" 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.