REASONS FOR JUDGMENT
CONTI J:
Background circumstances
2 The appellant is a German national who was born in Berlin on 25 May 1961, and was residing there apparently until the time of his departure to Australia. He arrived in Australia in approximately February 1999.
3 On 8 March 2001, the Local Court of Tiergarten in Berlin issued a warrant for his arrest. A translation of the warrant indicated that the appellant "has to be taken into investigative custody", because he was "under strong suspicion in Berlin on April 16, 1998 and during the time from November 1998 until February 20, 1999 in ten cases with the intention of obtaining an illegal pecuniary advantage for himself or for a third party, of having caused damages to the property of another in the way of causing an error by fraudulent representation of true facts".
4 Thereafter under the heading "[t]he accused is charged with the following facts", ten offences were purportedly translated in sequence as follows:
"1. On December 21, 1998 the accused borrowed DM 20.000,00 from the witness Unzelmann for a business apparently to be made by him with the purchase of antique gold coins, which he had bought in Berlin and brought to an auction of an art firm in Oldenburg. As date of repayment of the loan of the witness Unzelmann February 15, 1999 was agreed. In actual fact, there was not made such a business of antique gold coins, and from the beginning the accused rather was not ready and in the position to pay the DM 20.000,00 back to the witness Unzelmann on the fixed date and thereafter.
2. Already before the date agreed for the repayment of the DM 20.000,00 the accused came again to the witness Unzelmann, from whom he borrowed other DM 36.000,00 under the pretext of needing the money for the purchase of three paintings, among which a "Tiepolo". They agreed that the money should be repaid after the winding up of the transaction by the sale of the acquired paintings, from which the "Tiepolo" would bring approx. DM 165.000,00. In actual fact, the accused had not bought such a "Tiepolo", but he used the money for other purposes. From the beginning he was not ready or in the position to repay the DM 36.000,00 to the witness, as agreed upon.
3. In the time between November 1998 and the middle of February 1999, the witness Borrmann gave the accused a golden Rolex in the value of approx. DM 7.000,00 and they agreed that the accused should repay DM 7.500,00 to the witness Borrmann after having sold the golden Rolex. With regard to that agreement only, the witness Borrmann gave the watch to the accused. Of course, from the beginning the accused had not the intention to repay DM 7.500,00 to the witness Borrmann or to return the watch to him. The witness, however, did not receive the watch back nor the agreed DM 7.500,00. The accused then sold the watch and used the whole money for himself - as intended from the beginning.
4. At the end of January 1999, the witness Borrmann gave the accused a golden-brown king's necklace in the value of approx. DM 4.000,00, in consideration of an agreement made with the accused whereas the accused would sell the necklace and pay the DM 4.000,00 back to him. The accused in fact did not intend to return the necklace to the witness or to repay him the probable proceeds from a sale. He only wanted to get into possession of the necklace to use it for his own purposes.
5-7 Early in January 1999, the accused borrowed DM 20.000,00 from the witness Borrmann with the agreement to repay an amount of DM 27.000,00 to the witness on February 15, 1999. On January 27, 1999, still before the fixed date for the repayment of DM 27.000,00 for the loan of DM 20.000,00 he had received in January, the accused came again to the witness Borrmann in order to borrow other DM 10.000,00. They made a new agreement of repaying the amount back until Mach 15, 1999, together with an additional amount of DM 2.500,00. Besides, at the end of January 1999 the accused borrowed other DM 27.000,00 from the witness Borrmann, promising to pay all the borrowed amounts back to him by means of proceeds from two auctions. As the accused declared, it was the matter of an auction of MeiBen-china articles acquired by him, which should be made at Christie's in London, as well as of another auction of water colour paintings of Adolf Hitler, made at Sotheby's in New York. In effect, the accused had no business relations with the said auction houses, and from the beginning he did not intend and was not in the position to repay the amounts to the witness Borrmann at the date agreed upon or later.
8. On December 19, 1998, the accused concluded a loan contract of DM 46.000,00 with the witness Roll, promising to repay the loan with an additional amount of DM 4.000,00 on February 10, 1999. The same day he received a cheque for DM 36.000,00 from the witness which became cashed in, and further DM 10.000,00 in cash. From the beginning the accused did not intend and was not in the position to repay the loan being due for February 10, 1999 or later to the witness Roll. The witness did not receive any repayments.
9. On January 4, 1999, the accused borrowed DM 6.000,00 from the witness Kleindienst in cash, who in so far was able to dispose of the money of his companion of life Sporkmann. The accused promised to repay the money in cash until January 31, 1999. In effect, he did not intend and he was not in the position to repay the money till January 31, 1999 or later to the witness Kleindienst or his companion Sporkmann. So no payment was made.
10. On April 16, 1998, in a Scandinavian travel agency in 10719 Berlin, Kurfurstendamm 206, the accused booked a holiday home in Vas/Sweden and ship tickets for the crossing from Rostock to Trelleborg and back in the total amount of DM 2.055,00. The accused also made use of the offered services, but from the beginning he was neither ready nor in the position to pay the owed price of DM 2.055,00 to the Scandinavian travel agency.
On account of the indicated facts the victims suffered a total pecuniary damage of DM 178.055,00."
That total sum equates approximately to $140,000 in Australian currency. As appears from the offences numbered 5-7, the same were purportedly combined into one.
5 Below the text of the offences set out above, the following literally appears in the translation of the warrant from German into English made on 21 July 2001:
"Offenses punishable according to sections 263, 53 penal code.
The urgent suspicion of offenses results from the declarations of the witnesses Unzelmann, Borrmann, Roll, Kleindienst, Sorensen and Siegesmund as far as from the further findings of the investigations.
There exist the grounds of custody for flight according to section 112(2) no. 1 code of criminal proceedings.
In February 1999, the accused escaped to Australia where he is living at a place being unknown here. With regard to the high number of offenses (sic) as well as the amount of the caused damages he has to reckon with a considerable prison sentence."
The seal of the Local Court at Tiergarten - Berlin was impressed on the document, together with the signature of the "Judicial Clerk". The issue of the warrant was said to be authorised by Judge Buckow of the Local Court.
6 A certificate dated 13 July 2001 of the Public Prosecutor and the Attorney General in Berlin is attached to the warrant, with which is enclosed provisions of the German Penal Code. The first section is headed "Multitude of facts", the second "Period of limitation", the third "Beginning", the fourth "Interruption", the fifth "Fraud" and the sixth "Code of Criminal Procedure". The latter two provisions are reproduced below:
s 263 Fraud
(1) Whoever, through fraudulent representation or distorsion (sic) or suppression of true facts causes or holds upright an error, and thus causes damage to the property of another with the intention of obtaining a pecuniary advantage for himself or for a third party, shall be punished with imprisonment for a period up to five years or with a pecuniary fine.
(2) The attempt is a punishable offense (sic).
(3) In the case of particularly serious offenses (sic) the punishment is imprisonment for a period of between six months and ten years. As a general rule there exists a particularly serious offense (sic), when the perpetrator
1. commits such crimes or acts professionally or as a member of a gang which has come together to continuously commit the offense of forgery of documents or fraud
2. causes loss of property to major extent or acts with the intention by a continued commitment of fraud to bring a large number of persons in danger of losing their property assets,
3. brings another person in dire economic need,
4. misuses his powers or his position as an official, or
5. simulates an insured event, after he or another person has set on fire property of considerable value or has destroyed in whole or in part same through committing arson or has sunk a ship or caused it to be stranded.
…
StPO (Code of Criminal Procedure)
s 112 Conditions for investigative custody; reasons for arrest
(1) Investigative custody may be ordered against the accused when the person is strongly suspected of having committed the act in question and there exist reasons for arrest. It may not be ordered, when it is out of proportion in relation to the importance of the matter and the expected punishment or measure of improvement and security.
(2) Reasons for arrest exist, when on the grounds of specific facts
1. it is ascertained that the accused has taken to flight or is living hidden away,
2. at the appreciation of the circumstances of the single fact there is the risk that the accused will avoid the criminal proceedings (danger of flight), or…
…"
The document was signed by the Public Prosecutor, and the seal of the Attorney General in Berlin was placed thereon.
7 Earlier on 15 June 2001, a warrant for the arrest of the appellant under subs 12(1) of the Extradition Act 1988 (Cth) ("the Act") had been signed by Mr Sweeney, a Magistrate of the State of New South Wales. The appellant was arrested in Sydney on or about 9 July 2001. Since 10 July 2001, the appellant has been held on remand, without bail, at the Metropolitan Remand and Reception Centre at Silverwater. Subsequently on or about 31 August 2001, a request was made by the Federal Republic of Germany ("FRG"), being an "extradition country" under s 5 of the Act, to the Attorney-General for the Commonwealth for the extradition of the appellant to the FRG. On 6 September 2001, Senator C M Ellison, the Minister for Justice and Customs, issued a notice of receipt of the request for extradition pursuant to subs 16(1) of the Act. On 10 September 2001, a copy of that request was served on the appellant together with a copy of the subs 16(1) notice.
8 On 7 November 2001, the process was listed before Magistrate Syme in the Local Court. The appellant informed her Worship that he could not afford legal representation and he requested that the Commonwealth Director of Public Prosecutions ("Commonwealth DPP") serve on the appellant and file in Court a list of the equivalent Australian offences upon which the Director would rely to establish the requirement of dual criminality under s 19(2)(c) of the Act. Magistrate Syme thereupon directed that by 5 December 2001, the Commonwealth DPP file and serve a written statement setting out the so-called "the elements in the evidence", and the reasons relied upon, to establish dual criminality, and listed the matter for hearing for two days commencing on 28 February 2002. The circumstance that the appellant was thereby afforded a period of 87 days to prepare his case became a matter of significance in the proceedings before the primary judge.
9 In supposed compliance with Magistrate Syme's direction, the Commonwealth DPP on 4 December 2001 faxed to the Silverwater Correctional Centre for the attention of the Governor six pages of written submissions as to why the appellant was eligible for surrender in relation to the subject 10 extradition offences. At the appointed commencement date of 28 February 2002 for the hearing of the extradition application of the FRG, which in the events which happened, was presided over by a different magistrate, namely his Worship Mr Moore, being the first respondent to the present proceedings, the appellant appeared without legal representation. The appellant asserted to Magistrate Moore that he did not receive that faxed notification of hearing until the morning of 28 February 2002, when a copy thereof was handed to him in Court, and further that the apparent reason for non-receipt was because the FRG's fax had been sent to the Silverwater Correctional Centre, the Governor whereof was Mr De Silva, and not to the Silverwater Remand Centre (or more precisely the Metropolitan Remand and Reception Centre) where the appellant was imprisoned, the Governor whereof was Mr Campbell. Earlier on 19 February 2002, the appellant had forwarded a letter to Magistrate Syme, which contained a request that the matter be re-listed to deal with the failure of the FRG to comply with her directions of 7 November 2001, and to vacate the pending hearing date of 28 February 2002. Apparently no response thereto was communicated to the appellant by or on behalf of her Worship. The primary judge found "some support" for the appellant's claim as to non-service of the FRG's submissions, for reasons that need not be recounted. In all events, as his Honour further found, Magistrate Moore, denied procedural fairness to the appellant by adjourning the hearing of the proceedings merely until the following morning of 1 March 2002, despite the protestations of the appellant as to the consequential insufficiency of time for him to prepare for the hearing. Although 2 days had been appointed for the hearing by Magistrate Syme, at the conclusion of the proceedings of one day's duration which commenced on 1 March 2002, Magistrate Moore found that the requirement of dual criminality in respect of all 10 offences had been established by the FRG. In the Magistrate's view, those offences the subject of the extradition request corresponded respectively with the offence stipulated by s 178A of the Crimes Act 1900 (NSW) (the "Crimes Act") and the "offences of obtaining money by deception… and of false pretences", thereby purportedly referring to ss 178BA and 179 of the Crimes Act as well. Accordingly, Magistrate Moore issued forthwith a warrant for the commitment of the appellant to prison to await surrender to the FRG.
10 The appellant thereupon sought review by the Federal Court of the orders of the Local Court pursuant to s 21 of the Act on the following grounds:
(i) the so-called "supporting documents" in relation to an extradition offence, which are required by subs 19(3) of the Act, had not been duly authenticated by the FRG pursuant to subss 19(6) and (7) thereof;
(ii) Magistrate Moore had erred in finding that dual criminality had been established in relation to the offences for which extradition was sought; and
(iii) Magistrate Moore had denied to the appellant procedural fairness in the conduct of the proceedings under s 19 of the Act, in that he had not received the submissions of the FRG, as directed by Magistrate Syme to be served by 4 December 2002, until he arrived at the Local Court on 28 February 2002.
Findings of the primary judge
11 The primary judge first referred to authority to the effect that although magistrates presiding over the extradition process exercise executive or administrative functions, and not the judicial power of the Commonwealth (Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 522 per Gummow J), procedural fairness was not to be denied to a person the subject of s 19 of the Act (Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290 (Lockhart, Gummow and Hill JJ)). His Honour considered that procedural fairness requires that an alleged fugitive be allowed a reasonable time to prepare for the conduct of extradition proceedings, as I would observe Magistrate Syme had implicitly recognised by the directions she gave as to service of written submissions well in advance of the appointed hearing date. His Honour cited the acknowledgement of the Privy Council in Charron v Government of the United States of America [2000] 1 WLR 1793 at 1800-1801 that it was "respectable practice" to supply a fugitive with particulars of offences formulated under English law.
12 The primary judge found that there had occurred a denial of procedural fairness on the part of Magistrate Mr Moore (see [46] of his Honour's reasons for judgment below), and did so by reason of the insufficient amount of time which he allowed for the adjournment of the proceedings requested by the appellant, notwithstanding the absence of the appellant's receipt of the FRG submissions the subject of Magistrate Syme's direction until the day appointed for commencement of the hearing. His Honour considered that s 19(1)(d) of the Act inherently stipulated an aspect of procedural fairness, namely "reasonable time in which to prepare for the conduct of [extradition] proceedings", as a prerequisite to a magistrate's determination of eligibility for surrender. It is convenient at this juncture to set out the full text of subs 19(1) below:
"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."
13 The primary judge was severe in his criticism of Magistrate Moore, and in my opinion correctly so, for allowing only one day's adjournment of the extradition hearing. Indeed Magistrate Moore initially told the appellant that he would allow only one hour's adjournment "to give consideration to those documents". Even in the case of a legally represented alleged fugitive, a reasonable time in which to prepare for the defence of extradition proceedings would not normally commence to run until the extradition country has served upon the alleged fugitive or his or her legal representatives (if any) comprehensive submissions as to how it intended to justify its case. That would be the case a fortiori where an unrepresented party has not been granted bail, and must therefore prepare or organise written submissions in gaol. Plainly, it may be inferred, par (d) of subs 19(1) was included in that sub-section in order to entrench the need for the assurance of reasonable periods of time for persons liable to extradition (as wellas the extradition countries), to prepare for these usually complex cases.
14 The primary judge made the following findings specifically for the purposes of subs 19(7) of the Act:
(i) Dr Wolfgang Klapper, the First Secretary of the Embassy of the FRG, who certified the FRG extradition documents, was purportedly the holder of a "public office" of the FRG, being an office which did not need to be judicial in character;
(ii) the extradition documents purportedly sealed with an official or public seal were authentic;
(iii) Dr Klapper's certificate contained the requisite translation; and
(iv) the "supporting documents in relation to the offence(s)" (the description used in s 19(2)(a) of the Act), comprised a duly authenticated statement in writing setting out the conduct constituting the offences, in accordance with s 19(3)(c)(ii) of the Act.
15 Moving then to the statutory notion of so-called "double criminality", the primary judge cited and applied the elements thereof from the reasons for judgment of Hill and Hely JJ in De Bruyn v Republic of South Africa (1999) 96 FCR 29 at 292 as described below:
"The importance of identifying the 'conduct constituting the offence' is readily apparent. The production of a written statement setting out that conduct is an essential step in the extradition process: s 19(2)(a). The allegation that the person has engaged in that conduct cannot be controverted by evidence: s 19(5). The magistrate is required to determine whether that conduct is an offence under Australian law: s 19(2)(c). Whilst s 19(2)(c) does not state, in terms, that the s 19(2)(c) test is to be applied to the s 19(3)(c)(ii) statement, it is implicit in the section that this is so."
16 In that context, their Honours further referred to a passage from the Full Court judgment in Zoeller at 297, which, after setting out subs 10(2) of the Act, proceeded as follows:
"If s 10(2) is read into the provisions of s 19(3)(c)(ii) it becomes clear that what has to be produced to the magistrate is relevantly a statement of the acts or omissions, or both, by virtue of which the offence is alleged to have been committed. The reference to the acts etc by virtue of which the offence has been committed refers, no doubt, to the case where the extradition is sought in respect of an offence against the foreign law in respect of which the person has been convicted. What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought. That statement is, in the present case, to be found in the statement of facts following each charge rather than in the mere formulation of the charge."
17 In relation to the text of each of the paragraphs of the statement of conduct extracted in [3] above, and the "supporting documents" the subject of s 19(2)(a) of the Act referred to and partly extracted in [3-4] above, the primary judge posed the question, guided by the principles cited above from De Bruyn and Zoeller, whether the same satisfied the requirements of s 19(2)(c) thereof, a question which he considered rightly to be a matter for practical judgment, and not for "over zealousness", and to involve a consideration of the elements or ingredients of the offence, not the evidence required to prove the same (citing Zoeller further at 295). Thereafter his Honour turned his mind to the submission of Counsel for the FRG that each of the paragraphs would have constituted an offence under ss 178A, 178BA and/or 179 of the Crimes Act.
18 The primary judge concluded that the order of Magistrate Moore made on 1 March 2002 should be confirmed, pursuant to s 21(2)(a) of the Act, to the extent that the appellant was eligible for surrender to the FRG in relation to the extradition offences the subject of paragraphs 3-9 of the warrant of arrest (set out in [3] above). His Honour quashed, pursuant to s 21(2)(b) of the Act, the extradition offences the subject of the remaining paragraphs 1, 2 and 10 of the warrant of arrest (also set out in [3] above). The FRG has not challenged the quashing by the primary judge of the extradition offences the subject of those remaining paragraphs 1, 2 and 10 of the warrant of arrest. It is appropriate to now set out the full text of subs 21(2) of the Act:
"21(2)The Court may, by order:
(a) confirm the order of the magistrate; or
(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(10) - 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)."
19 In the context of those findings, his Honour cited the following passage in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 (Hill J):
"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."
The circumstances in which Hill J made that observation as to admissibility of evidence was a review by the Federal Court of a magistrate's decision, in circumstances where each of what I would describe as the conditions precedent the subject of subs 19(1), including that concerning a reasonable time to prepare for the conduct of extradition proceedings, had duly occurred. That is not the situation here involved, as found by the primary judge in relation to par (d) of subs 19(1). I should add perhaps for completeness that in Bennett v Government of the United Kingdom [2000] FCA 916, Katz J said obiter at [8] that he was not entirely free of doubt as to the correctness of the view of Hill J cited above concerning the ambit of the s 21 judicial review, at least for the reason that pars (c) and (d) of subs 19(2) are expressed to depend upon the satisfaction of the magistrate, but I would not harbour the same reservation.
20 The appellant represented himself in the Local Court, in the proceedings conducted by the primary judge, and on the present Full Court appeal. He informed the Full Court that there was no legal aid or pro bono legal assistance provided in extradition proceedings, and hence the reason why he had been obliged to conduct his case in person. Irrespective of that handicap, the appellant presented in the Full Court as an intelligent person, who was reasonably fluent in the English language. The quality and substance of his written submissions, including his citation of legal authorities, were such as to indicate that he may well have received informally the benefit of legal assistance. He stated that he had in his possession all of the cases which he cited in his written submissions.
The appellant's contentions on appeal and my preliminary observations in relation thereto
21 The essence of the appellant's case on appeal is that by reason of the very short notice he received from Magistrate Moore as to the commencement of the proceedings in the Local Court, he was denied the benefit of the condition precedent to the conduct of the proceedings, or of the jurisdictional fact, the subject of s 19(1)(d) of the Act. The consequence in law therefore was said to be that the occasion for consideration by Magistrate Moore of the supporting documents, and for his Worship becoming satisfied of the matters the subject of pars (c) and (d) of subs 19(2) of the Act, did not eventuate. It followed, so the appellant further contended, that the Magistrate's extradition order should have been quashed in its entirety.
22 The appellant supported that submission by reference to the following dicta of a Full Court (Black CJ, Gummow and Lindgren JJ) in Todhunter v United States of America (1995) 57 FCR 70 at 79:
"Section 19(1) of the Act stipulates four conditions precedent or jurisdictional facts, the satisfaction or existence of which obliges the magistrate to conduct proceedings…
It will be noted that one of the conditions precedent is the giving of a notice by the Attorney-General under s 16(1)… The function of the magistrate under s 19 is quite different from that of the Attorney-General under s 16… The task of the magistrate under s 19 is to determine eligibility for surrender."
23 To similar effect of that dicta, by virtue of the adoption of the expression "conditions of jurisdiction", is the following dicta of a subsequent Full Court (Ryan, Einfeld and Foster JJ) in Federal Republic of Germany v Parker (1998) 101 A Crim R 234 at 244:
"A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by subs (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of subs (2)(a) and (b). The character of 'the conduct of the person constituting the offence… or equivalent conduct' must be ascertained under subs (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: subs (2)(d)."
The appellant's case was that by reason of non-fulfilment of the condition of jurisdiction, or as earlier stated above in Todhunter, of the condition precedent or jurisdictional fact, the subject of s 19(1)(d), the need for consideration of the "supporting documents", pursuant to subs 19(2), did not arise.
24 As I have already indicated in [10] above, the primary judge duly recognised the obligations of a magistrate to observe procedural fairness when exercising the functions conferred upon a magistrate by the Act; at [36] of his reasons for judgment below, his Honour said as follows:
"Indeed, s 19(1)(d) seems to me to involve one aspect of procedural fairness as a prerequisite to a magistrate's determination of eligibility for surrender. This is because the magistrate is required to consider whether the person who is sought to be extradited has had reasonable time in which to prepare for the conduct of the proceedings."
The critical issue arising on this appeal is therefore whether the primary judge was correct in holding that notwithstanding the denial by Magistrate Moore of procedural fairness taking the form of allowance of a reasonable time within which to prepare for the conduct of the proceedings in the Local Court, as envisaged by s 19(1)(d) of the Act, his Honour was nevertheless authorised, pursuant to subs 21(2) of the Act, to confirm the order of Magistrate Moore as to the eligibility of the appellant for surrender to the FRG, albeit in relation to a lesser number of extradition offences than were the subject of his Worship's order.
25 In relation to the exercise by magistrates of administrative functions, the appellant added reference to the principle enunciated in Ammann v Wegener (1972) 129 CLR 415 at 436 (per Gibbs J as he then was), namely that: "[it] does not necessarily follow that because a magistrate is not exercising judicial functions he cannot be said to sit as a court". The appellant thereafter submitted that it was common enough for courts, which are not subject to constitutional restraints, to exercise administrative functions, and in so doing, are bound to act judicially, that is to say, to act justly and fairly. The appellant referred to dicta of a Full Federal Court (Wilcox, Tamberlin and Sackville JJ) in Papazoglou v Republic of The Philippines (1997) 92 A Crim R 418 at 437 as to the implicit requirement for a magistrate to act "in accordance with the dictates of procedural fairness". Those principles are not controversial.
26 The appellant submitted that the primary judge fell into error, which vitiated his conclusion, that he was authorised by the legislation to proceed with a rehearing, despite his finding of a denial of natural justice of the particular aspect stipulated by s 19(1)(d). After again referring to the passage in the reasons for judgment of the primary judge at [36], extracted above at [23], the appellant contended that s 19(1)(d) relates to an aspect of procedural fairness which is a prerequisite to the exercise of a magistrate's jurisdiction to conduct proceedings in order to determine eligibility for surrender, and not, as appears from his Honour's dictum extracted above, as a prerequisite to a magistrate's making of that determination of eligibility for surrender. Therefore, so the appellant's central submission continued, once having determined the occurrence of a denial of that species of procedural fairness adversely to the appellant, his Honour had no jurisdiction thereafter to conduct a so-called s 19 hearing in order to determine the eligibility or otherwise of the appellant for extradition, and thus to make any consequential orders. Instead, the appellant argued that the primary judge, having found that the appellant had not been afforded a reasonable time by the magistrate in which to prepare for the conduct of the extradition proceedings, should not have proceeded to determine whether the appellant was eligible for surrender in relation to any of the offences for which the extradition of the appellant was being sought by the FRG.
27 Having determined that Magistrate Moore had denied the appellant natural justice and procedural fairness in the circumstances set out in [8] above, the appellant contended that the primary judge should therefore have quashed the magistrate's order for extradition of the appellant to the FRG. The appellant cited the following passages, in support of that contention, from the reasons contained in the joint judgment of Gleeson CJ, Gaudron, McHugh and Gummow JJ in Pasini v United Mexican States (2002) 187 ALR 409 at [16-18], which are reproduced below:
"16. The function of the Federal Court under s21 is to review an order made under subs (9) or (10) of s 19 of the Act. It is not in issue that a decision of a magistrate under s19 of the Act is an administrative decision. When a court is required to review an administrative decision, it is required, at the very least, to determine whether or not that decision is erroneous in some respect that renders the rights or liabilities of the person to whom it relates other than as set out in that decision. In so doing, the court declares and enforces the law and, thus, exercises judicial power.
17. In the case of review under s 21 of the Act, the Federal Court is required, if the magistrate's decision was erroneous, to determine what order should have been made by the magistrate. So much follows from s 21(2)(b) and (6) of the Act. The latter subsection relevantly requires that the Federal Court "have regard only to the material that was before the magistrate". And s 21(2)(b) empowers that court, if it does not confirm the magistrate's order, to quash that order and direct the magistrate either to release the person or to order that he or she be committed to prison to await surrender.
18. Although there may be little difference in practical effect, the function of the Federal Court under s 21 of the Act is different in nature from that of a magistrate under s 19 of the Act. The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power."
Subsequently a Full Court in Argus Real Estate Holdings Pty Limited v Lyristakis [2002] FCAFC 256 (Spender, Miles and Dowsett JJ), in a workers compensation context, observed in the light of Pasini that "… it is clear that this Court is performing a judicial function in the exercise of judicial power… [i]t is not necessary to arrive at or express an opinion whether the arbitration in the Magistrates Court was judicial or administrative in character". I would adopt the same position by analogy, albeit imperfect, in an extradition context.
28 The issue raised in the special leave application in Pasini was whether the review process conferred by s 21 of the Act involved the exercise of the judicial power of the Commonwealth, and understandably, the High Court addressed, in the passages extracted above, the operation generally of ss 19 and 21 of the Act, though not the four conditions precedent of subs 19(1) individually which, upon fulfilment, lead into the remaining subsections of s 19. Accordingly no assistance of direct significance is to be derived from Pasini to either party's contentions in the present appeal.
29 The appellant also referred the Court to Haoucher v Minister of State for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648, being proceedings in the High Court relating to s 12 of the Migration Act 1958 (Cth) concerning deportation of a non-citizen convicted of a criminal offence committed in Australia, where at 661, Dawson J in his dissenting judgment referred to the following general principle:
"Of course, for a single hearing to satisfy the demands of procedural fairness in a process which takes place in stages, the initial hearing must itself be adequate."
The application of that principle is not inconsistent with the theme of the appellant's submissions in [21-25] above, nor with anything said in the majority judgments.
30 The appellant sought further comfort from the general rule, explained in the dictum of Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110, that if a person is subjected to the administrative action of a statutory authority having power to adversely affect the rights of that person, the authority is bound to consider the submissions of that person before exercising the power, and that if that rule of natural justice is to be displaced, the legislative intention of displacement must be unambiguously clear. Otherwise, as the Chief Justice pointed out, the courts will supplement the legislation by insisting that the statutory power is to be exercised only after an appropriate opportunity has been afforded to the person who, or whose property, is the subject of the exercise of the power. That rule was invoked by the Court of Appeal in Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 248 (Kirby P (as he then was)), 256-257 (Samuels JA), and 259 (Mahony JA). In the course of his discussion of the principle, Kirby P added (at 248) the following observation, upon which the appellant also placed reliance:
"In my view, there is no principle that an appellant is to be put out of court, and denied the discretionary intervention of the court to uphold the principles of natural justice, on the basis that he has 'elected' to appeal. Indeed, so much has been said, in clear terms, in a number of decisions of high authority."
31 In the present case, the appellant has adopted the course of appealing, rather than seeking prerogative relief, in order to pursue his case based upon non-fulfilment of subs 19(1)(d) of the Act. Consistently with the view expressed by Kirby P extracted above, I would not identify any procedural impedient in principle to the adoption of that course. Counsel for the FRG, who conducted its case fairly and frankly before the Full Court, did not raise any issue in that regard, and I think correctly so. There is no doubt that the critical issues which have arisen in the appeal have focused essentially on the consequences of non-fulfilment of s 19(1)(d).
32 The appellant concluded his written submissions in chief with the following summaries which may be conveniently extracted below verbatim:
"25. By the decision of His Honour Justice Jacobson the Appellant has been denied the opportunity to properly utilize a step in the extradition process provided by law in the Act. Further more the Appellant was put at an unfair disadvantage by not being allowed to bring his full defence forward on a prepared and considered basis.
26. Clearly having decided the denial of natural justice to the Appellant the result delivered was not proper. If it were then the modis operandi would be available for foreign countries to ignore directions of Magistrates and conduct their applications by ambush before the s 19 Magistrate. If the matter went to Review Respondents could then introduce changed and unauthenticated Statements of Conduct to be relied on by the Court of review as occurred in this case."
Those submissions have already been substantially addressed.
The respondent's submissions and my conclusions thereon
33 As already foreshadowed, the FRG adopted the course taken by the primary judge of re-hearing the proceedings, following upon his Honour's finding that Magistrate Moore had not allowed the appellant a reasonable time in which to prepare for the conduct of the proceedings in the Local Court. The FRG sought a measure of support from the dictum of Hill J in Dutton which I have extracted and addressed in [18] above. The FRG thereafter cited the following dicta of a Full Court (Neaves, Olney and Cooper JJ) in Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 361:
"In our opinion, the effect of these provisions is that, on the hearing of a review for which the person ordered to be committed to prison under section 19(9) has applied, the question for the Court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country and not the more limited question whether the person is eligible for surrender in relation to the offence or the offences in relation to which the magistrate has determined that the person is so eligible. The circumstance that the Act provides for the review of the magistrate's order and not for an appeal from that order is significant in this regard. It follows that in our opinion, the Supreme Court took too narrow a view of the scope of the review upon which it was engaged."
and in addition, the following dicta of a subsequent Full Court (Lockhart, Hill and Kiefel JJ) in the next stage of the Kainhofer litigation (1996) 70 FCR 184 at 194:
"The review is a review of the relevant order in this case, the order that Ms Kainhofer be committed to await surrender. But the issue on the review is not limited to the question whether Ms Kainhofer should be committed for surrender only in respect of the four counts found to constitute double criminality. The word 'review' is not a word of limitation; it is a word of great width. The word may have different meanings depending on its context: cf Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 and 509-510. In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate."
34 The context in which those statements of principle were enunciated in the course of the Kainhofer litigation, as in the case of the statements of principle referred to in Dutton, was not a rehearing arising out of non-compliance with subs 19(1)(d) of the Act. As I have already foreshadowed in my discussion of Dutton, the complaint made by the appellant in the present appeal falls within the parameters of par (d) of subs 19(1), leaving aside for the moment the import of the opening words thereof "the magistrate considers". The evident function of subs 19(1) generally is the stipulation of conditions precedent to a magistrate's statutory authority to make a determination as to whether a person is eligible for surrender in relation to an extradition offence propounded by an extradition country. I have not derived any decisive assistance from the principles propounded in Kainhofer in relation to the implications of non-fulfilment of par (d), if that non-fulfilment was present.
35 The FRG submitted that the denial of procedural fairness that arose from the insufficient time allowed by Magistrate Moore to the appellant to prepare for the hearing of the extradition proceedings in the Local Court was effectively remedied by the subsequent course of comprehensive review undertaken by the primary judge pursuant to subs 21(2) of the Act, and further that the appellant was not able to point to any matter which he had been unable to raise, or was precluded from raising, in the Local Court proceedings, and which he raised in the Federal Court before the primary judge. Moreover the FRG purportedly relied upon the provisions of s 21(6)(d) of the Act, which read as follows:
"(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;"
submitting thereby that the "consideration" of the magistrate was not "material" of that limited description. Incidentally as to the literal scope of the subs 21(2) review exercisable by the Federal Court, I would interpolate to record that in circumstances such as the present, where more than one extradition offence is involved, I agree that it was open to the primary judge, within the scope of subs 21(2), to confirm more than one offence, and to quash more than one offence, as a matter of convenient and sensible construction of that subsection. The issue remains as to the import and scope of operation of subs 19(1)(d), framed as it is as a condition precedent to the conduct by a magistrate of extradition proceedings.
36 It is appropriate to interpolate a procedural review difficulty raised by Hill J in Dutton at 136 as follows:
"The question does not arise here whether the Court could act on an accusation of denial of natural justice before the magistrate. Such an accusation would involve evidence as to the conduct of the proceedings before the magistrate and would thus, of necessity, involve matters not themselves being material before the magistrate. The answer may well be that such a matter could only be raised on an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), but not on a review under s 21 of the Act. In any event, it does not arise for decision in the present context."
The problem identified by his Honour arises out of the operation of subs 21(6) of the Act. I do not think that his Honour's observation applies adversely to the process of review of a magistrate's order upon the basis of non-fulfilment of a condition the subject of subs 19(1), or at least par (d) thereof, since the material needed to crystallise any such non-fulfilment is inherently "before the magistrate". In any event, I should observe that the 1977 review legislation has been no longer available in the context of extradition proceedings since 1988: see Extradition (Repeal and Consequential Provisions) Act 1988 (Cth), ss 5 and 7 and par (r) of the Schedule thereto. Were it not for that legislative exemption, and if I otherwise came to the conclusion that his Honour's concern in that latter regard was justified, I would have given favourable consideration to the grant of leave to the appellant to make an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) out of time, and thereafter to provide relief consistently with that which I would propose to be granted in any event.
37 I acknowledge the force of the FRG's submission, made in [34] above, that the scheme of the Act provides for review in the nature of a re-hearing. However by inserting subs 19(1)(d) into the Act, the Legislature thereby incorporated a condition precedent to the determination by a magistrate of eligibility for extradition, being a condition of particular significance to extradition proceedings, doubtless because of the complexity potentially involved in resolving issues of "equivalent conduct" pursuant to subs 19(2)(c) of the Act. Conceptually, there cannot be a re-hearing, as distinct from a fresh hearing, when a condition precedent to the original hearing has not been fulfilled.
38 In my opinion, the condition precedent the subject of s 19(1)(d) of the Act would not be satisfied, merely because a magistrate might purportedly give consideration to the question whether the person sought to be extradited had a reasonable time in which to prepare for his or her defence of the proceedings in the Local Court. Any such consideration is required to be something more than perfunctory. Unless the s 19(1)(d) expression the "the magistrate considers" imports the notion of "reasonably considers", or "rationally considers", s 19(1)(d) would be susceptible to fulfilment by a mere perfunctory consideration on the magistrate's part. What confronted therefore Magistrate Moore for consideration, in the context of the proceedings at first instance, was a jurisdictional fact imposed by s 19(1)(d) as to the objective reasonableness or otherwise of the time within which the appellant would be able to prepare for the conduct of those proceedings.
39 It is common ground in the present Full Court appeal that in the circumstances prevailing, no such reasonable time was allowed by his Worship and in any event, that would have been my conclusion, consistently with the finding of the primary judge. So radically inadequate was the consideration afforded by his Worship that it could not be objectively postulated that the condition precedent the subject of s 19(1)(d) was satisfied. It follows that fulfilment of the statutory requirement for a reasonable time for preparation constitutes a condition, the existence of which is necessary to be established as the basis upon which a magistrate is empowered to thereafter undertake the conduct of the proceedings in the Local Court (Corporation Of The City of Enfield v Development Assessment Commissioner (1999) 199 CLR 135 at 148 (Gleeson CJ, Gummow, Kirby and Hayne JJ)). Or perhaps put another way, a magistrate cannot establish the jurisdiction of the Local Court to proceed with extradition proceedings by "a wrong decision on a point collateral to the merits of the case upon which the limit to the Court's jurisdiction depended" (The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1994) 69 CLR 407 at 455), the "point collateral" being here the fulfilment of s 19(1)(d).
40 I would therefore conclude that since Magistrate Moore not only denied to the appellant a reasonable time within which to prepare for the conduct of the extradition proceedings, but could not objectively be said reasonably to have given consideration to the fulfilment of s 19(1)(d), as a condition precedent to his entitlement to continue with the hearing of the extradition proceedings, his Worship was not authorised by the Act to determine the eligibility of the appellant for surrender to the FRG. Without fulfilment of that condition of exercise of his statutory authority to determine the eligibility of the appellant to surrender, his Worship acted without jurisdiction. In those circumstances, it was in my opinion not open to the Federal Court at first instance, having in substance determined that the jurisdictional fact the subject of s 19(1)(d) was not satisfied, contrary to the finding of his Worship, to thereafter enter upon its own consideration, and to make its own determination pursuant to subs 21(2) of the Act, as to whether one or more of the extradition offences ought to be confirmed or quashed.
41 Counsel for the FRG acknowledged in supplementary submissions that in the event of a finding of the Full Court that any non-fulfilment of the subs 19(1)(d) circumstance could not be remedied by the primary judge by way of a rehearing of the issue, the prejudice flowing from the denial by the magistrate of the reasonable time stipulated by subs 19(1)(d) could not be cured. Accordingly, so the FRG submissions continued, upon the basis that the appellant could no longer be said to be on remand on a provisional arrest warrant the subject of s 12 of the Act, or pursuant to an order by way of remand under s 15 thereof, the Court may only give effect to the conclusions which have been reached in these reasons for judgment by either:
First, setting aside that part of the judgment the subject of appeal that confirms the orders of the magistrate (ie counts 3 to 9);
Secondly, affirming that part of the judgment quashing the orders of the magistrate (ie counts 1, 2 and 10);
Thirdly, quashing the warrant already issued pursuant to s 19(9)(a) of the Act;
Fourthly, directing the release of the appellant;
or alternatively to "fourthly" above, by remitting the proceedings to the primary judge and directing that his Honour in turn direct a magistrate to order the release of the appellant under s 21(2)(b)(i) of the Act.
42 The first three courses abovementioned are plainly correct, and I think that the former fourth alternative course (as to release of the appellant) is preferable to the latter. The Act implicitly stipulates no different regime of review in substance between that undertaken by a single Federal Court judge by way of review, and that undertaken by a Full Court on appeal: see subss 21(2) and (3) of the Act. There is no reason in principle why a Full Court cannot direct the release of a person whom it has found not to be eligible for extradition, as in the case of a single judge pursuant to the authority explicitly conferred upon him or her by subs 21(2) of the Act.
43 The FRG also correctly accepted that the effect of the Full Court making orders along the lines described above would be to terminate the present extradition proceedings, subject only to the FRG making application to the High Court for special leave to appeal against those orders. The FRG further submitted that if an application for special leave to appeal to the High Court is not made, it would still be open to the German authorities to consider making a fresh request for extradition, pursuant to the Extradition Treaty between Australian and the FRG. I would reserve any conclusion on that submission for further debate, should the occasion arise.
44 There is no good reason in the meantime to withhold from making the appropriate orders in favour of the appellant, pending the expiration of the time for lodgment with the High Court of any special leave application by the FRG. Moreover as I have already indicated, the appellant has been in custody in Sydney for more than 17 months. The remaining 7 offences (or 5 offences, if the purported consolidation of offences numbered 5 to 7 represent in substance 1 offence only) not quashed by the primary judge may conceivably not attract any longer sentence in the FRG, irrespective of the maximum imprisonment stipulated in relation thereto, though of course that is a judgment for the FRG to make.
45 It follows that conformably with the orders suggested in the supplementary submission of the FRG, I would make orders to the following effect: