Republic of South Africa v De Bruyn

REASONS FOR JUDGMENT 1 This is an application by the Republic of South Africa, as a country seeking extradition against the first respondent, Mr De Bruyn, for a review of an order made by the second respondent, a magistrate (who has very properly filed a submitting appearance), under s 19 of the Extradition Act 1988 determining that Mr De Bruyn was not eligible for surrender to the Republic and that he be released. By s 21(6)(d), in carrying out the review, I am required to "have regard only to the material that was before the magistrate". 2 In this case, the material before the magistrate was in some respects more ample than it need have been, insofar as it sought to satisfy the test of a prima facie case which must be met by some countries (see Ujiie v Republic of Singapore (1996) 66 FCR 323), but has not been required to be met by the Republic of South Africa since the coming into effect on 21 May 1997 of an amendment by Statutory Rules 1997 No 108 to the Extradition (Republic of South Africa) Regulations: Dutton v Republic of South Africa [1999] FCA 2. Nevertheless, the magistrate found the supporting documents submitted in relation to Mr De Bruyn to be inadequate for a reason I shall now explain. 3 The problem begins with s 19(2) of the Act. Paragraph (a) of that provision requires supporting documents to be produced which comply with subs (3), and, crucially for the point raised in the present case, contain (as specified by subs (3)(c)(ii)) - "a duly authenticated statement in writing setting out the conduct constituting the offence." The conduct so stated must then be considered by the magistrate pursuant to s 19(2)(c), which makes it a condition of eligibility for surrender that: "(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". It will be observed that this test is to be applied "at the time at which the extradition request … was received", not at the time of the commission of the alleged offence, the traditional time at which to test for double criminality: Regina v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 at 838-839, per Lord Browne-Wilkinson. 4 But the matter which is important for present purposes is that, in interpreting s 19(2)(c), the magistrate must have regard to s 10(2) and (3): "(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. (3) In determining for the purposes of … paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect: (a) where the conduct or equivalent conduct consists of 2 or more acts or omissions -regard may be had to all or to only one or some of those acts or omissions; (b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded." The magistrate must look too to the definition of "extradition offence" when that expression is used in relation to a part of Australia. In s 5, "extradition offence" is relevantly defined as meaning: "(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". 5 In this case, the magistrate's consideration of s 19(2)(c) focussed on ss 178BA and 178BB of the Crimes Act 1900 (NSW). Each of these sections creates an offence punishable by imprisonment for a period of up to five years. His Worship, however, found he was not satisfied of the species of double criminality required by s 19(2)(c) because each section involves an element of dishonesty (s 178BA begins: "Whosoever by any deception dishonestly obtains for himself … any money or valuable thing or any financial advantage of any kind whatsoever …"; s 178BB begins: "Whosoever, with intent to obtain … any money or valuable thing or any financial advantage of any kind whatsoever, makes … or concurs in making … any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular …"), and the "conduct constituting the offence" alleged against Mr De Bruyn "does not indicate directly any deception, nor any indication of dishonesty on the part of the respondent. … [T]he statements of conduct do not tie the respondent to any such activity directly." 6 It is necessary to turn to the statement setting out the conduct constituting the offence. This is in the form of an information alleging under South African law the crime of fraud, or alternatively, theft, and it appears to be a copy of an information filed in the registry of the Regional Court for the Division of Southern Transvaal held at Johannesburg. The document recites that Mr De Bruyn conducted a jewellery business in which he was authorised to purchase gold and "held and administered a cheque account at First National Bank Carlton Centre, with account number 2000025054, for which he alone had signing powers". It then continues: "AND WHEREAS 4 On 8 October 1992 a fraudulent Inter Branch Reconciliation transaction was raised and fraudulently placed into the banking processing system of First National Bank. Although the exact manner in which this transaction was raised is unknown to the State, it was however done with the knowledge of the accused. Pursuant to this transaction the said bank account of the accused was credited in the amount of R1 200 000,00 and the suspense 'call' account of First National Bank was debited in the same amount. 5 On 9 October 1992 the accused requested First National Bank - Carlton Centre to guarantee two cheques (cheques numbered 46 and 48 in the amounts of R1 190 000,00 and R283 000,00 respectively, both made payable to Rand Refinery LTD) drawn on the account of the accused against funds including the fraudulent credit of R1 200 000,00 in the accused's account. The Bank guaranteed payment on the two cheques. 6 On the same day the accused purchased 47.1 kilograms of gold from Rand Refinery LTD to the value of R1 678 954,00 and presented inter alia the said two bank guaranteed cheques in payment thereof. 7 Upon discovery that the said Inter Branch Reconciliation transaction was fraudulent, it was reversed. Rand Refinery Ltd was, however duly paid out, as payment of the two cheques was guaranteed and First National Bank had to bear the loss of an amount in excess of R1 200 000,00. NOW THEREFORE the accused is guilty of fraud alternatively theft. FRAUD In that upon or about 8 and 9 October 1992 and at or near Johannesburg in the Regional Division of Southern Transvaal, the accused did unlawfully, falsely and with the intent to defraud, misrepresent to First National Bank and/or the employees of the said Bank that: 1 the said Inter Branch Reconciliation transaction was lawful and properly authorised by First National Bank; and/or 2 the transfer of the R1 200 000,00 from the suspense 'call' account of First National Bank to the bank account of the accused was lawful and proper: and/or 3 the said bank account of the accused was lawfully credited in the amount of R1 200 000,00; and/or 4 the R1 200 000,00 credited to the bank account of the accused could lawfully be utilised by the accused for his own private use. AND THUS the accused did by means of one or more of the aforesaid misrepresentations, to the prejudice, actual or potential, of First National Bank, induce First National Bank to believe that 1 the said Inter Branch Reconciliation transaction was lawful and properly authorised by First National Bank; and/or 2 the transfer of the R1 200 000,00 form [sic] the suspense 'call' account of First National Bank to the bank account of the accused was lawful and proper; and/or 3 the said bank account of the accused was lawfully credited in the amount of R1 200 000,00; and/or 4 the R1 200 000,00 credited to the bank account of the accused could lawfully be utilised by the accused for his own private use. WHEREAS in truth and in fact the accused when he so misrepresented well knew that 1 the said Inter Branch Reconciliation transaction was unlawful and was in fact not authorised by First National Bank; and/or 2 the transfer of the R1 200 000,00 from the suspense 'call' account of First National Bank to the bank account of the accused was unlawful and improper; and/or 3 the said bank account of the accused was not lawfully credited in the amount of R1 200 000,00; and/or 4 the R1 200 000,00 credited to the bank account of the accused could not lawfully be utilised by the accused for his own private use. NOW, THEREFORE, the accused is guilty of the crime of fraud. ALTERNATIVELY: THEFT In that upon or about 8 and 9 October 1992 and at or near Johannesburg in the Regional Division of Southern Transvaal the accused did unlawfully and intentionally steal R1 200 000,00 the property or in lawful possession of First National Bank." 7 As it was held in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 288-289 that a warrant in the German language "might also qualify as a statement in writing setting out the conduct constituting the offence", I see no difficulty in treating this information as such a statement. Senior counsel for Mr De Bruyn relied on the absence of a title to distinguish the document as the requisite "Statement of Conduct", although, if a title is necessary, the statutory description is not confined to those words. But arguments of this kind did not prevail in Zoeller, and they should not prevail here. The question therefore is whether the statement of "the conduct constituting the offence" contained in the information satisfied s 19(2)(c) by revealing conduct that would, at the time of the receipt of the extradition request, have constituted an extradition offence in relation to New South Wales. The magistrate held it did not on the ground that each of the relevant New South Wales offences involved dishonesty, or wrongful intent with guilty knowledge, which he did not think the statement of Mr De Bruyn's conduct showed. 8 If this question is to be resolved by considering whether the statement of conduct alleges a mental element sufficient to make out an extradition offence in New South Wales, it seems to me the magistrate was in error. For the statement does assert the effecting of "a fraudulent Inter Branch Reconciliation transaction" as "done with the knowledge of the accused". It also alleges that the fraudulent misrepresentations pleaded in it were made by "the accused … falsely and with the intent to defraud". Further, it alleges of each of these misrepresentations that when "the accused … so misrepresented [he] well knew" the contrary of the misrepresentations. Finally, it alleges, as an alternative count, that the accused "did unlawfully and intentionally steal R$1,200,000.00 the property or in lawful possession of First National Bank." However, the magistrate appears to have regarded these allegations as insufficient. 9 The submission put for Mr De Bruyn on this issue concentrated upon the expansion of s 19(3)(c)(ii) contained in s 10(2). Reading s 10(2) into s 19(3)(c)(ii), counsel argued that the statement the Act requires to be produced to the magistrate is a statement of "the acts or omissions, or both, by virtue of which the offence … is alleged to have been committed"; and that the requisite state of mind or mens rea is neither an act nor an omission. This argument is perfectly logical, but the difficulty is that its logic is simply not that of the Act. Section 19(2)(c) plainly assumes (on the same basis, that is to say, on the basis that s 10(2) is read into the paragraph where it refers to "the conduct of the person constituting the offence") that the requisite mens rea will be able to be found. Otherwise, the statement referred to in s 19(3)(c)(ii) would never enable extradition to be granted in any case of an offence a proper statement of which requires the allegation of a guilty state of mind. Indeed, s 10(2) itself assumes that all offences are committed "by virtue of" acts or omissions or acts and omissions. It may be that the draftsman saw the intent as merely part of the description of the act or omission. Viewing the matter in this way, it might be said that to loose an arrow at a venture is a different act from sending it with deliberate aim at a particular target; the aim gives a special quality to the act. Alternatively, it may be that the use of the expression "acts or omissions, or both, by virtue of which the offence … is alleged to have been committed" simply reveals a failure of precise analysis; but even on that view, the intended meaning is clear. In the context, s 10(2), s 16(2)(a)(ii) (not presently in issue), s 19(2)(c) and s 19(3)(c)(ii) are all concerned with the elements of the offence, which must include any mental element. 10 Section 17(6) of the Extradition (Foreign States) Act 1966, the previous statute on this subject, contained a provision which referred to "the acts or omissions in respect of which the surrender of the person is requested". In Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519 Gummow J (with whom Sheppard J agreed, and I relevantly agreed) said: "It should also be borne in mind that in such a statute as the Extradition Act [his Honour was referring to the previous statute which I have mentioned], the phrase 'the acts or omissions' refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions … ." Among the authorities cited for that proposition was Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 18-20, per Deane J. That case involved the very serious United States crime known as continuing criminal enterprise. Of this offence, the majority judgment (Gibbs CJ, Wilson and Dawson JJ) said (at 8): "One of the alleged acts which with other acts constituted the offence in the circumstances of the present cases was that the appellant in each case knowingly, intentionally and unlawfully possessed marijuana or hashish with intent to distribute it; another of such alleged acts was that each appellant knowingly, intentionally and unlawfully caused marijuana or hashish to be imported into the United States. Clearly, to cause something to be imported involves the commission of an act. Although in some cases it will be a question whether to be in possession of something is a state of things rather than an act, the Full Federal Court held that proof that a person knowingly and intentionally possessed a substance necessarily involves proof that the person actively maintained possession and that this indicates an act rather than a mere state of possession." This reasoning associates the relevant intention with the act so as to allow the application of the phrase "act or omission constituting the offence". In Zoeller v Federal Republic of Germany at 294, the passage I have cited from Wiest was applied by the Full Court (Lockhart, Gummow and Hill JJ) to the present statute. The Court distinguished (at 297) the decision of the House of Lords in Government of Canada v Aronson [1990] 1 AC 579, in so far as it would have supported the proposition that the magistrate, and the court on review, when examining the statement under s 19(3)(c)(ii), are confined to a consideration of "a mere restatement of the charge in respect of which extradition is sought". But the court referred (at 294-296) to a number of passages in the House of Lords decision which throw light on the expression I am considering, "acts or omissions … by virtue of which the offence … is alleged to have been committed". In addition to those passages, attention should be drawn to the statement of Lord Lowry at 610: "While the singular includes the plural, in speaking of 'the act or omission' one is not describing a course of conduct; one is speaking of the essential ingredients of an offence." Finally, in this review of authority bearing on the construction question, I refer to the statement of Woodhouse J (as he then was) in Kilbride v Lake [1962] NZLR 590 at 593: "[I]n my opinion, it is a cardinal principle that, altogether apart from the mental element of intention or knowledge of the circumstances, a person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him. If this condition is absent, any act or omission must be involuntary, or unconscious, or unrelated to the forbidden event in any causal sense regarded by the law as involving responsibility." This underlines the conclusion that when the legislature spoke of acts or omissions by virtue of which an offence was alleged to have been committed, it must have taken the necessary mental states for granted. There would have been no sense in it doing otherwise. 11 It follows that the course adopted by the Republic of South Africa, in this case, of including, in the statement to be relied upon as satisfying s 19(3)(c)(ii), the allegations of knowledge and intent which I have noted, was a course that was open to it. Despite the earnest submissions of counsel for the respondent, those allegations do, in my opinion, show the extradition offences contended for by the Republic. In addition, I accept the submission that the offence of false pretences under s 179 of the Crimes Act 1900 (NSW) is a relevant offence the elements of which are also shown by the statement. 12 The evidence revealed a difference between the law applicable in New South Wales and the law of South Africa in respect of the onus of proof. In South Africa, once certain objective issues have been proved, the onus of proof in respect of guilty intent will lie upon the accused. But this is not the kind of matter that is capable of denying the form of double criminality adopted by the Extradition Act. The concern of the Act is with the elements of the offence, not with the precise mode of proof of those elements: cf Holt v Hogan (No 2) (1993) 46 FCR 145. 13 I should make it clear I have not overlooked the magistrate's comments on the weight of the material. He thought there was a logical problem about the allegation: "Although the exact manner in which this transaction was raised is unknown to the State, it was however done with the knowledge of the accused." I see no logical problem. There is nothing peculiar in the prosecution not knowing exactly how something has been done, yet alleging that the accused did know, or indeed, that the accused did it. Then, the magistrate described the case as involving "only circumstantial indications of fraud based on the timing of the various transactions. There is not stated to be any evidence whatsoever of the state of mind of the respondent at the relevant time. The circumstances, therefore, as stated do not lead inexorably to the view that there was any criminal conduct on the part of the respondent. Certainly the accused may have had knowledge of the deposit but there is nothing in the statements to say that he had knowledge that the deposit was fraudulently deposited." His Worship also remarked: "As I have said, the statements of conduct do not tie the respondent to any such activity directly." But it seems to me these comments are both unjustified in themselves, and also miss the point. They are unjustified in themselves because circumstantial evidence is not, simply because it is circumstantial, to be dismissed as inconclusive. Like any other evidence, it must be assessed, and it may be found compelling. In the present case, the Republic relies on evidence of the fraudulent credit to the account of Mr De Bruyn of a very large sum of money, upon which Mr De Bruyn immediately (that is, the next day) drew to the full amount. These bare circumstances inevitably call to mind the old tag cui bono? They also plainly reveal that Mr De Bruyn must have known of the existence of the credit, which was in fact fraudulent, virtually immediately upon its appearing in his account. In any case, as I have said, reliance on the supposed inadequacy of this circumstantial evidence misses the point; for the amended regulations do not require the Republic of South Africa to make out a prima facie case, but simply to provide the "duly authenticated statement in writing setting out the conduct constituting the offence" referred to in s 19(3)(c)(ii). The fact that more was provided is irrelevant; if the statute had permitted it to be relied on for the purpose, a question I do not decide, the additional material would not have exonerated Mr De Bruyn. 14 At the hearing before me, a number of issues were raised on behalf of Mr De Bruyn which had been determined against him by the magistrate. One of these arose under the definition of "extradition offence", as it applies to a foreign country. By s 5 it is provided: "'Extradition offence' means: (a) in relation to a country other than Australia - an offence against a law of the country: (i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or (ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia". The argument was that this definition does not fit the South African crimes for which extradition is sought, because the relevant provision of s 276 of the South African Criminal Procedure Act 1977 refers to a sentence of "imprisonment" without specifying a maximum period. Although the evidence shows that substantial periods of imprisonment (well in excess of twelve months) are in practice imposed for these offences in South Africa, and "it is highly unlikely that a sentence of less than twelve (12) months imprisonment will be imposed for offences as serious as those … in the instant case", it is said there is no "maximum penalty … for a period of not less than 12 months", within the definition in s 5. On that basis, Mr De Bruyn claims the crimes for which his extradition is sought do not come under the Extradition Act. 15 It was frankly conceded that, if this argument is right, there is a wide void in the application of the Act; for the same position obtains with other provisions of South African criminal law. But I do not think the argument is right. The definition of "extradition offence", in relation to a country other than Australia, appears to have been drawn with an eye to being comprehensive; offences are divided into those which carry a penalty, and those which do not. If an offence carries a penalty, the question is whether the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than twelve months. In that context, "the maximum penalty" should be understood to refer to the maximum the foreign court would be permitted to impose. The Act is not concerned with whether an alien system of law, which would be expected to be structured differently from ours, follows our form of words in prescribing a maximum penalty, but with the substance of the matter. Cf Sun World International Inc v Registrar, Plant Breeder's Rights (1998) 158 ALR 98 at 99-100; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 158 ALR 1 at 7. The evidence shows that, in substance, the maximum penalty for each of the offences in question, by South African law, is imprisonment for a period of not less than twelve months. 16 Counsel also challenged the authentication of the supporting documents under s 19(3)(a) and (c). The magistrate's reasons contain a full and careful statement of what appeared on the face of the documents by way of authentication, and I shall not repeat all the details. I shall content myself with referring to a few matters that were the subject of arguments put to me. Before going further, I should draw attention to a gap in the legislation, although, as will appear, it does not affect the result of this case. Authentication is a very technical matter, and s 19(4) provides that, in a case where the magistrate considers there are minor deficiencies in the documents, he or she "shall adjourn the proceedings" to allow the deficiencies to be remedied. However, if, as was the case here, the magistrate sees nothing wrong with the documents, but, on review, the Court does, there is no corresponding provision enabling the Court to overcome a mere minor error. The Court is bound by s 21(6)(d) to "have regard only to the material that was before the magistrate". And it is bound to take a "technical approach": Prabowo v Republic of Indonesia (1995) 61 FCR 258 at 270-271. Just how strict that approach should be with respect to authentication is emphasized by s 19(7A), inserted by the Extradition Amendment Act 1990. The anomalous disconformity between the power conferred on the magistrate, indeed the duty imposed on the magistrate, to relieve against minor deficiencies, and the straitjacket confining review, may be thought to merit an amendment of s 21(6)(d) to allow for a discretion in a case where the magistrate could have utilised s 19(4). 17 It is necessary to return to s 19. The meaning of the expression "duly authenticated", as used in that section, is to be found in subs (7): "(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country." I am satisfied that the supporting documents fully comply with these requirements. Counsel contended that the copies of the documents served on Mr De Bruyn under s 16(3) did not bear the relevant certificates and seals, but this could not affect the compliance with s 19 which was shown by production of the originals to the magistrate under s 19(2)(a). 18 Before the magistrate, counsel took a point concerning the validity of the notice under s 16 by virtue of which his Worship was called upon to deal with the matter. The notice was issued, not by the Attorney-General, but by another minister acting for and on behalf of the Attorney-General. The argument, which sought to distinguish GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309, asserted that this invalidated the notice and deprived the magistrate of jurisdiction. But the contention was not pursued upon the review. However, before I had delivered my decision, Foster v Attorney-General (1998) 158 ALR 394 was handed down, in which a warrant similarly issued was held to be bad. I therefore put the matter back into the list for further consideration on 2 February 1999. But, in the meantime, the Acts Interpretation Amendment Act 1998 was passed (and assented to on 21 December 1998), by which a minister administering an Act was empowered to authorise another minister to act on his or her behalf, and past authorisations were retrospectively validated. Counsel accepted that the amending legislation deprived Mr De Bruyn of the benefit of the decision referred to. That benefit would have been short-lived, in any case, for the decision was overturned on appeal: Attorney-General v Foster (1999) 161 ALR 232. 19 For these reasons, the Republic of South Africa must succeed upon this review. That makes it necessary, by virtue of s 21(6)(g), for me, in determining that Mr de Bruyn is eligible for surrender, within the meaning of s 19(2), as I do, to specify, and I do, that he is so eligible in relation to each of the extradition offences alleged, which are referred to in the Notice under s 16, that is to say, the offences of fraud and theft. Pursuant to s 21(2), I quash the order of the magistrate and I direct a magistrate to order, by warrant in the statutory form, that Mr De Bruyn be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5). The argument of this review was, in part, brought about, and having been brought about, was complicated, by matters for which the respondent was not responsible, including the course taken by the Republic of South Africa of relying on supporting documents not drawn with a clear eye on the current requirements for extradition from Australia to South Africa. Although those requirements have, in the event, been satisfied, I make, in all the circumstances, no order as to costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.