructions to act for Mr Dutton, which was shortly after Christmas 1989, he had had no knowledge of "Mr Dutton's political background or activities". 335 The contemporaneous newspaper reports in 1990 and 1991 sought to be relied on by Mr Dutton as showing that he was known in South Africa as a political figure tend to show the contrary. It is unsurprising that the arrest and prosecution of the chairman of a number of companies on multiple charges involving large sums of money received some publicity in the South African press. However, in the newspaper reports which were tendered Mr Dutton is referred to solely in his capacity as a businessman. The only part of any report which is of a political nature is part of a report in the South African Sunday Times of 7 January 1990, which stated that Mr Dutton had "told watchers of his company that it was controlled by Dutch interests which he could not disclose for political reasons". There was no suggestion in any of the newspaper reports that Mr Dutton held anti-apartheid political opinions or that there could be a political reason for his arrest and prosecution. 336 I accept that Mr Dutton's companies had a corporate mission statement and that Mr Dutton instituted and maintained non-discriminatory work practices in his businesses. However, I do not accept that by 1989 such a mission statement and such non-discriminatory practices were uncommon in South Africa. Mr Venter gave evidence, which I accept, that by 1989 most public companies, all chartered accountants including his own firm Ernst & Young and all lawyers firms had similar mission statements. 337 It was submitted by counsel for the Republic of South Africa that the modification of the third condition stated by French J which was proposed by counsel for Mr Dutton was not a modification but was an attempt to introduce a quite different condition and should be rejected. It was submitted that counsel for Mr Dutton had proposed the modification, because he realised that it could not be established, in accordance with the condition as stated by French J, that the inference was open that the crucial decisions underlying the request for extradition had been taken because of Mr Dutton's political opinions. I consider that there is no warrant for not applying the third condition according to the terms stated by French J, which refer to the decisions underlying the request for extradition and not the decisions underlying the arrest and prosecution of the person sought to be extradited. Similarly, the second aspect of the second condition stated by French J is directed to whether the matters referred to in the first aspect of the second condition form a credible basis of the desire of the extradition country's government to prosecute or punish the person whose extradition is being sought. 338 Counsel for the Republic of South Africa submitted that by the time the extradition request was made in January 1998 the political views which Mr Dutton claimed to hold, of being opposed to apartheid, had become the political views of the requesting government. Mr Dutton conceded when giving evidence that, at least since 1999 when the transition period ended, his political opinions were very much "in tandem" with the policies of the South African Government. I am satisfied that by the time of the extradition request in January 1998 there had already been a great change in the political views of the South African Government, such that by then the South African Government was opposed to apartheid. Mr de Villiers gave evidence, which I accept, that as early as 1991-1992 "most of the old draconian laws had already been repealed" and the National Party had "its back against the wall". Mr Strydom said in evidence that since the election of the transitional government in 1994 there had been "an absolutely unbelievable political transformation in South Africa". 339 As I have already noted, it was submitted on behalf of Mr Dutton that, despite the change of government and the change in the political views held by the government, there had been little change in the personnel at the operational levels of the South African Police, the South African Reserve Bank and the Ministry of Justice and senior positions in the police force, the Reserve Bank and the Ministry of Justice were still held by white Afrikaners ("the old order") who were adept at stifling change. 340 Counsel for the Republic of South Africa submitted, and I accept, that, insofar as this submission was based on evidence given by Mr Dutton himself, Mr Dutton was ill qualified to give such evidence, having left South Africa in 1994 and not having since returned. Insofar as the submission was based on evidence by Mr Strydom, Mr Strydom's evidence was very general and he referred to a "small group of relics of the past" in the civil service. 341 Counsel for Mr Dutton sought to rely on the transcript of a speech made by the Minster of Justice on 5 May 1998, a time fairly proximate to the making of the extradition request. Counsel for Mr Dutton pointed to parts of the speech, including a part where the minister said:- "Only a fool believes that with political change in 1994 there simultaneously came social, economic or attitudinal change…" 342 However, in his speech the minister also said that he was able to report progress since he became a minister in 1994 in all areas of his work, including the transformation of the Department of Justice and the judicial system. 343 It was submitted by counsel for the Republic of South Africa, and I accept, that it would appear from the extradition documents that the crucial decisions underlying the request for extradition were made by Mr de Vries and Mr de Vries had been appointed to his position as Attorney-General of the local division of the High Court in South Africa on 1 April 1996 by President Mandela. 344 As I have earlier recorded, it was submitted on behalf of Mr Dutton that attempts made by him to bring his matter to the attention of the new government had failed, because letters were dealt with by civil servants, who did not refer the letters to their political superiors. I note, however, that it appears from copies of the relevant correspondence annexed to Mr Dutton's principal affidavit that a letter written by Mr Dutton to the Truth and Reconciliation Commission was in fact received by Archbishop Tutu; that the South African High Commissioner to Australia, whose name suggests that he is of Indian ancestry, had a meeting with Mr Dutton's Australian barrister; and that, as a result of steps taken by the South African High Commissioner, the same Australian barrister had a meeting with the South African Minister for Justice in South Africa. 345 I have held, in accordance with a submission made by counsel for the Republic of South Africa, that I should apply the third condition stated by French J in Cabal (No.3) according to the terms stated by his Honour and should not modify the condition in the manner proposed by counsel for Mr Dutton. However, an alternative submission was made by counsel for the Republic of South Africa that, even if the third condition was modified as proposed, so as to require that there be material of probative value on which the inference was open that the crucial decisions underlying the investigation and prosecution had been taken because of Mr Dutton's political opinions, nevertheless the third condition would still not be satisfied. 346 It was submitted by counsel for the Republic of South Africa, and it is clearly the position, that the investigation into the offences allegedly committed by Mr Dutton commenced in August-September 1987, long before the election of members of the Linbro Park Ratepayers' Association Committee on 21 February 1989, as a result of information supplied to the South African Reserve Bank by a man named Hill, who was himself being investigated by the Bank. In 1988, after evidence suggesting large scale fraud had been uncovered, the investigation, which had been commenced by the South African Reserve Bank, was taken over by the South African Police. Mr van Staden in briefing Mr Kitching told him that there was evidence that large amounts of foreign currency had been transmitted out of South Africa, ostensibly to pay for plant, and had then been remitted to South Africa as financial rand. 347 Although some reliance was sought to be placed by counsel for Mr Dutton on a letter written by Mr Dutton to Dr Lombard the Deputy Governor of the South African Reserve Bank on 21 October 1998 as showing that the investigation had not uncovered anything incriminating Mr Dutton, it is clear from the terms of this letter that at the time it was written the investigation was still continuing. 348 I note in passing that in this letter of 21 October 1988 Mr Dutton said that the Divisional Manager of Interboard BV "responsible for Interboard in South Africa Dr Versluis is an active patron of the 'Friends of South Africa' in Holland and frequently supports the movement financially. Due to their exposure to other interests outside of South Africa he is precluded from publishing his support too much and discretely campaigns for further investment in South Africa among his various business associates". Evidence was given at the hearing that the "Friends of South Africa" were an overseas group sympathetic to the pro-apartheid government. This passage in the letter of 21 October 1988 sits oddly with Mr Dutton's claimed anti-apartheid views. 349 I accept evidence by Mr Kitching that in December 1989 he obtained documents from the Channel Islands containing telexes which evidenced Mr Dutton's involvement in the fraudulent "round tripping" of funds. It was soon after receiving these documents that Mr Kitching obtained the arrest warrant pursuant to which Mr Dutton was arrested. 350 As regards the alleged significance of the proximity in time between the election on 21 February 1989 and the notices of attachment of 3 March 1989, I accept Mr van Staden's denial that there was any link between the election and the notices of attachment. Mr van Staden gave evidence, which I accept, that in January or February 1989, before the election was held, an officer of Barclays Bank produced documents to him which were similar to documents Mr van Staden had seen at the premises of Interboard. Mr van Staden took the documents to Dr Lombard and after he had seen the documents Dr Lombard signed the attachment notices. 351 Another matter relied on by counsel for Mr Dutton as giving rise to the inference required by the third condition stated by French J in Cabal (No.3) was the taking over by Mr Olsen of the role previously played by Mr Dutton in the affairs of the Interboard group of companies and what was submitted to be the proximity in time between that taking over and the election on 21 February 1989. However, there is little, if any, evidence that Mr Olsen played any part in the investigation or prosecution or that any arrangement was entered into between Mr Olsen and those who were taking part in the investigation and prosecution and any actual evidence of an association between Mr Olsen and one of Mr Dutton's competitors is slight and vague. 352 I do not consider that the various things which counsel for Mr Dutton submitted had happened in the investigation or in the criminal proceedings against Mr Dutton or at the trial itself would support the drawing of an inference that the crucial decisions underlying the investigation and the prosecution were taken because of Mr Dutton's political opinions. 353 A number of the things which allegedly happened involved alleged misconduct by Mr Kitching, almost all of which was denied by Mr Kitching in his evidence. In cases where alleged misconduct by Mr Kitching was denied by him, I do not consider that there are substantial grounds for believing that Mr Dutton's allegations are correct. In reaching this conclusion I take into account the favourable view the first defendant took of Mr Kitching's credibility, at least when giving certain parts of his evidence. As to a number of the other things which allegedly happened I accept that they happened but I do not accept that an inference of the kind urged by counsel for Mr Dutton is capable of being drawn from them. As to other things which I accept happened, although they might seem unfair to a person accustomed to Australian criminal procedures and practices, I am satisfied that what happened was in accordance with what were standard procedures and practices in South Africa at the time and no inference that Mr Dutton was being discriminated against, whether because of his political opinions or on any other ground, could be drawn from them. 354 I make the following further comments about some of the specific matters sought to be relied on by counsel for Mr Dutton as grounding an inference that the crucial decisions underlying the investigation and prosecution were taken because of Mr Dutton's political opinions. 355 It is true that only Mr Dutton, and no other officer of any of the Interboard group of companies, was investigated or prosecuted. However, Mr van Staden gave evidence, which I accept, that the investigation was initiated by information supplied by Hill about Mr Dutton personally; there is no doubt that all the companies in the Interboard group in South Africa were controlled by Mr Dutton; and there is no suggestion in the evidence that during the investigation evidence incriminating any other person was uncovered but then ignored or suppressed. 356 At an early stage in the investigation Mr Dutton, having been asked to do so by Mr van Staden, wrote the names of certain companies on a document which had been prepared by Mr van Staden. However, Mr Dutton also wrote on the document that he had been requested to do so by Mr van Staden and that "I don't see the purpose but will co-operate" and he also wrote on the document that, if what was alleged in the document had taken place, Mr Dutton had been an innocent party to it. 357 No adverse inference could be drawn from the new controllers of the Interboard group of companies agreeing to co-operate fully with the police and the investigating accountants in the prosecution of Mr Dutton. It was a proper course for the controllers of a group of companies to take, in circumstances where the former controller of the group was being prosecuted. 358 Mr Kitching gave evidence, which I accept, that Mr Dutton was told, both when he was initially arrested and when he was re-arrested, that he was being arrested on charges of fraud. Mr Dutton's letter of 21 October 1988 to Dr Lombard indicates that he then already understood the nature of the investigation which was being conducted. 359 In his evidence Mr Kitching denied having told Mr Dutton after the initial arrest that he would not be released until after the date when he was due to give evidence in the Guernsey proceedings and I do not accept that Mr Kitching told Mr Dutton this. 360 With regard to the re-arresting of Mr Dutton, Mr Kitching gave evidence that he issued a media release, after Mr Dutton could not be found at any of his known addresses and that, after publication of the media release, Mr Dutton's lawyers contacted Mr Kitching, denying any knowledge of Mr Dutton's whereabouts. 361 As I have already indicated, other allegations of misconduct or offensive conduct by Mr Kitching were denied by Mr Kitching in his evidence. 362 It is unsurprising that at the bail hearing Mr van Staden, who had conducted the initial investigation and was an expert on the subject of foreign exchange, conferred with Mr Kitching. I am satisfied that the bail conditions subject to which Mr Dutton was granted bail were standard bail conditions in South Africa at the time. 363 No inference of the kind urged by counsel for Mr Dutton would be capable of being drawn from the South African Reserve Bank engaging a firm of accountants to assist in the carrying out of such a complex investigation. I accept evidence by Mr van Staden that the appointment of Ernst & Young was made openly, that it was documented, that all payments made to Ernst & Young were against accounts received from Ernst & Young and that all charges made were in accordance with standard scales of charges. 364 In his evidence Mr de Villiers denied that there was any ulterior purpose in framing the charges as charges of fraud. Mr de Villiers said that the investigation had uncovered evidence of offences of forgery and fraud, involving many millions of rand. These offences were so serious that charges of breaches of the foreign exchange regulations were never seriously considered. I accept this evidence by Mr de Villiers. 365 As regards the availability to Mr Dutton of assets with which to pay the costs of legal representation, it was accepted by counsel for the Republic of South Africa that the assets of the Dutton Family Trust had been attached by the South African Reserve Bank. It was also accepted that three certified copies of title deeds to properties belonging to Mr Dutton or his wife had been seized. However, Mr de Villiers gave evidence that Ernst & Young had kept the certified copies for a period, as they were investigating whether the properties had been acquired with the proceeds of crime, but that after Mr Dutton's lawyers asked for the title deeds to be returned, they were returned. Mr de Villiers gave further evidence that according to a forensic audit report Mr Dutton had funds overseas which he could have utilised to pay legal costs. 366 Docket privilege, however unfair it might seem to an Australian lawyer and although it has since been abolished in South Africa, "existed generally for all criminal proceedings in South Africa", according to evidence given by Mr de Villiers, which I accept. 367 Some documents held by the prosecution were made available to Mr Dutton. Judge Streicher ruled that if the prosecution relied on misrepresentations allegedly made in documents those documents would have to be made available to Mr Dutton and, as the prosecution relied on a large number of such documents, a large number of documents were provided to Mr Dutton. 368 Mr de Villiers could have waived docket privilege for statements by prosecution witnesses but did not do so. He gave some reasons in pars 29 and 30 of his affidavit, which were as follows:- "The reluctance on the part of the prosecution to provide Dutton with copies of all documents to be tendered against him prior to his trial was because the case against him comprised many forged documents, and the prosecution was concerned that further forged documents may be produced by Dutton in his defence, relying on and using existing forged ones. The prosecution did not however provide copies of witness statements to Dutton. Again the prosecution had a discretion whether to make these available beforehand, but was reluctant to do so in part because of concerns for the intimidation or influencing of witnesses". 369 Whether or not these reasons given by Mr de Villiers should be regarded as good reasons for his deciding not to waive docket privilege, I accept that they were in fact reasons for his deciding not to waive docket privilege and I am satisfied that it was not Mr Dutton's political opinions which led Mr de Villiers to decide not to waive docket privilege. 370 The documents allegedly fabricated by Mr Kitching, with the knowledge of Mr de Villiers, were not identified or produced. 371 As regards the taking of the evidence of some witnesses on a commission held in the United Kingdom, an order made by the South African court for the taking of the evidence of those witnesses on commission was validly made and was not set aside. The order which was set aside was an order made by a master in the United Kingdom, which was inadvertently made under the wrong United Kingdom legislation. The taking of the evidence of the witnesses on commission proceeded, because the witnesses were prepared to give evidence voluntarily without the need for a court order. 372 Mr de Villiers gave evidence, which I accept, that he had been informed that the witness Mr Olsen was residing in England and was not prepared to come to South Africa to give evidence. Mr de Villiers had "no idea that Olsen was allegedly flying in and out of South Africa". 373 In his affidavit Mr de Villiers gave evidence that he had provided Mr Dutton with copies of the statements the witnesses at the commission had made in the Guernsey proceedings and he said that the witnesses in giving evidence at the commission in the United Kingdom did not give any evidence which was inconsistent with the statements they had made in the Guernsey proceedings. 374 Mr Dutton did not produce any part of the transcript of the trial in South Africa which would support his assertion that Judge Streicher refused to allow him to make a no case submission. Mr Dutton's claim that during the prosecution case he had demonstrated that there was a conspiracy against him is difficult to reconcile with his acceptance elsewhere in his evidence that he had not raised his political opinions at the trial in South Africa. 375 Mr de Villiers gave evidence, which I accept, that he did not know that Mr Siff was not independent of both parties. 376 As had been anticipated by counsel for Mr Dutton, counsel for the Republic of South Africa submitted that evidence adduced by the Republic of South Africa showed that the persons who had made the crucial decisions underlying the investigation and prosecution had no knowledge of Mr Dutton's political opinions, if any, and had not been influenced in the performance of their functions by any knowledge of Mr Dutton's political opinions. Notwithstanding the submissions made by counsel for Mr Dutton attacking the credibility of such witnesses as Mr van Staden, Mr de Villiers, Mr Venter and Mr Kitching, I consider that I should accept these parts of their evidence. 377 Mr van Staden said in his affidavit that his involvement in the investigation had resulted from information supplied to him by Hill, which Mr van Staden found to be supported when he examined the records of Interboard on 31 August 1987. He denied that his involvement in the investigation was the result of any pressure placed on him by any person or body, such as the National Party, the Broederbond or any competitor of Interboard or "any knowledge on my part of Dutton's political activities, aspirations or the like. In fact, I was completely unaware of Dutton's political affiliation". 378 Mr van Staden gave oral evidence that he had first become aware that Mr Dutton alleged that there was a political conspiracy against him to which van Staden was a party "during communications regarding the extradition proceedings". 379 In his affidavit Mr de Villiers gave evidence that he was primarily responsible for both the decision to prosecute Mr Dutton and the determination of the charges on which Mr Dutton should be tried. Mr de Villiers is an Afrikaner but he has never been a member of the Broederbond or the National Party. He joined the Democratic Party as an inaugural member in 1989. The Democratic Party was opposed to apartheid and the National Party. As a prosecutor Mr de Villiers had specialised in the prosecution of commercial offences and in the prosecution of commercial offences he had not encountered the corruption, pressures and manipulation which he accepted had sometimes occurred in other parts of the criminal justice system during the apartheid era. 380 In par 17 of his affidavit Mr de Villiers said:- "The investigation during the time I was involved in it, and the entire prosecution of Dutton was conducted by me without any regard to any political considerations. In particular I was not approached by any person or entity concerning the prosecution and I was unaware of Dutton's political background, affiliations and aspirations". 381 In his oral evidence Mr de Villiers said:- "It came as a big surprise to me when Mr Dutton alleged that he was aligned to assisting the ANC, in his papers". 382 Mr Venter is an Afrikaner. He gave evidence that he had never been a member of the Broederbond. "In the community that I move in no one belongs to it. It's not something that people of our age generally participate in". 383 In his affidavit Mr Venter said:- "In pursuing my responsibilities in the investigation, I did so without any regard to political considerations. The investigation centred on the question whether the documents which had been presented to the banks to remit the funds were false or not. During the investigation de Villiers, Kitching and I worked closely together. I did not know of Dutton's political views or his political affiliations. I did not discuss political matters at any time with de Villiers or Kitching in relation to Dutton or the investigation". 384 As regards some of the attempts to attack Mr Venter's credibility on the basis that he professed in his evidence not to be aware of certain matters which it was suggested he should and would have been aware of, I accept that Mr Venter considered that "I had a very specific brief as to what I had to do" and that in his investigation Mr Venter did not go outside his instructions. 385 Mr Kitching was in charge of the investigation from the time he took over from Mr van Staden to the time of Mr Dutton's arrest. Mr Kitching is an Afrikaner who gave evidence that he had never been a member of the Broederbond or of any political party. As a member of the South African police he had investigated offences of fraud and not offences of a political character. In his affidavit he said:- During the investigation and prosecution no one sought to influence me in the conduct of my duties, and I was not influenced in the conduct of my duties by any political considerations. I was completely unaware of any political affiliations or sympathies held by Dutton". 386 As stated by me earlier in this judgment, I do not accept that Mr Kitching acted unjustly or offensively towards Mr Dutton in the ways alleged by Mr Dutton. 387 It was submitted that I should draw Jones v Dunkel inferences against the Republic of South Africa for not having called as witnesses Malan, von Lieres und Wilkau and Olsen. I do not consider that I should draw any such inference, even if I accept that in extradition proceedings such an inference can sometimes properly be drawn. 388 As regards Malan, I do not accept that Malan is a person who the Republic of South Africa would have been expected to call as a witness. The evidence which was adduced does not tend to show that Malan played any part in the investigation or prosecution. There is nothing in the evidence which was adduced which would tend to show that Malan played any part in the making of the extradition request in January 1998. Indeed, the evidence strongly suggests that Malan would not have played any part at all in the making of the extradition request. By 1998 he did not hold any position in the government of South Africa. He was no longer even a member of parliament. In about 1994 he and a number of alleged co-offenders had been tried for murder, although he was ultimately acquitted. In his evidence before the first defendant Mr Dutton accepted that General Malan had suffered some "substantial reversals" in South Africa and that he was "disgraced", although Mr Dutton asserted that General Malan could still be a conspirator against him by virtue of having a senior position in the Broederbond. 389 Earlier in this judgment I outlined points made by counsel for Mr Dutton concerning von Lieres und Wilkau. I accept that as the local Attorney-General and as Mr de Villiers' superior von Lieres und Wilkau played a part in the prosecution of Mr Dutton. However, I also accept Mr de Villiers' evidence that, although he consulted with von Lieres und Wilkau, it was he, Mr de Villiers, who was primarily responsible for the decision to prosecute Mr Dutton and the determination of the charges. 390 There is nothing in the evidence which was adduced which would tend to show that von Lieres und Wilkau played any part in the making of the extradition request. Before the extradition request was made von Lieres und Wilkau had ceased to be an Attorney-General or to hold any official position. He ceased to hold his position of Attorney-General shortly before the murder trial of Malan in which von Lieres und Wilkau represented Malan. It is not entirely clear on the evidence whether von Lieres und Wilkau resigned his position of Attorney-General or whether he was discharged for medical reasons (he was suffering from a serious medical condition). 391 I do not consider that there is anything in the evidence to suggest that Mr Olsen played any part in the investigation or the arrest of Mr Dutton or that he played any part in the making of the extradition request. 392 I hold that Mr Dutton has not made out an extradition objection within s 7(b) of the Act.

EXTRADITION OBJECTION UNDER S 7(c) 393 Counsel for Mr Dutton submitted that it had been established that there were substantial grounds for believing that there was an extradition objection within each of the two limbs of s 7(c) of the Act, that is if Mr Dutton was surrendered to the Republic of South Africa he might be prejudiced at his resumed trial by reason of his political opinions or he might be restricted in his personal liberty by reason of his political opinions. 394 Counsel for Mr Dutton submitted, and I accept, that because of the use of the word "may" in s 7(c), it is not necessary for a person seeking to make out an extradition objection within s 7(c) to prove that there are substantial grounds for believing that he will be prejudiced at his trial or restricted in his personal liberty, if he is surrendered to the extradition country. In Rahardja v Republic of Indonesia (2000) FCA 1297 the Full Court of the Federal Court said with respect to s 7(c) of the Act:- "We accept the submissions of counsel for the appellant as to the test that must be applied considering whether there is an extradition objection in this case. As counsel say, the inquiry concerns future and hypothetical events. Necessarily, therefore, the Court is required to engage in a deal of speculation. And it is sufficient if the person raising the objection establishes a substantial or real chance of prejudice; it is not necessary to show a probability of prejudice or any particular degree of risk of prejudice'. 395 Counsel for Mr Dutton in making submissions in relation to the asserted extradition objection or objections under s 7(c) incorporated many of the submissions he had already made in relation to the asserted extradition objection under s 7(b). I have already dealt with these submissions earlier in this judgment and I will not repeat what I have said elsewhere. However, counsel made some submissions which specifically related to the asserted extradition objection or objections under s 7(c). 396 It was submitted that Mr Dutton had already suffered prejudice in the part of the trial which had already taken place and that it could be inferred from the prejudice he had already suffered that, if he was extradited and his trial was resumed, he would or might be prejudiced at the resumed trial. It was pointed out that, if Mr Dutton was extradited and his trial was resumed, the same judge Judge Streicher would be the judge and it was likely that the same prosecutor Mr de Villiers would be the prosecutor, notwithstanding that he was no longer employed in the Office of Serious Economic Offences, by virtue of a special appointment by the Minister of Justice and the National Director of Public Prosecutions "to see this matter through". In an affidavit by Mr Husain Mr Husain said that, if Mr Dutton was extradited, Mr Kitching would continue as an investigating police officer. However, Mr Kitching has in fact left the South African Police. 397 It was submitted by counsel for Mr Dutton, and not disputed by counsel for the Republic of South Africa, that, if Mr Dutton is extradited and his trial is resumed, the resumed trial will be conducted in accordance with the practices and procedures which were in force at the time of the part-heard hearing and that the new South African constitution which contains provisions more protective of criminal accused will not apply because it does not apply retrospectively to criminal trials which have already commenced. It was also common ground that the decision of the South African Constitutional Court in Shabalala v the Attorney-General of the Transvaal (1995) 2 SACR 761 (CC) in which the South African court held that a blanket docket privilege in criminal cases was unreasonable and unjustifiable did not apply retrospectively to trials which had already commenced and would not apply to Mr Dutton's trial. 398 The conduct on the part of Judge Streicher, Mr de Villiers and Mr Kitching which, it was submitted, had prejudiced Mr Dutton in the part-heard trial was some of the same alleged conduct as was relied on in relation to the alleged extradition objection under s 7(b), including the alleged conduct allegedly leading to Mr Dutton being unrepresented at the trial, Mr de Villiers declining to waive docket privilege and Judge Streicher's refusing to allow Mr Dutton to make a no case submission. For reasons which I have already given, in some instances I do not accept that the alleged conduct occurred, in other instances while accepting that the alleged conduct occurred I do not consider that it gives rise to any inference of the sort contended for by counsel for Mr Dutton and in other instances I am satisfied that what happened was in accordance with what were standard practices and procedures in South Africa at the time and that Mr Dutton was not discriminated against, whether by reason of his political opinions or on any other ground. 399 If Mr Dutton had not absconded while on bail in February 1994, his trial would have continued and would have been concluded in accordance with the practices and procedures then in force in South Africa. 400 I conclude that Mr Dutton has not made out an extradition objection that there are substantial grounds for believing that on surrender to South Africa he may be prejudiced at his resumed trial by reason of his political opinions. 401 Nor do I consider that Mr Dutton has made out an extradition objection that there are substantial grounds for believing that on surrender to the Republic of South Africa he may be restricted in his personal liberty by reason of his political opinions. The matters sought to be relied on in support of this asserted extradition objection were the alleged enmity of General Malan, the threats Mr Dutton said he had received from persons such as Mr Smit and Mr van Heerden and the alleged incidents in which his home was broken into and shots were fired in to his home. On the basis of these matters it was submitted that, if Mr Dutton was extradited, he would be at risk of being injured or killed. 402 However, all of the matters sought to be relied on, if they occurred, occurred many years ago. It seems to me highly implausible that, so many years afterwards and Mr Dutton having been in Australia for about eight years, there is any real risk that anyone would seek to kill or injure Mr Dutton, if he is returned to South Africa. 403 If anybody had been minded to kill or injure Mr Dutton, they did not take advantage of the many opportunities which must have presented themselves between the last of the matters sought to be relied on happening and Mr Dutton absconding in 1994.

EXTRADITION OBJECTION UNDER 7(a) 404 Counsel for Mr Dutton also submitted that it had been established that there were substantial grounds for believing that there was an extradition objection within s 7(a), that the offences for which Mr Dutton's extradition was being sought were political offences in relation to the Republic of South Africa. 405 Counsel for Mr Dutton referred to the definition of "offence" in s 5 of the Act as including an offence "relating to foreign exchange control" and to the definition of "political offence" in s 5. The definition of "political offence" provides in part that - "'Political offence' in relation to a country means an offence against the laws of the country that is of a political character (whether because of the circumstances in which it is committed…)." 406 The definition goes on to provide that certain kinds of offences are excluded from being a "political offence". It was not suggested that any of these exclusions was directly relevant, although it was suggested that the number of the exclusions indicates the prima facie width of the meaning of "political offence". 407 Counsel referred to the distinction between "pure" political offences and "relative" political offences and the discussion of these two different kinds of political offences in Aughterson. At p 91 Aughterson says:- "There is little difficulty in isolating 'purely' political offences; that is, conduct which violates laws designed to protect political institutions of the state. Foremost amongst these are treason, sedition and espionage, as well as passive offences such as those involving dissent from prevailing ideology. Purely political offences are to be distinguished from those offences which, though directed at the political institutions of the state, involve the commission of common crimes; such as a murder committed in the course of a political uprising. Generally, the latter are categorised as 'relative political offences'. A purely political offence affects only the public interest, while a relative political offence also involves the commission of a private wrong, the commission of a common crime. 408 It was contended by counsel for Mr Dutton that the distinction between pure political offences and relative political offences is recognised in the definition of "political offence" in s 5 of the Act, by the inclusion of the words in brackets "whether because of the circumstances in which it is committed or otherwise". It was also contended by counsel for Mr Dutton that in the case of pure political offences the offender's motive or purpose is irrelevant. 409 The argument by counsel for Mr Dutton that an extradition objection under s 7(a) had been made out, at least in respect of the offences charged in counts 1-12 and 14 of the indictment, was, essentially, as follows:- 410 1. The offences allegedly committed by Mr Dutton were to be properly characterised as contraventions of the South African Foreign Exchange laws. 411 2. The South African foreign exchange laws were laws designed to protect the political institutions of the apartheid state of South Africa. The foreign exchange laws had been introduced in 1961 to prevent or limit the impact on South Africa of international sanctions imposed on South Africa, because of the international community's feelings of revulsion for the incident known as the Sharpeville massacre. 412 3. Consequently, the offences allegedly committed by Mr Dutton were pure political offences. Because they were pure political offences, it was not relevant to inquire into Mr Dutton's purpose or motive in committing the offences. 413 It was conceded by counsel for Mr Dutton that the offence charged in count 13 of the indictment did not involve any contravention of the foreign exchange laws and an extradition objection within s 7(a) was not available in relation to that offence. However, it was submitted that the offence charged in count 14 of the indictment, even if not as obviously as the offences charged in counts 1-12, did nevertheless involve a contravention of the foreign exchange laws and was a pure political offence. 414 Counsel for the Republic of South Africa disputed that the offences allegedly committed by Mr Dutton which were charged in counts 1-12 and 14 of the indictment were properly to be characterised as contraventions of the South African foreign exchange laws and disputed that the offences were political offences, whether pure political offences or relative political offences. 415 I do not consider that the alleged offences charged in counts 1-12 of the indictment are properly to be characterised as simply being contraventions of South Africa's foreign exchange laws. The alleged offences were offences of fraud involving many millions of South African rand. I accept Mr de Villiers' evidence that, in his view, the offences were so serious that charges of breaches of the foreign exchange regulations were never seriously considered by him and I consider that his view of the seriousness of the offences and what would be the appropriate charges was well justified. 416 According to Mr van Staden's evidence, which I accept, foreign exchange laws were not first introduced in South Africa in 1961. Mr van Staden gave evidence that comprehensive foreign exchange regulations were first introduced just after the outbreak of World War II in 1939. These Regulations were amended on a number of occasions. While it is true that the Regulations were amended in 1961 after the Sharpeville massacre, the main amendments made in 1961 were confined to limiting the withdrawal from South Africa of the proceeds of South African assets which had been held by non-residents. Even at the time Mr van Staden was giving evidence before the first defendant there was still some foreign exchange controls in South Africa. Foreign exchange laws or regulations are not, of course, unique to South Africa. Many countries have or at some time or other had foreign exchange controls. Mr van Staden said that at the time of his giving evidence more than 150 member states of the United Nations had foreign exchange controls. 417 Even if the offences allegedly committed by Mr Dutton were properly to be characterised as contraventions of the South African foreign exchange laws, I do not accept that a contravention of the country's foreign exchange laws is a political offence as being a pure political offence and hence as being a political offence regardless of the offender's motive or purpose. If this were so, then if during the apartheid era a South African who supported apartheid committed a contravention of the foreign exchange laws for the purpose of gaining a financial advantage for himself, he would have been able successfully to resist being extradited from Australia on the ground that the offence for which his extradition was being sought was a pure political offence. 418 No attempt was made to submit that the alleged offences were relative political offences. If such an attempt had been made then I consider that the judgments of the members of the High Court in Minister for Immigration and Multi-Cultural Affairs v Singh (2002) HCA 7 would have been relevant. It is true that in Singh the High Court was concerned with the interpretation of the expression "serious non-political crime" in article 1F of the Convention relating to the Status of Refugees 28 July 1951. Nevertheless, the discussion by members of the Court of that expression necessarily involved a discussion of the expression "political crime" and that discussion throws light on the meaning of the expression "political offence". Applying the tests stated by Gleeson CJ at par 21, Gaudron J at par 45, Kirby J at par 142 and Callinan J at par 160, the offences which Mr Dutton is alleged to have committed would not, on the application of any of these tests, have amounted to a "political offence". 419 In par 115 of his principal affidavit Mr Dutton claimed that he knew that exchange control was a political tool introduced to protect the apartheid policy from attach from outside and within South Africa and that he encouraged the exploitation of the circumvention of the exchange controls by the foreign shareholders in his businesses, knowing that the more the exchange controls were circumvented the weaker the National Party Government would become and the sooner apartheid would be destroyed. However, even if this statement is accepted at face value, the offences which Mr Dutton is alleged to have committed involved he himself having secretly circumvented the foreign exchange laws of South Africa at very considerable personal profit to himself, not that he merely encouraged the exploitation of circumventions of the foreign exchange laws by the foreign shareholders in his businesses.

CONCLUSION 420 Pursuant to s 21(6)(g) of the Act I determine that the plaintiff Edward Isaac Dutton is eligible for surrender in relation to all fourteen offences charged in the indictment a copy of which is annexed to the affidavit of Andries Petrus de Vries sworn 29 December 1997.

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