Re Wilson; Ex parte Witness T [1976] HCA 33

The applicant, also to be called in the interest of Albert Kruger, has not yet given any evidence, though apparently he has been represented before the magistrate.

The grounds upon which the applicant seeks an order to prohibit the magistrate from taking the evidence of the applicant, are:

(i) The proceedings being conducted by the special magistrate are inquiring into matters of a political character.

(ii) It is a denial of natural justice and contrary to s. 27 of the Extradition Act to permit the German judges to continue to ask questions in a manner which is inquisitorial in form and contrary to the rules of evidence of the State of South Australia, whilst purporting to take the evidence pursuant to the said rules of evidence and the protection therein contained.

(iii) The regulation pursuant to which the Witness T. has been called upon to give evidence is ultra vires the Extradition (Foreign States) Act 1966, as amended.

The applicant further seeks to prohibit the special magistrate from permitting the German judges to ask witnesses any questions, either directly or through the magistrate, on the ground that s. 27 of the Act prescribes that the proceedings shall be conducted in accordance with the laws of the State in which the evidence is being given. He further seeks to prohibit the special magistrate from permitting the distribution of copies of the transcript other than in accordance with s. 27(2) (c) of the Act.

The first ground challenges the validity of the Attorney-General's authority purportedly given under the Act. It was said to be invalid because some, if not all, of the offences on which the Court in West Germany is engaged in trying Albert Kruger are offences of a political character or that they are so by reason of the circumstances in which they are alleged to have been committed. In passing, it may be observed that the terms of the relevant ground on which prohibition is sought do not express the real objection which the applicant seeks to raise, which is, as I have expressed it, following the language of the Act.

The offences with which Albert Kruger is charged in West Germany appear to be breaches of the penal law of West Germany. I gather from the papers placed before us that the various acts which form the basis of the charges were committed at a place in what was, at the time, known as White Russia where Albert Kruger was in the service of the German Government during the invasion by Germany of that area and the subjugation of its inhabitants.

In order to dispose of the submission that the magistrate lacked jurisdiction because of the invalidity of the authority purported to be given under s. 27(1) of the Act, it is, in my opinion, sufficient to say that none of the offences with which Albert Kruger is charged is, in its nature or in the circumstances in which it is alleged to have been committed, an offence of a political nature. I am content for the purpose of supporting that conclusion in the circumstances of this case to adopt the view of Viscount Radcliffe expressed in Schtraks v Government of Israel [9] :

In my opinion the idea that lies behind the phrase "offence of a political character" is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of "political" in this context is with "political" in such phrases as "political refugee", "political asylum" or "political prisoner". It does indicate, I think, that the requesting State is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international aspect. It is this idea that the judges were seeking to express in the two early cases of In re Castioni [1] and In re Meunier [2] , when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugitive and requesting State is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders. 1. [1964] A.C. 556, at pp. 591-592. 2. [1891] 1 Q.B. 149. 3. [1894] 2 Q.B. 415.

Here, the offences of which Albert Kruger is accused are founded upon acts which are not shown to have been done in any sense by way of, or in performance of, political opposition by him to Germany as it formerly was, or to West Germany which now prosecutes him: nor is it shown that they were done in the course of a political disturbance. They appear to have been done in the course of an operation in wartime by Germany, in whose service Albert Kruger was, in the course of subjugating a foreign population, and in connexion therewith combating the activities of local partisans. What he is charged with doing is said to have been done in the course of that German operation.

In my opinion, the authority of the Attorney-General was valid. Through it the magistrate obtained jurisdiction to take the evidence of witnesses brought before him in relation to the matter before the Court in West Germany.

As to the next ground and the claim to prohibit the magistrate from allowing questions to be put to the witness by the German judges, I am of the opinion that the fact that the magistrate has allowed questions to be put to a witness and may allow questions to be put to the applicant by one or both of the German judges to whom I have referred, is not a ground on which prohibition should be granted either in an unqualified form or in a form which would preclude the questioning of the applicant by those judges.

The magistrate was not deprived by the Act of the powers and discretions inherent in his office as a special magistrate. He was chosen to take the evidence because he was a magistrate appointed under South Australian law. I do not read s. 27(2) as exhaustively stating all that he might do in the course of taking evidence. Section 27 is defined to serve a quite special and, at the same time, quite limited purpose, that of taking evidence at the request of a foreign state for use in the course of criminal matters pending in the courts of that state. The magistrate who takes such evidence exercises no more than a recording function. He decides no matter of right and makes no rulings as to admissibility of evidence. All that will be for the foreign court, whose law may be unknown to the magistrate as may be its detailed rules as to admissibility of evidence. To seek to equate the magistrate's function under s. 27 with that which he fulfils when presiding at committal proceedings, and to do so in reliance upon par. (a) of s. 27(2), mistakes the sense of that paragraph and ignores the context in which it appears, as a part of s. 27. The reference in s. 27(2) (a) to evidence being taken "in like manner" as if it were being given on a charge for an indictable offence refers only to the mode of taking of the evidence: thus, it is to be taken in open court and by means of the familiar processes of examination in chief and cross-examination. To give it a meaning which would otherwise restrict the magistrate's conduct of proceedings would be to disregard the quite special role of s. 27. It follows that the magistrate was entitled to ask questions of the witness himself and, in my opinion, he had jurisdiction at least to allow the judges of the Court of the Federal Republic of Germany to do so.

Further, I am of opinion that there is no substance in the ground that the magistrate went beyond his jurisdiction in allowing copies of the transcript of evidence to be made available to counsel and to the German judges. Section 27(2) (c) imposed a duty on the magistrate to cause the transcript of evidence to be sent to the Attorney-General but it did not forbid him to make available copies of the transcript to interested parties. The provisions of the law of South Australia with respect to the custody of depositions were irrelevant in this regard.

Lastly, it was also objected that regs. 5, 6, 7 and 10 of the Extradition (Foreign States) Regulations (Statutory Rules 1967, No. 47, as amended) are ultra vires because inconsistent with the Act. (See s. 31.) That section provides that the Attorney-General is empowered to make regulations, "not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular prescribing the practice and procedure in relation to the performance by Magistrates of functions under this Act, including the summoning of witnesses " These challenged regulations, amongst other things, empower a magistrate to issue a summons requiring the person therein named to appear as a witness, impose a duty on the person summoned to attend and provide for the arrest and punishment of a person who fails to attend as summoned.

However, by s. 27(4) of the abovementioned Act it is provided that "The laws of each State or Territory with respect to the compelling of persons to attend before a Magistrate, and to give evidence, answer questions and produce documents, upon the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application ". It was submitted that s. 23 of the Justices Act, 1921 SA, as amended, is a law of that State with respect to the compelling of persons to attend before a magistrate and give evidence within s. 27(4) and that the regulations under which the applicant has been summoned are for that reason inconsistent with the Act and invalid. It may be assumed, without deciding, that s. 23 is a law of the kind referred to in s. 27(4) but it does not follow that a regulation which deals with the summoning of witnesses in accordance with the express power given by s. 31 is for that reason inconsistent with the Act. The State law, if applied by the Act, does not become part of the Act so as to create an inconsistency with a regulation made under s. 31.

In my opinion, the application should be dismissed.

I agree with the reasons of the Chief Justice which I have had the advantage of reading.

I would dismiss this application for the reasons stated in the judgment of the Chief Justice.

In this case it is sufficient to say that the offences with which Kruger is charged by the Federal Republic of Germany, namely murder and attempted murder, arise, according to the evidence, out of acts committed in that part of Soviet Russia which was occupied by the Armed Forces of Nazi Germany in the Second World War and during the course of that occupation. The passage from the judgment of Viscount Radcliffe in Schtraks v The Government of Israel [3] to which the Chief Justice has referred in his reasons for judgment makes it plain that in these circumstances none of the offences with which Kruger is charged is in its nature or in the circumstances in which it is alleged to have been committed an offence of a political character. In no sense can it be said that the accused is "at odds with" the Federal Republic of Germany or that he has been charged "on some issue connected with the political control or government of the country" or that the Federal Republic of Germany is "after him for reasons other than the enforcement of the criminal law in its ordinary common or international, aspect". For this reason I consider the authority given by the Attorney-General to the magistrate pursuant to s. 27(1) of the Extradition (Foreign States Act) 1966-1974, as amended, to be valid.

As to the other questions which were argued I am in agreement with what has been written by the Chief Justice.

The offences with which the defendant is charged are offences which were committed in territory of the Soviet Union which at the time of the commission of the alleged offences was in the occupation of Germany. He was a resident of the occupied territory and the offences are alleged to have been committed against other residents of that territory. If it were correct to assume that all the offences were committed in the course of what is described in the documents as combat operations against partisan groups and were committed in support and as part of a campaign by the occupying power against the partisans I would have difficulty in concluding that the offences were not of a political character. The views expressed by Viscount Radcliffe in Schtraks v Government of Israel [4] would have no application in such a case. His views were expressed in a different context.

Nevertheless, in my opinion it has not been proved by evidence that the offences in respect of which the defendant Kruger is charged and in respect of which it is proposed that evidence be taken are offences which are, or which are by reason of the circumstances in which they are alleged to have been committed, offences of a political character. A most significant feature of the present case is that the defendant himself does not claim that the alleged offences are of that character. Indeed he alleges that the witness who now seeks this writ is able to give evidence which would exonerate him "in significant respects" and thereby requires that the evidence be taken in Australia before a magistrate. The Court would need to be completely convinced in such a case that the offences were of a political character before it would on such ground deprive the man accused in the court of the foreign state of the benefit of the evidence of a witness in this country. I am not so convinced in this case. For one thing there is no satisfactory evidence that the acts with which the defendant was charged were done otherwise than "out of thirst for blood, greediness or other mean motives, cruel [semble, cruelty] or to make another crime possible or to cover one" as alleged in the writ of indictment of the German prosecutor. The acts may not be untypical of the kind which have made the happenings of those days infamous in history but it cannot be assumed that all of the acts here alleged to have been perpetrated were of a political character even if the commission of them was not punished by the political authorities in the area at the time. The offences alleged fall into two classes - acts of horrendous cruelty done against civilians and Russian prisoners of war whilst he was a member of the Field Police or Protection Police organized by the occupying power but not apparently in the course of his duties as such, and acts done whilst he was such a member in circumstances where they might, depending upon the circumstances, be described as done in support of and as part of the campaign against partisans. Whether or not the latter acts could when account is taken of their nature and the circumstances in which they are alleged to have been committed be proved to be offences of a political character (I express no opinion on this) the former acts certainly cannot be so described. That being so the order under s. 27 of the Extradition (Foreign States) Act 1966-1974 was validly made and the magistrate had jurisdiction to act under the order at least in respect of these alleged offences. It is not established that the evidence proposed to be given is in respect of matters relating to the acts done in the course of combat against the partisans. Conjecture or speculation that it may be in respect of such matters is no substitute for the proof which would be required before the defendant could be deprived of the benefit of evidence at his trial in West Germany. This ground therefore is not established. Upon the other grounds I agree with the conclusion of the Chief Justice and with his reasons.

This is an application under the Judiciary Act 1903-1973, s. 38(e), by the prosecutor (described as the witness T.) for a writ of prohibition against Mr. Wilson, a special magistrate of the State of South Australia authorized by the Attorney-General of Australia to take evidence under the Extradition (Foreign States) Act 1966-1974 ("the Act"). It seeks to prohibit Mr. Wilson from proceeding to take the prosecutor's evidence for criminal proceedings pending against Albert Kruger in a court of the Federal Republic of Germany. It also seeks to prohibit him from permitting German judges to question the witness (either directly or through himself) and from permitting distribution of copies of the transcript other than in accordance with s. 27(2) (c) of the Act.

The application was made ex parte to Gibbs J. who referred it to the Full Court. Notice of the application was then served on the Crown Solicitor of the Commonwealth and on the accused, Albert Kruger.

A number of grounds were advanced in support of the application. The main ground was that the Attorney-General's authorization of the magistrate was invalid as the offences charged against Kruger were of a political character within the meaning of s. 27 of the Act.

Section 27(1) deals with the taking of evidence in respect of a criminal matter pending in a foreign country:

(1) Where a request is made by a foreign state (whether this Act applies in relation to that foreign state by virtue of section 9 or section 10 or not) that evidence be taken in Australia for the purpose of a criminal matter pending in a court or tribunal of that foreign state other than a matter relating to an offence that is, or that is by reason of the circumstances in which it is alleged to have been committed, an offence of a political character, the Attorney-General may, by notice in writing, in accordance with Form 8 in Schedule 2, authorize a Magistrate to take the evidence.

The expression "offences of a political character" is qualified in the Act in several ways. Section 4(4) provides:

(4) For the purpose of this Act, an offence against the law of a foreign state may be regarded as being an offence of a political character notwithstanding that there are not competing political parties in that state.

(a) an offence against the law of, or of a part of, a foreign state, being an offence against the law relating to genocide; or

(b) an offence against the law of, or of a part of, a prescribed foreign state, being an offence that is constituted by the taking of the life of the head of state of that foreign state or of a member of his family, by aiding, abetting, counselling or procuring, or being an accessory before or after the fact to, the taking of the life of such a person or by attempting or conspiring to take the life of such a person,

shall not be taken to be an offence that is, or by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character.

In the affidavit supporting the application, it was claimed that:

the matter is of a political character in that the questions and the evidence taken thus far indicate that:

(a) The German proceedings appear to be a trial in relation to alleged war crimes, as it relates to the alleged killing of at least one hundred and forty seven (147) persons.

(b) That one of the questions to be determined appears to be whether the defendant Kruger in relation to the alleged killings, acted under directions from the German Occuptation Forces, or in his capacity as Chief of the Protection Police of the district surrounding the village of Choiniki, in white Russia, between 1942 and 1943.

It was claimed that the offences charged, if established, arose out of actions by Kruger in suppressing the population of a territory of the Soviet Union then (1942 and 1943) under German occupation. The applicant claimed, in particular, that the murders and rapes to which Kruger was alleged to have been a party were committed while Kruger was a member of the special police and as part of an official policy of terrorisation and intimidation to dissuade the people from rebelling or going against the orders emanating from the German Government. This gave rise to two arguments: 1. that the offences charged were political because they occurred outside the Federal Republic of Germany; 2. that they were war crimes committed under orders of superiors.

Firstly, the applicant argued that the circumstances of the offences (that is, they were charged as occurring outside the Federal Republic of Germany) made them of a political character. This argument must be rejected - that circumstance does not make an offence political, either in the generally accepted international sense or in the meaning of the Act. International conventions (such as the Geneva Convention) and Australian legislation (such as the Geneva Conventions Act 1957-1973 Cth) impose obligations for the punishment of offences committed outside the state.

Secondly, the applicant argued that the offences were of a political character because they were war crimes and, in particular, because the defendant Kruger acted under directions from the German Government. He relied upon a number of cases which described offences of a political character: In re Castioni [5] ; Reg. v Governor of Pentonville Prison; Ex parte Cheng [6] ; In re Meunier [7] and Schtraks v Government of Israel [8] . I am not satisfied that any of the tests in these cases should be adopted, particularly the test in Schtraks' Case which I do not regard as adequate. It excludes, in my opinion, some offences which are political and include some which are not.

1. [1891] 1 Q.B. 149. 2. [1973] A.C. 931. 3. [1894] 2 Q.B. 415. 4. [1964] A.C. 556.

The meaning of "offence of a political character" is not fixed; it can vary from time to time. Assassinations which once were regarded as being within the political escape clause and therefore not extraditable, are now not as likely to be (see Art. 6 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (opened for signature on 14th December 1973)). The concept of an offence of a political character or a political crime is an international one. No doubt what is regarded as an offence of a political character in Australia is affected by changing international views (not always unanimous) of what is an offence of a political character in a civilized community. For example, can the deliberate shooting of a family including four children aged from two to eleven (which is one of the charges in this case) be of a political character because the community is engaged in dissension? As Professor L. C. Green puts it: " the concept of political offences as it has developed in the practice of States and courts cannot be extended to protect a person accused of war crimes or crimes against humanity." ("Political Offences, War Crimes and Extradition", International and Comparative Law Quarterly, vol. 11, p. 354).

So far there has been no instance of an individual being allowed to plead that the crime with which he is charged is political because it was directed against individuals on the instructions of a government (see Professor Green's article, ante, at pp. 329-330). War crimes and crimes against humanity are not offences of a political character either inherently or in the extended sense of ss. 27 or 13.

The taking of evidence for the purposes of a criminal matter is not restricted to extraditable crimes. The provision for taking of evidence in s. 27 is to be sharply distinguished from the extradition provisions in the Act. Section 13(1) states:

(1) A person is not liable to be surrendered to a foreign state if the offences to which the requisition for his surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a poltical character.

There is an important difference between the descriptions of an offence of a political character in s. 27(1) and in s. 13(1). The omission from s. 27(1) of the words "or was committed" which are in s. 13(1) is deliberate (see the parallels in the Extradition (Commonwealth Countries) Act 1966-1973 ss. 10(1) and 33AB (2)). It is not open to a witness (although it is to a person sought to be extradited) to contend that an offence is of a political character by reason of the circumstances in which it was committed (as distinct from the circumstances in which it was alleged to have been committed).

The distinction which the Act draws between the three ways in which an offence is of a political character is blurred in the cases decided elsewhere, and was not adhered to in the applicant's arguments. The main arguments were, substantially, that the offences (by reason of the circumstances in which they were committed) were of a political character. This was strictly not open to the applicant. The three categories are not easily separable, but on any approach the applicant has failed to establish that the offences charged fell within the description of those excepted by s. 27(1) of the Act. The ground that the authority was invalid therefore fails.

The next ground for prohibition was that the magistrate was deprived of jurisdiction because he had indicated he would make available copies of the transcript of the witness T.'s evidence to counsel and to the German judges (as he had with earlier evidence). The contention was that s. 27(2) of the Act (which required the magistrate to send a copy to the Attorney-General) was exhaustive. There is no substance in this complaint, and it is not a ground for prohibition.

As grounds for prohibition, the other contentions were without legal merit. The Extradition (Foreign States) Regulations impugned are valid.

It is therefore not necessary to determine whether Mr. Wilson, a special magistrate of the State of South Australia, is an "officer of the Commonwealth" within the Judiciary Act (see also the Constitution, s. 75(v.)).

In this case, the offences charged are not of a political character. If they were, it would highlight the gap in the law which would deprive an accused in another country of the evidence he contends may establish his innocence because the accused has been charged with offences of a political character. International comity and considerations of human rights suggest that (subject to executive or judicial discretion) the criminal processes of other countries should be assisted, especially where evidence is sought at the instance of the accused. A person charged, even with a directly political offence such as sedition or treason, should not be prevented from access to exculpatory evidence.