Extradition (Foreign States) Regulations; reg. 15 and form 4

Extradition (Repeal and Consequential Provisions) Act 1988, s. 8

Extradition Act 1988, ss. 5, 10 and 19

Crimes Act 1914, ss. 29A, 29B, 29C and 29D

Zoeller v. Federal Republic of Germany (1988) 80 ALR 174

Counsel for the Applicant: Mr. J.J. Spigelman, Q.C. and

Mr. T.F.. Robertson

Instructed by: Messrs. Barker Gosling

Counsel for the Second,Third and

Fourth Respondents: Mr. K.R. Handley, Q.C. and Mr.

J.V. Agius

Instructed by: Director of Public Prosecutions

1. The application be dismissed.

2. The applicant pay to the respondents other than the first

respondent their costs of the application.

3. Upon the conditions specified in this order the respondents

be restrained until 9.30 a.m. on 7 April 1989 from executing

the warrant issued by the first respondent on 14 September

1988. This order is subject to the following conditions:-

(a) The applicant, Guenter Zoeller, undertake to the Court

that he will appear in the Federal Court of Australia,

Queens Square, Sydney, on 7 April 1989 at 9.30 a.m.

(b) The applicant undertake to the Court that, in the event

that he does not appear at the Federal Court on 7 April

1989 at 9.30 a.m., he will pay to the Commonwealth of

Australia the sum of $200,000.

(c) The applicant procure from Marie Elaine Zoeller

(formerly Maraie Elaine Lee) an undertaking by her that,

in the event that the applicant does not appear in Court

on 7 April 1989 at 9.30 a.m., she will pay to the

Commonwealth of Australia the sum of $100,000.

(d) The said Marie Elaine Zoeller give to the Court such an

undertaking.

(e) The applicant undertake to the Court:-

(i) to surrender his passport to the officer in

charge of the Australian Federal Police at

Redfern;

(ii) not to apply for a fresh passport or other travel

document;

(iii) not to depart Australia;

(iv) not to approach airports or shipping terminals

from which aircraft or ships depart Australia for

overseas;

(v) to report each Monday, Wednesday and Friday

between the hours of 8 a.m. and 10 p.m. to the

officer in charge of the North Sydney Police

station;

(vi) to continue to reside at No. 17c/50 Whaling

Street, North Sydney.

4. Stand over the matter to 7 April 1989 at 9.30 a.m. when the

applicant may make such application for a further stay of

proceedings as he may be advised.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

In his further amended application for an order of review filed on 13 March last the applicant has sought review of the decision of the Attorney-General to issue a notice pursuant to para. 15(1)(a) of the Extradition (Foreign States) Act 1966 ("the 1966 Act"), and also the decision of the first respondent, who is a magistrate, made on 14 September 1988 to issue a warrant for the applicant's apprehension pursuant to para. 16(1)(a) of the 1966 Act. The applicant seeks an order restraining the second respondent, who is a police officer, from executing the warrant issued by the magistrate and also an order restraining the Director of Public Prosecutions from proceeding under the 1966 Act or the Extradition Act 1988 ("the 1988 Act") before a magistrate to have that magistrate determine whether the applicant is liable to be surrendered to the Federal Republic of Germany.

2. In short the grounds relied upon by counsel for the applicant at the hearing were:-

1. The issuing of the notice and the warrant constituted a

wrongful exercise of power because the decisions to issue

them involved the Attorney-General and the magistrate in

conduct which was so oppressive as to constitute an abuse of

power and require the intervention of this Court.

2. Both the notice and the warrant inaccurately recited the

German offence in that they included words in relation to one

charge which were not properly part of the charge.

Furthermore, the notice was invalid because it did not

specify with sufficient particularity the offences for which

the applicant was to be extradited.

3. In order to put it aside, I mention that it was appropriate for the applicant to seek the review of the decisions in question, notwithstanding the decision of this Court in Wiest v. Director of Public Prosecutions (Federal Court of Australia, Full Court, 21 December 1988, unreported). That case was concerned with a review under s.18 of the 1966 Act and the question whether proceedings for judicial review might be taken in respect of the same matter as was raised by an application for review under the Act. Here the challenge is to decisions made under ss. 15 and 16 of the 1966 Act with the consequence that the Administrative Decisions (Judicial Review) Act 1977 is available. That proposition was conceded by counsel for the respondents. Another matter I put aside is any question concerning the applicant's right to seek the review of the decision of the magistrate. Mr. Webb is a State magistrate who was exercising federal jurisdiction. But his decision is open to review because of the decision of this Court in Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533.

4. The warrant in question in this case is not the first warrant to have been issued against the applicant. An earlier warrant was found by me to have been invalid; Zoeller v. Federal Republic of Germany (1988) 80 ALR 174. The fresh warrant, which is the subject of this case, was issued on 14 September 1988. It was issued after another German citizen, Mr. E.A. Wiest, had unsuccessfully sought to restrain extradition proceedings against him on the grounds, inter alia, that the issue of a second warrant was unlawful either because its issue was prevented by the application of some aspect of the doctrine of estoppel or because its issue was an abuse of power. That argument was rejected at first instance. An appeal to this Court failed but the Court's decision on the appeal was not given until 21 December 1988; see the Wiest case above cited. The applicant's case was adjourned by consent until after the Wiest judgment had been delivered and Mr. Wiest's application for leave to appeal to the High Court had been dismissed.

5. Originally it had been intended to raise in this matter one of the matters raised in the Wiest case, namely, that the issue of the second warrant was per se an abuse. That argument ceased to be available after the decision in Wiest's case.

6. The matters, however, upon which the applicant does rely to establish an abuse stem from the earlier proceedings. In short it is contended that the decisions to issue the notice pursuant to s. 15 of the 1966 Act and the warrant pursuant to s. 16 thereof should not have been made unless the German Government undertook to see to it that the applicant was given credit in Germany, in the event that he should be convicted, for the time served in prison in Australia (a period of approximately 10 months). It was further contended that neither of the decisions should have been made unless the German Government undertook to pay the applicant's costs of appearing before the magistrate who dealt with the matter pursuant to s. 17 of the 1966 Act. This was because those proceedings were found by me to have been based upon a request for extradition made by the German Government which did not comply with the provisions of the 1966 Act; see the Zoeller case above cited.

7. The matters relied upon by the applicant are brought out in an exchange of correspondence between the applicant's solicitors and the Director of Public Prosecutions. Of the matters upon which they intended to rely at the hearing, the applicant's solicitors, in a letter dated 8 March 1989, said:-

"... we hereby put you on notice that we do

intend to pursue in these proceedings the

said ground (the second ground in the

application), and/or the analogous ground of

abuse of process, subject to:

(a) Your providing us with a bank cheque

for $40,000.00 prior to the hearing

of these proceedings in payment of

our client's costs in the proceedings

before Mr. Conroy Magistrate

concluded on 26 November 1987 and

the subject of the successful

appeal to the Federal Court.

(b) Your providing to our client an

undertaking from the Federal

Republic of Germany that, in the

event that he is ultimately returned

to the Federal Republic of Germany,

he will be given credit for the time

spent in custody between the date of

his arrest on 5 June 1987 and his

release on 23 March 1988 (in total

292 days) pursuant to orders of His

Honour Mr. Justice Sheppard. That

is, if he is convicted and sentenced

to a term of imprisonment, he shall

be treated as having served 292 days

of that term, and that rights in the

nature of remissions which would

have been earnt during that time if

he had served it in the Federal

Republic of Germany are credited to

him and any rights to day release,

home detention or work programs

accrue as if he had served the time

at the commencement of his sentence.

In this regard, we draw your

attention to the requisition of the

Federal Republic of Germany dated 6

September 1988 which states:

'... to keep him under arrest until

the carrying of the extradition and

then to advise for how long he has

been under arrest only because of

this request for extradition' (our

underlining).

..................................."

I have omitted a further ground which was to be relied upon stated in para. (c) because it was not relied upon by counsel for the applicant at the hearing.

8. The relevant paragraphs of the reply dated 13 March 1989 were as follows:-

"In relation to paragraph (a) of your letter

I note that no order as to costs has been, or

could be, made in relation to the proceedings

before Mr. Conroy, Magistrate. I therefore

decline your invitation to provide a bank

cheque for $40,000.

In relation to paragraph (b) of your letter,

I note that the question of the sentence to

be imposed on Zoeller, if he is convicted, is

a matter for the appropriate judicial

authority in the Federal Republic of Germany.

No doubt the time which your client has spent

in custody in Australia by reason of the

extradition proceedings would be drawn to the

attention of that court."

9. The question whether a magistrate has power to accept an undertaking by the Director of Public Prosecutions to pay costs in circumstances such as this has been the subject of argument in a further application in the Wiest litigation; Director of Public Prosecutions v. Wiest (No. G1034 of 1988). The matter was argued before Pincus J. but judgment has not as yet been delivered.

10. Counsel for the respondents submitted that the matter had to be looked at as it was in September 1988 and not as it was in March 1989 when the letters were written. He also submitted that the magistrate's decision and act under s. 16 of the 1966 Act were purely ministerial. The magistrate was bound to issue the warrant once he had before him a notice apparently validly issued under s. 15 by the Attorney-General. In other words the magistrate, unlike the Attorney-General, had no discretion but to act in accordance with the statute. I agree with that submission. The consequence is that the matters upon which counsel for the applicant relies need to be considered only in relation to the question whether failure to take them into account by the Attorney-General in his decision to issue the notice is in some way unlawful or an abuse of power. This could occur if he omitted relevant considerations from account, made a decision that was so unreasonable that no reasonable person could have arrived at it or made a decision which was so oppressive that it constituted an abuse of the exercise of the power. It is of no importance how precisely one approaches the matter. The various grounds I have stated tend to overlap and I do not propose to endeavour to put this case into any particular compartment.

11. The question then is whether, in a broad sense, what was done constituted an abuse of power. The matters relied upon stem from the form of the request for extradition issued by the German Government requesting the Australian Government to commit the applicant to custody for extradition, to keep him under arrest until the carrying out of the extradition "and then to advise for how long he has been under arrest only because of this request for extradition." The request concluded, except for formal matters, with the following paragraph:-

"It is also assured that the extradited

person will not be re-extradited, handed over

or deported to a third country from the

Federal Republic of Germany without the

consent of the Australian Government, and

that he will be allowed to leave the Federal

Republic of Germany after final completion of

the proceedings for which the extradition has

been approved.

It is also assured that the penalty, if to be

imposed, will not be imposed or increased on

political, military or religious grounds, and

that the arrest for extradition purposes

undergone in Australia will be credited on

the penalty, if to be imposed."

12. Counsel for the applicant submitted that because of the words "advise for how long he has been under arrest only because of this request for extradition", the words of the paragraph at the end of the request which I have quoted, should be construed as indicating that the German authorities would not be prepared to give credit to the applicant for the time served in prison in Australia as sought in his solicitors' letter earlier set out. This was because that period of imprisonment was served as a consequence of the earlier extradition proceedings which I found to be unlawful and not as a result of the current request for extradition. I should perhaps say that Mr. Zoeller has been at liberty since my order setting aside the earlier proceedings which was made on 22 March 1988. He has given certain undertakings designed to ensure his appearance in Court from time to time. Thus he has served no period of imprisonment as a consequence of the issue of the request which have led in turn to the issue of the notice and warrant in question in this application.

13. If one reads the paragraph quoted from the German request, there is not to be found in it any suggestion that the German authorities will not give the applicant credit for the period of imprisonment which he has served. But, so counsel submitted, the request should be read as a whole and the earlier words referring to the period of imprisonment "only because of this request for extradition" should be seen as imposing a limitation on the obligation assumed by the German Government in the undertaking which it gave. In any event, so counsel said, the request was ambiguous. No notice should have been issued by the Attorney-General unless he was satisfied that the German Government would see to it that the applicant was in fact given credit, in the event that he was sentenced in Germany, for the period of imprisonment which he has served here. His submissions in relation to the question of costs were similar. It was not to the point that there might be a question whether the magistrate had power to award costs. Steps to extradite the applicant should not have been instituted unless the German Government assured the Australian Government that it would pay the applicant's costs of the aborted proceedings before the first magistrate as a condition of the request being granted.

14. I fully appreciate the reasonableness of the requests which Mr. Zoeller, through his solicitors, has made. One can understand that he must be quite dismayed at the possible prospect of receiving no credit whatever for time served here as the result of the issue of a warrant which was unlawful. But in the submission of counsel for the respondents, that is a matter for the German court which, if the applicant is found guilty, imposes sentence on him. The analogy was drawn between this case and a purely local one in which an accused person was convicted and sentenced here. If the trial miscarried and a new trial were ordered, the accused would probably be granted bail. If he were tried again and convicted, the question whether the time already served by him should be taken into account would be within the discretion of the sentencing judge. It may be that almost always that discretion would be exercised favourably to the accused, but no court would require the discretion to be exercised in any particular way in advance of the fresh hearing. If there were an error by the sentencing judge, the accused's only remedy would be to appeal after the sentence was imposed.

15. The considerations mentioned by both counsel in relation to costs were similar in character to their submissions in relation to giving credit for the period of imprisonment served. On the one hand counsel for the applicant contended that it was quite unreasonable for the German Government not to pay the applicant's costs of the aborted proceedings; counsel for the respondents said that this was not a relevant matter. An Australian citizen, unless there were exceptional circumstances, would not recover the costs of a trial which had miscarried.

16. I have weighed these various factors, but in my opinion there is a further factor which is of fundamental importance. The 1966 Act provided for an elaborate procedure pursuant to which persons could be extradited to other countries. I do not refer to the detail of these provisions. They have been set out and discussed in a variety of authorities including the earlier Zoeller case itself. The point to be made is that nowhere is there to be found in the elaborate procedure which is provided for any requirement that a requesting state must give credit for time served in prison in Australia or pay costs incurred by the applicant as a result of the taking by the local authorities of some step subsequently found to be unlawful. I do not regard the absence of any such provision in the legislation as conclusive, but it is a matter which must be given substantial weight when the question of an abuse of power is being considered. That is particularly so when one adds into account the consideration that the issue of a second warrant in the circumstances of a case such as this is not per se an abuse of power; Wiest's case.

17. Having reflected on the matter, I have reached the conclusion that the circumstances of the case do not disclose anything in the nature of an abuse. The primary consideration for the Attorney-General was to consider whether the specific requirements provided for in the legislation for the issue of the notice were present. His decision that they were is not the subject of challenge because there is no question but that all matters required by the Act to be complied with before the issue of the notice had been complied with. What is then said is that the Attorney-General, without any request in that behalf from the applicant or his solicitors, should have taken it upon himself to tell the German Government that the notice would not be issued unless it agreed in plain terms to procure a situation in which the applicant was given credit for the time he had served and the German Government agreed to pay the applicant's costs before the magistrate of the earlier unsuccessful application. I fail to see how the course which the Attorney-General took could, in those circumstances, possibly amount to an abuse of power. Accordingly, I reject the submissions made in support of the first ground upon which relief is sought.

18. Before leaving that matter, I should mention that there was some discussion about the nature of this Court's power to grant relief. This was a matter discussed in the judgments in the Wiest case. I found it unnecessary to decide it - see pp 3-4 of my judgment - and I do not think it necessary to decide it here. This is a case which, on the face of the application, is an application for judicial review. But, counsel for the applicant, without any amendment, also said that he was entitled to relief against all respondents except the magistrate (who is not an officer of the Commonwealth) under s. 39B of the Judiciary Act 1903. In this way he attempted to rely on a wider basis for relief than that which may have been available to him under the Judicial Review Act. As I said in Wiest, I do not think that the Court's attitude to relief will be very different whether it acts on purely administrative law grounds or upon some more general basis such as appears to have been relied upon by the Court of Appeal in New South Wales in the two cases cited in my judgment. For that reason it will be seldom, if ever, in my opinion, that one will need to decide whether the more general basis of relief is available to supervise a tribunal which is purely administrative in character and which, as in this case, is presided over by a magistrate who is a persona designata. If there is some wider basis for relief available in a case of this kind, then I am clearly of the view that this is not a case which calls for the intervention of the Court.

19. I turn to the second ground relied upon. The complaint which counsel for the applicant makes stems from the language of the German warrants which are relied upon and from the statement of the offences in para. (a) of the notice issued by the Attorney-General under para. 15(1)(a) of the 1966 Act. So far as relevant that paragraph provides:-

"15. (1) Subject to sub-section (2), where a

requisition for the surrender of a fugitive

who is, or is suspected of being, in or on

the way to Australia is made to the

Attorney-General by a foreign state, the

Attorney-General may, in his or her discretion-

(a) if a warrant for the apprehension

of the fugitive has not been

issued under section 16 - by

notice in writing in accordance

with the form prescribed for the

purposes of this paragraph, state

that the requisition has been made

and authorize the issuing by any

Magistrate of a warrant for the

apprehension of the fugitive;

................................."

20. Paragraph (a) of the notice which the Attorney-General issued on 14 September 1988 was as follows:-

"WHEREAS-

(a) a requisition has been made to me,

Lionel Frost Bowen, Attorney-General of

the Commonwealth of Australia, by the

Federal Republic of Germany, a state to

which the Extradition (Foreign States)

Act 1966 applies, for the surrender of

Guenter Zoeller (also spelt Gunter

Zoller), a fugitive who is accused of

the offences of violating or misusing

the obligation or authority assigned to

him by private act to look after, or

have someone else look after, third

parties' pecuniary interests and

thereby inflicting damage to the

persons whose pecuniary interests he

had to safeguard and making incorrect

declarations to the Revenue Authorities

on material taxation matters and thus

unlawfully curtailing taxes against the

law of that state and is in Australia;"

21. There were two warrants attached to the request made by the German Government for extradition. The first warrant, which was dated 10 June 1986, contained two charges which, in the English translation, were expressed in the following terms:-

"He is charged of having violated by two

independent acts:

On March 2, 1982 in Mainz his obligation

to look after third party pecuniary

interests which had been assigned to him

by private act and thus having inflicted

damage to that person whose pecuniary

interests he had to safeguard.

(and)

On March 18, 1982 in Montabaur,

acting conjointly,

having made incorrect declarations to

the Revenue Authority on material

taxation matters and thus unlawfully

curtailed taxes."

22. The second of the warrants, which was dated 24 June 1987, contained one charge which, in the English translation, was in the following terms:-

"He is charged of having misused in November

and December 1980 and in October 1981 in

Mainz and at other places the authority

assigned to him by private act to look after

third party's property or to have someone

else look after it and thus having inflicted

damage to that person whose pecuniary

interests he had to safeguard."

23. Appended to each warrant was a reference to the relevant provisions of the German Criminal Code. Also appended to the first warrant were the relevant provisions of the German Tax Code. It is unnecessary to quote the provisions of the German Criminal Code which are relied upon, but the provisions of the Tax Code are as follows:-

"Everyone will be imprisoned up to five years

or imposed a fine who makes incorrect or

incomplete declarations to the Revenue

Authorities or other Authorities on material

taxation matters."

24. The submissions made by counsel on behalf of the applicant relied on two matters, namely:-

1. The statement of the offences under the German Criminal Code

in para. (a) of the notice issued by the Attorney-General was

bad in form because it did not state clearly each of the

offences with which the applicant was charged, but simply

picked up the language of the Code without reference to the

particular matters relied upon by the prosecution in the

statements of the offences in the warrants.

2. The statement of the taxation offence in both the German

warrant and the notice contained words which were not an

element or ingredient of the offence, namely, the words, "and

thus unlawfully curtailed taxes". A reference to the

relevant provision of the German Tax code above set out

discloses that these words do not appear in the section. The

offence is apparently committed if one makes an incorrect or

incomplete declaration to the revenue or other authorities on

material taxation matters. The consequences of the making of

the statement do not form part of the offence.

25. An analysis of the misappropriation offences charged in the warrants shows that the applicant was charged with two offences, one of which (the first) accused him of violating his obligation to look after third party pecuniary interests which had been assigned to him by private act and the other (the second) of having misused the authority assigned to him by private act to look after third party's property or to have someone else look after it.

26. Paragraph 15(1)(a) of the 1966 Act provided for the issue of the notice in question. The notice was to be in writing in accordance with the form prescribed for the purposes of the paragraph. The notice was to state only that the requisition had been made and that it authorized the issuing by any magistrate of a warrant for the apprehension of the fugitive. The form of notice was prescribed by regulation 15 of the Extradition (Foreign States) Regulations; see form 4 in the Schedule thereto. Paragraph (a) of the prescribed form of notice required the Attorney-General to state that a requisition had been made to him for the surrender of the fugitive, "who is accused of the offence of (to be supplied) against the law of" the state seeking the surrender. Thus, notwithstanding the provisions of para. 15(1)(a) of the 1966 Act, the form did require the statement of the offences.

27. Notwithstanding an attempt by counsel for the respondents to persuade me that there was a proper statement of the offences if one looked at the offences charged in the German warrants and compared them with the language used in para. (a) of the notice, I do not think that this is so. Certainly there is an indication of what it is that the applicant is supposed to have done. But this is only in a very broad sense. Nevertheless, the 1966 Act itself did not require the offences to be stated. They were stated concisely in the German warrants which were presented to the magistrate before he issued the Australian warrant. If there were here a question of a denial of natural justice, the position might have been difficult for the respondents. But nothing of that kind is involved. A person whose extradition was sought was not intended by the legislation then in force to have notice of the charges or offences until after he had been served with the Australian warrant for his arrest issued by the magistrate pursuant to s. 16 of the 1966 Act. By then he would have available copies of the German warrants and know precisely what was charged against him. It follows, notwithstanding my criticism of para. (a) of the notice, that there was a sufficient compliance with the statute, with the consequence that the matters relied upon in para. (1) of counsel's submissions do not entitle the applicant to relief.

28. In relation to the taxation offence, I should first say that the word "unlawfully" which is found in both the translation of the second German warrant and in the Attorney-General's notice does not appear in the German warrant itself. This was agreed to by both counsel who said that the relevant words in the German warrant, when properly translated, were, "thus curtailing taxes". Nothing, however, turns on this.

29. Counsel for the applicant developed submissions about the presence of these words, not only in his principal address, but also in reply. This was because counsel for the respondents in his principal address relied on the principle that words which are mere surplusage should be disregarded. He relied upon statements of the principle to be found in Archbold's summary of the Law Relating to Pleading and Evidence in Criminal Cases, 11th edition (1849), pp 44 and 56. At the former page it is said that every fact and circumstance laid in an indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage and need not be proved. At p 56 the question of repugnancy is discussed and it is said that, if the repugnancy be in an immaterial part, it may in general be rejected as surplusage, especially after verdict. The matter has since been the subject of legislation, but in the 43rd (1988) edition it is said at p 45 that allegations which are not essential to constitute an offence and which may be omitted without affecting the charge do not require proof and may be rejected as surplusage.

30. Counsel also relied on Stephen on the Principles of Pleading in Civil Actions, 6th ed., (1860) at pp 309-10 and pp 339-343. He also referred to Broom's Legal Maxims, 10th ed. (1939) at pp 425-6.

31. Counsel for the applicant sought to counter the surplusage submission by reference to the problem that the absence of the words would create for the respondents because, so he submitted, their absence would lead one to conclude that the taxation offence was not an extradition crime for the purposes of either the 1966 or the 1988 Act.

32. Subsection 4(1A) of the 1966 Act provided that an offence against the law of a foreign state, including, inter alia, an offence against such a law relating to taxation, for which a requisition for surrender of a person had been made to the Attorney-General was an extradition crime if, but only if, the maximum penalty for the offence was imprisonment for not less than 12 months and, had a relevant act or omission by the accused taken place in Australia, that act or omission would have constituted an offence against the law in force in Australia the maximum penalty for which was imprisonment for not less than 12 months.

33. Counsel for the applicant drew my attention to the various sections of the Crimes Act 1914 which were said to provide for equivalent offences. These sections were ss. 29A, 29B, 29C and 29D. These sections were referred to by me in the earlier Zoeller case (80 ALR at pp 198-200) and I do not repeat what I there said about them. It was counsel's submission that in the absence of the words in question, there was no equivalent Australian offence. Counsel distinguished between the earlier position which had existed and that which he contended now prevails as a result of the coming into force on 1 December 1988 of the 1988 Act.

34. Counsel's submission makes it necessary to refer to certain provisions of the 1988 legislation which comprised the Extradition (Repeal and Consequential Provisions) Act 1988 and the 1988 Act itself. The applicant is not, within the meaning of the Consequential Provisions Act, a "former Act person"; see subsec. 8(2). The consequence is that the 1966 Act does not now apply to the applicant; his case is covered henceforth by the 1988 Act. On that basis the provisions of subsec. 8(2) of the Consequential Provisions Act operate to make the notice issued pursuant to s. 15 and the warrant issued pursuant to s. 16 of the 1966 Act respectively a notice issued under s. 16 and a warrant issued under s. 14 of the 1988 Act. Thus the proceedings continue under that Act rather than under the former Act.

35. It is then necessary to consider the provisions of s. 19 of the 1988 Act which provides for the determination of the eligibility for surrender. Paragraph 19(2)(c) provides:-

"19. (2) For the purposes of subsection

(1), the person is only eligible for

surrender in relation to an extradition

offence for which surrender of the person is

sought by the extradition country if:

.............................................

(c) the magistrate is satisfied that, if

the conduct of the person constituting

the offence in relation to the

extradition country, or equivalent

conduct, had taken place in the part of

Australia where the proceedings are

being conducted and at the time at

which the extradition request in

relation to the person was received,

that conduct or that equivalent conduct

would have constituted an extradition

offence in relation to that part of

Australia;"

36. "Extradition offence" is defined in s.5 of the Act to mean,

"(b) in relation to Australia or a part of

Australia - an offence against a law of

Australia, or a law in force in the

part of Australia, for which the

maximum penalty is death or

imprisonment, or other deprivation of

liberty, for a period of not less than

12 months;"

37. Section 10 contains a number of interpretive provisions.

"(2) A reference in this Act to conduct

constituting an offence is a reference to the

acts or omissions, or both, by virtue of

which the offence has, or is alleged to have,

been committed."

38. Counsel for the applicant submitted that the effect of these provisions was that, once the words, "and thus unlawfully curtailed taxes" in the statement of the tax offence were removed, it was not a crime for which the applicant could be extradited.

39. Notwithstanding a perfunctory submission to the contrary by counsel for the applicant, I have no hesitation in saying that I think that, if there were anything in the submission, the tax offence would be severable so that the two misappropriation offences would remain. But counsel for the respondents drew my attention to s. 29B of the Crimes Act which provides for the offence of imposing upon the Commonwealth and which was not relied upon by me in the earlier judgment. I think there is force in his contention that in terms an offence under s. 29B would be committed in Australia if, in substance, the same statement of the offence was made here as is made in the first German warrant. Counsel also submitted that the construction of para. 19(2)(c) of the 1988 Act contended for by counsel for the applicant was not correct.

40. I do not decide these matters because I have decided to accept the primary submission of counsel for the respondents that to deal with the matter now would be premature. The challenge which the applicant makes has to be determined upon the facts as they were available to the Attorney-General and the magistrate in September last. The 1988 Act was not then in force. I find it difficult to see how, in those circumstances, it could be appropriate now to call into question what was done. To do so would be to look at what was then done with the hindsight which is now provided by the 1988 Act.

41. That apart, the tax offence is plainly severable from the misappropriation offences and I have rejected the submission that the Attorney-General's notice was bad in form because of the running together of the provisions of the German legislation relevant to each of those offences. If I were to uphold the submission based on the tax offence, my decision would have no effect except to take out the tax offence. The others would remain and the matter would need to go to the magistrate for this purpose. I think the preferable course is not to reach a conclusion on the correctness of the submissions, relied upon by counsel for the applicant and to let the matter go to the magistrate who will be able to rule upon all questions (including the proper construction of para. 19(2)(c) of the 1988 Act) which may be raised about the validity of the procedure which has been adopted (other than those determined adversely to the applicant in these proceedings). If either party is dissatisfied with the outcome before the magistrate, the 1988 Act provides for an appropriate review; s.21. Leaving the matter in this way will not foreclose the question at issue against either party. This indeed was a matter which troubled counsel for the applicant who seemed anxious not to have taken away the opportunity of contending before the magistrate that the tax offence was not one for which the applicant could or should be extradited.

42. In the result I have reached the conclusion that the application should be dismissed with costs. However, I do not propose to make any order on the application until I have heard counsel on the question of the form of the orders which should be made.