Schlieske v Federal Republic of Germany

Federal Court of Australia|1988-06-20|Before: Beaumont J, Foster JJ, Fox J

The cross-appeal is allowed so far as concerns the charges lettered (a) and (b) under the heading "Relating to 4" in the warrant of arrest issued by the third respondent, and is otherwise dismissed.

The declaration made by Beaumont J. is set aside. In lieu, -

It is declared that the warrants of committal are invalid to the extent that they are based on 22 of the 24 counts referred to in recital (a)(iii) of the warrants of committal being respectively the charges (c) to (x) inclusive under the heading "Relating to 4" in the warrant of arrest issued by the third respondent.

The appellants pay three-quarters of the costs of the third respondent of this appeal.

There be no order for costs of the first and second respondents of this appeal.

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

NEW SOUTH WALES DISTRICT REGISTRY) No. G782 of 1987

ON APPEAL from a single judge of the Federal Court of Australia

THE HONOURABLE LIONEL BOWEN, HER MAJESTY'S ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent AND: THE FEDERAL REPUBLIC OF GERMANY

These are appeals from the decision of a judge of the

magistrate respecting the extradition of the two appellants under

the Extradition (Foreign States) Act 1966 ("the Act"). The

application for review relies on s.18 of the Act, and also upon

the Administrative Decisions (Judicial Review) Act 1977, but it

is agreed that only the former needs to be looked at. It relates to "the validity of the decision". Sub-section (3) casts the onus of satisfying the Court as to the validity of the magistrate's decision on the applicant for extradition. The learned judge upheld the extradition application in relation to three charges set out in the warrant under paragraphs numbered (1) and (2), but refused to do so in relation to a third group of charges (the charge numbered 3 was not pursued and this last-mentioned group appears under the number 4 in the papers). The third respondent (the other respondents did not take any action or appear before us) has cross-appealed in relation to

On 16 April 1987 warrants were issued by a magistrate for the apprehension of the appellants, as alleged fugitives from the Federal Republic of Germany (see s.16(1)(b) of the Act). On 22 May 1987 notices were given by the Attorney-General, pursuant to the requisition of the Federal Republic of Germany, under s.15(1)(b) of the Act. Proceedings in the Local Court under s.17 were subsequently commenced. Section 17(6) is as follows:

"s.17(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and - {a) there is produced to the Magistrate -

(i) ain the case of a person who is accused of an extradition crime -

(A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant;

(B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person is requested and the penalty applicable to each such offence; and

(C) a _duly authenticated statement in writing setting out a the acts or omissions in respect of which the surrender of the person is requested; or

(ii) in the case of a person who is alleged to have been convicted of an extradition crime - such duly authenticated documents as provide evidence of the conviction; of the sentence imposed on the person or of the intention to impose a sentence on the person and of the extent to which a sentence imposed on the person has not been carried out,

and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and

the Magistrate is satisfied after taking into account any evidence properly adduced By the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender,

by warrant in accordance with the form prescribed for the purposes of this

sub-section, commit the person to prison to await the warrant of the Attorney-Genera or the surrender of the person; or

(i) who has been charged with an offence that is alleged to have been committed in Australia, being a charge that has not

been disposed of; or (ii) who has been convicted in Australia of an offence and is not ain custody in respect of that offence, on the person's entering into such recognizances as the Magistrate thinks appropriate, grant bail to the person pending the signing of a warrant by the Attorney-General for the surrender of the person, but otherwise the Magistrate shall order that the person be released." (I have underlined parts of the sub-section more particularly

Section 12 is probably the central section. It deals with the liability of a "fugitive" to be surrendered to a foreign state. The term "fugitive" is defined in s.4(1). Relevantly, it means a person accused of an extradition crime. There is no extradition treaty with the Federal Republic of Germany, but there are regulations which apply the Act, subject to "limitations, conditions and exceptions or qualifications"

(Extradition (Federal Republic of Germany) Regulations 1985, as

amended in 1986). These take effect under s.11 of the Act (see also s.10(4)):

"11.(1) Subject to sub-section (2), where the regulations for the time being in force provide that this Act applies in relation to a foreign state, this Act applies in relation to that state.

(2) Where the regulations for the time being 1n force provide that this Act applies in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications."

In regulation 2 of the Extradition (Federal Republic of Germany)

Regulations (Amendment) "relevant act or omission" is defined:

"\2, In these Regulations, unless the contrary intention appears -

'relevant act or omission', in relation to an offence to which a requisition for the surrender of a person relates, means an act or omission by the person -

(a) that is, in or in connection with the requisition, alleged to have taken place; or

(b) of which evidence is produced in connection with the requisition;

'requesting state' means the Federal Republic of German; 'the Act' means the Extradition (Foreign States) Act 1966.'"

The definition applies for the purposes of the regulations. These contain, in regulation 4, a series of limitations which are not applicable (the amendments made by Statutory Rules No. 294 of 1986 did not apply at the time the facts occurred to which Schlieske v. Federal Republic of Germany (1987) 71 ALR 215 related). The definition of relevant act or omission is in substance found also in the Act (s.4(1B), which I will set out later. The result of the scheme abovementioned is that there are differences in the extradition laws applicable to some foreign states as compared with others. In particular, there are a number of significant differences between the case of the Federal Republic of Germany and that of the United States of

America (with which there is a treaty; see s.10(1)).

The appeal is based on an alleged absence of double

criminality, it being submitted that there is no New South Wales

legislation which would make the conduct set out criminal to the requisite degree (scil., involving imprisonment for not less than twelve months, s.4(1A)(b)). No reliance has been placed on any Commonwealth legislation. It is helpful to set out the whole of

"(1A) An offence against the law, or of a part of, a foreign state (including an offence against such a law relating to taxation, custom duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if, but only if -

(a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and

taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that part of Australia the maximum penalty for which is death or imprisonment for not less than 12 months.

(1B) The reference in paragraph (1A)(b) to a relevant act or omission by a person is a reference to -

(i) which is, in or in connection with the relevant requsition, alleged to have

taken place; or (ii) of which evidence is produced in connection with the relevant

requisition; or (b) any act or omission that is equivalent to an act or omission referred to in paragraph (a). Matters of significance are that it is sufficient that the act or omission relied upon be "alleged", and that a case for

extradition may arise if the local act or omission was

"eguivalent" to the act or omission alleged (see Schlieske at

There was with the requisition one warrant of arrest relating to both of the alleged fugitives. There is evidence that this course was permissible under the law of the Federal Republic of Germany. In view of the argument, it is necessary to set out in full the translation of the warrant (which came with

the requisition, and is not challenged in any way):

The District Court 5400 Koblenz, January 28, 1987 File Number: 30 GS II 2134/86

The foreign-language correspondent Paula Bongardt, nee Mateescu, born on July 19, 1953 in Bukarest/Romania, last known residence: 5463 Unkel, Eschenbrender Str. 2-4, actually with unknown whereabouts, German citizen, Married, and

the bank employee Harald Linhart, born on March 10, 1958 in Schweinfurt, last known residence: 5463 Unkel, Eschenbrender Str. 2-4, actually with unknown whereabouts, German citizen, unmarried,

They are charged of having committed during the period of August 1983 through October 1985 in Unkel and at other places 28 independant, conjointly committed offences and, in ten cases, continuation of offences. They are charged in particular

of having made knowingly false statements' as shareholders and Directors of a private company limited on the paying up of shares in order to have the company officially registered;

of having kept the legally required accounts during the impending insolvency and after insolvency in such a way that it was extremely difficult to get a picture of the financial situation,

not having produced the asset and liability statement within the period required by law;

(3) of not having filed a petition in bankruptcy or started composition proceedings due to insolvency although section 64 paragraph 1 of the Private Company Limited Act requires the Managing Director of a company to do so;

of having inflicted damage to another party's property by fraudulent misrepresentation causing factual errors with the intention to obtain unlawful enrichement for themselves or a third party;

Both persons charged where shareholders as well as de facto Directors and most of the time also official Directors of the Century-Consumer- - Products Video Handelsgesellschaft mit beschrankter Haftung (Century - -Consumer- - Products Video-Trading Company Limited) incorporated on July 22, 1983 with headquarters in Unkel and the Century Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung incorporated on January 30, 1984 with registered headquarters in Bad Honnef. Allegedly, it was the object of both companies to set up and manage video shops in supermarkets and department stores.

In the first place the persons charged really wanted to enrich themselves on account of others under the guise of these companies.

Both companies had only one business establishment in Unkel. There was no business nor financial separation. On the contrary, the persons charged acted at their own discretion on account of one or the other company. When Century- - Consumer-Products Video-Handelsgesellschaft mit beschrankter. Haftung (Unkel) was incorporated, there was no real shareholders' equity available to speak of. When the Century-Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung (Bad Honnef) was incorporated, only their co-partner Dieter Braun had paid up his original capital share amounting to 100,000.- Deutschmarks. This amount however was used up within the first weeks. No additional capital was transfered to the companies. At the latest by mid March 1984 both companies were insolvent. Payments were stopped.

In order to escape the more and more pressing creditors the persons charged officially moved headquarters of both companies to Sinzheim on May 22, 1984. For the same reason they renamed the Century-Consumer-Products Video-Handels-gesellschaft mit beschrankter Haftung (Unkel) on June 18, 1986 into Pan Videotheken-Betriebsgesellschaft

mit beschrankter Haftung (Pan Video-Shop Operating Company Limited) and the Century-Consumer-Products Video-Handels- - gesellschaft mit beschrankter Haftung (Bad Honnef) into New Century Video-Handelsgeselischaft mit beschrankter Haftung (New Century Video Trading Company Limited) and officiaily moved the headquarters of both companies to Dortmund.

With a motion dated January 30, 1984 the two persons charged and the witness Dieter Braun applied for entry of the Century-Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung (Bad Honnef) into the commercial register of the District Court in Koenigswinter. Though only the witness Braun haid (sic) paid up his original capital share of 100,000. - Deutschmarks, the persons charged affirmed untruthfully in the application that they too had paid up their original capital shares of DM 100,000. - each and that these amounts are definitively at the free disposal of the company management. Even later on the persons charged didn't pay up their shares nor parts of them.

There was no proper bookkeeping neither for Century-Consumer-Products Video Handelsgesellschaft mit beschrankter Haftung (Unkel) nor for Century-Consumer - -Products Video-Handelsgesellschaft mit beschrankter Haftung (Bad Honnef). Just the incoming

invoices, vouchers and other documents of both companies were put together into files; therefore it was extremely difficult and required much time and effort to get a picture of the financial status of each company at the time of insolvency in March 1984. It's true that the persons charged had the accounts up to the middle of 1984 worked up by the witness Lanzenberger in July 1984, but this did not produce a true picture of the financial status because not all accounts payable of the first half of 1984 had been submitted to the witness Lanzenberger.

The persons charged had not produced any balance sheets for the fiscal | years 1984 and 1985 neither for Century - Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung (Unkel) nor for Century-Consumer-products Video-Handels-gesellschaft mit beschrankter Haftung (Bad Honnef).

Although both Century~Consumer-Products Video-Handelsgeselischaft mit beschrankter Haftung (Bad Honnef ) as well as Century-Consumer-Products

Video-Handelsgesellschaft mit beschrankter Haftung (Unkel) had been insolvent at the latest by the middle of March 1984, the persons charged did not file bankruptcy petitions nor petitions to institute composition proceedings.

In order to obtain fresh money, the persons charged persuaded the witness Dieter Braun by the end of 1983 to become a co-partner with a capital share of 100,000, - Deutschmarks and also a Director of the Century - Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung (Bad Honnef) which was to be newly incorporated. In this connection they falsely pretended to the witness Braun already having paid up themselves original capital shares in the amount of 100,000.- Deutschmarks each and having bought with it the major part of the actually available video-films of the company. In fact they had not paid up any capital shares but only leased those films. Because of this fraudulent misrepresentation the witness Braun was of the opinion to become a partner in a sound company and consequently paid the amount of 100,000. Deutschmarks on December 22, 1983 into the company account mentioned to hin.

He did not get any money back of his paid up capital share.

In October 1983 the witness Rottmann suggested to the witness Roehr on behalf of the persons charged that he should set up the video-shop "Django" in the Kronecenter in Schweinfurt as licensee under a franchise agreement withCentury-Consumer-ProductsVideo-Handelsgesellschaft mit beschrankter Haftung. As licence fee he should be paying a lump sum of 28,500.- Deutschmarks' to Century-Consumer-Products. In order to get the money the persons charged made the witness Roehr believe that Century-Consumer-Products would provide for regular exchange of the video-cassettes. The persons charged knew that Century-Consumer-Products was financially not in a position to do sO. The fraudulent misrepresentation regarding a regular exchange of cassettes caused the witnsess Roehr on October 20, 1983 to sign such an agreement with Century- - Consumer-Products and to pay a licence fee of 28,500.Deutschmarks. The Promised exchange of cassettes did not happen. The witness Roehr had to buy cassettes on his own expense to offer his customers a reasonably attractive programme. He did not get any money back of the paid licence fee.

Furthermore the persons charged ordered and obtained goods between October 1983 and October 1985 by fraudulently pretending to be solvent and willing to pay; they also entered into other financial obligations. In this connection they acted mostly on behalf of Century-Consumer-Products. The agreed remuneration was only paid in part or not at all, as was intended right from the beginning. The goods obtained were kept. Such faudulent acts were committed in the following individual cases:

Injured party: Storebest -. Shop Equipment Private Company Limited in Lubeck Kind and object of the transaction: Purchase of

equipment on behalf of Century-Consumer-Products Company Damage: 12,657,41 Deutschmarks

Time of the offence: November 24 and 25, 1983 and January 12, 1984

Injured party: VMP-Video-Medien-Pool, Private Company Limited in Munich.

Kind and object of the transaction: Lease and purchase of video cassettes on behalf of Century-Consumer-Products Video-Handelsgeselischaft mit beschrankter Haftung (Unkel)

Injured party: EZA Einkaufszentrum fur Alle and Company in Stuttgart

Kind and object of the transaction: Lease of business premises on behalf of the Century-Consumer Products Video-Handelsgesellschaft mit beschrankter Haftung Damage: 26,747,20 Deutschmarks

Injured party: VFL Video-Film-Leasing Company Limited in Francfort

Kind and object of the transaction: Lease of video cassettes on behalf of Century-Consumer-Products Company Damage: 290,440.80 Deutschmarks

Time of the offence: December 30, 1983, January 19, 1984 and January 25, 1984 Injured party: Jevel Company Limited in Cologne

Kind and object of the transaction: Purchase of equipment on behalf of Century-Consumer-Products Company.

Time of the offence: end of December 1983 Injured. party: Hados Moebelfabrik Dolle Gesellschaft

mit beschrankter Haftung and Company Kommanditgesellschaft in Bruchsal Kind and object of the transaction: Purchase of

equipment on behalf of Century-Consumer- - Products Company Damage: 33,102.17 Deutschmarks

Kind and object of the transaction: Leasing of video cassettes on behalf of Century - Consumer-Products Company Damage: 11,527.11 Deutschmarks

Injured party: Doktor Weber and Partner Leasing Company Limited in Mannheim

private car Jaguar XJS on behalf of Century-Consumer-Products Company Damage: 43,454.40 Deutschmarks

Time of the offence: Between December 1983 and February Injured party: Horten Corporation in Dusseldorf

Kind and object of the transaction: Participation in combined advertisements on behalf of Century-Consumer-Products Company

Kind and object of the transaction: Lease of video cassettes on behalf of Century - Consumer-Products Company Damage: 43,229.17 Deutschmarks

Time of the offence: Between February and June 1984 Injured party: Car dealer vollmar - Company Limited in Unkel

Kind and object of the transaction: Purchase of fuel and ordering car repair work on behalf of Century-Consumer- - Products Company

Injured party: Direkt Marketing Bertelsmann Company Limited in Gutersloh

Kind and object of the transaction: Use of marketing services on behalf of Century-Consumer- - Products Company Damage: 18,767.29 Deutschmarks

Kind and object of the transaction: Lease of video cassettes on behalf of Century-Consumer-Products Company Damage: 29,860.70 Deutschmarks

Kind and object of the transaction: Lease of video cassettes on behalf of Century-Consumer- - Products Company Damage: 62,616.40 Deutschmarks

Injured party: VZ - Videozubehor - Trading Company Limited Gladbeck

Kind and object of the transaction: Purchase of video covers on behalf of Century-Consumer-Products Company Damage: 11,900. -- Deutschmarks

Time of the offence: March 26 and April 16, 1984 Injured party: Gerhard Hombucher in Gelsenkirchen-Horst Kind and object of the transaction: Lease of video cassettes on behalf of Century-Consumer-Products Company Damage: 14,845.53 Deutschmarks

Injured party: Weekly newspaper "Jede Woche" in Rottweil Kind and object of the transaction: Ordering the

publication of an advertisement on behalf of Century - Consumer-Products Company Damage: 693.57 Deutschmarks

t. Time of the offence: May 10, 1984 and May 29, 1984 Injured party: Schaefer-Schopp Company Limited in Betzdorf Kind and object of the transaction: Purchase of equipment on behalf of Century-Consumer-Products Video-Handelsgesellschaft mit beschrankter Haftung Damage: 3,801.67 Deutschmarks

u. Time of the offence: May 1984 Injured party: Samsung - Company Limited in Francfort Kind and object of the transaction: Purchase of video cassettes on behalf of Century-Consumer-Products Company Damage: 13,987.80 Deutschmarks

Vv. Time of the offence: Between May and June 1984 Injured Party: Elke Odenthal in Remagen Kind and object of the transaction: Obtainment of services on behalf of Century-Consumer-Products Company by false pretences Damage: 4,000.- Deutschmarks

w. Time of the offence: 15 January 1985 Injured party: NT Menniken Company Limited in Bonn Kind and object of the transaction: Lease of a restaurant Damage: 16,416. - Deutschmarks

x. Time of the offence: October 9, 1985 and October 14,Injured party: Hotel Holiday Inn in Munich Kind and object of the transaction: Renting hotel rooms on behalf of Century-Consumer-Products Company Damage: 5,506.70 Deutschmarks

The fraudulent acts of the persons charged have led to damages in the total amount of 1,786,303.60 Deutschmarks.

These acts are liable to prosecution according to sections 64, paragraph 1, 82 paragraph 1 number 1, 84 paragraph 1 number 2 of the Private Company Limited Act and sections 263 paragraph 1, 283 paragraph 1 number 5 and 7b, 25 paragraph 2, 52 and 53 of the Criminal Code.

They are strongly suspected of having committed these acts based on witness statements and the total result of the investigations.

The reason for arrest is based on section 112 paragraph 2 number 1 German Code of Criminal Procedure.

The persons charged are still at large. There are no indications of their actual whereabouts. The order for pretrial confinement 1s not unreasonable in light of the actual facts and circumstances, because the persons charged have to expect a severe jail sentence.

Herewith I certify that the provisions of the German Criminal Code (GCC) of May 15, 1871 in the amendment of January 2, 1975 (Federal Law Gazette part I page 1) mentioned in the preceding warrant of arrest of the District Court Koblenz have the following wording:

Everyone who aims at obtaining unlawful enrichment for himself or a third party and thus inflicts damage to another persons property by causing or maintaining an error due to fraudulent statements, misrepresentation or concealment of facts will be imprisoned up to five years or imposed a fine

Up to five years of imprisonment or a fine will be imposed to everyone who refrains from keeping the legally required accounts in case of over-indebtedness, impending or actual insolvency, or_who keeps or changes the accounts in such a way that it becomes difficult to obtain a true picture of his financial situation.

Up to five years of imprisonment or a fine will be imposed to everyone who in case of over-indebtedness, impending or actual insolvency and contrary to the provisions of the commercial law

a. draws up the balance sheets in a way which makes it difficult to obtain a true picture of his financial situation, or

b. refrains from drawing up the asset and liability statement or taking the inventory within the required

If several persons commit the criminal offence conjointly, each one will be punished as offender (joint offender).

I. If the same act violates several criminal laws or one law several times there will be only one sentence awarded.

II. If several criminal laws are violated, the punishment

will be determined by the law providing for the most severe punishment. It may not be milder than the other applicable laws permit.

III. Under the provisions of section 41 the court is allowed to impose a separate fine besides imprisonment.

Iv. Supplementary penalties, incidental consequences or other measures (section 11, paragraph 1 number 8) must or can be awarded, if they are prescribed or allowed by the applicable laws.

I. If someone has committed several criminal offences, which are sentenced summarily, and by that, is imposed several prison sentences or several fines, a cumulative sentence is awarded to him.

II. If prison sentence and fine coincide, a cumulative sentence is awarded. The court may also award a separate fine; if in these cases fines shall be imposed because of several criminal offences, a cumulative fine is awarded.

IIl. Section 52, paragraph 3 and 4 apply accordingly.

herewith I certify that the provisions of the Private Company Limited Act of April 20, 1892 (Reich Law Gazette page 477) in the amendment of May 20, 1898 (Reich Law Gazette page 846) (Federal Gazette III 4123-1) mentioned in the preceding warrant of arrest of the District Court of Koblenz have the following wording:

If the company becomes insolvent, the Directors have to file a petition in bankruptcy or a petition to institute composition proceedings without undue delay, latest three weeks after becoming insolvent.

This applies accordingly if the assets of the company do not cover the debts.

There is no undue delay of the petition, if the Directors proceed with the institution of composition proceedings in due diligence of a businessman.

Up to three years of imprisonment or a fine will be imposed to everyone who, acting as shareholder or Director for the purpose of registration of the company, makes' false statements with regard to the take-over of original capital shares, paying-up of shares, use of paid-in amounts, special advantages, organization expenses, contribution in kind and provisions of security for not fully paid-in money contribution.

Up to three years of imprisonment or a fine will be imposed to everyone who in case of insolvence or over-indebtedness as Director contrary to section 64 paragraph 1 or as liquidator contrary to section 71 paragraph 2 refrains from filing a petition in bankruptcy or a petition to institute composition proceedings.

A further certificate relates to, among other matters, the nature of the charge: "2. Furthermore I certify that both Linhart and Bongardt are charged of having committed conjointly all acts and forebearances mentioned in the warrant of arrest of

January 28, 1987. Extradition is demanded for all of these acts and forebearances."

There was no oral or written evidence going to the commission of

the offences, except that a local expert, Dr Ziegert gave evidence respecting the nature of German companies, and the concept of limited liability and the meaning of shareholder in relation to them. The fugitive is precluded from addressing evidence "to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person is requested" (s.17(6A)). It will have been noted too, that the offence alleged to have occurred in the requesting

The appeals turn on the application of sub-sections (1A) and (1B) of s.4. It is convenient, and I think helpful to turn

first to the more recent legislative history relating to s.4(1A).

"(1A) An offence against the law of, or of a part of, a foreign state is an extradition crime for the purposes of this Act if, and only if, the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or ommissions, any of those acts or omissions or any equivalent act or omission, would, if it took place in, or within' the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia that -

(b) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence."

By Act No. 18 of 1985, which was to take effect when

proclaimed, and this occurred on i July 1985, the following

"(1A) An offence against the law, or of a part of, a foreign state (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if,

(a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and

(b) an act or omission by the person which is, in or in connection with the requsition for the surrender of the person, alleged to have taken place or of which evidence is produced in connection with the requisition for the surrender of the person, or any equivalent act or omission, would, if it took place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constitute an offence against the law in force in that part of Australia."

By Act No. 193 of 1985, the Act was further amended in many respects, the further amendments coming into operation on 16 December 1985. Paragraph 4(1A)(b) was omitted and the following substituted:

"(b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that

part of Australia the maximum penalty for which is death or imprisonment for not less than 12 months."

There was then added a sub-section (1B): "(1B) The reference in paragraph (1A)(b) to a relevant act or omission by a person is a reference to - - (a) an act or omission by the person -

(i) which is, in or in connection with the relevant requisition, alleged to have taken

({2i) of which evidence is produced in connection with the relevant requisition; or

(b) any act or omission that is equivalent to any act or omission referred to 1n paragraph (a)."

Relevantly, three important changes occurred with the amendments of 1985. The schedule of offences was omitted, leaving the search for a local offence at large. The words in the earlier s.4(1A) "equivalent act or omission" were omitted from it, and placed in a separate paragraph. The third important change is that, so far as the Act itself is concerned, the matter relied upon by the requisitioning state does not have to amount to proof by evidence of a local offence. What 1s to be looked is what is alleged, that is the act or omission alleged. This means

that the rule of dual criminality now presents a different face.

There is doubtless a question as to the standing of facts, not amounting to allegations, contained in or in connection with the requisition. If they were material to the case they would have to be proved. In the present case we do not have all the materials which were before the magistrate (we do have an excerpt of an expert's evidence), or know what concessions, if any, were made by counsel on either side. We do not know what reasons the magistrate gave. We know, from what his Honour has said, that the magistrate committed the fugitives

On the hearing of this appeal, no objection was taken to any part of the contents of the warrant, or to any part of the documents with the requisition. The matter proceeded on the

The particulars of the first offence have been set out. There is preliminary matter in the warrant which contains some allegations of a broad nature, but the essence of what is alleged is that when applying for entry into the commercial register of the Bad Honnef company (as I will call it) the appellants affirmed untruthfully that they had paid up their original capital shares of DM 100,000 and that those amounts were at the

In relation to this charge, one of two local offences

relied upon is that under s.563(2) of the Companies Code (NSW):

"563(2) A person who, in a document required by or for the purposes of this Code or lodged with or submitted to the Commission, makes or authorizes the making of a statement that to his knowledge is false or misleading in a material particular, or omits or authorizes the omission of any matter or thing without which the document is to his knowledge misleading in a material respect, is guilty of an offence.

Penalty: $10,000 or imprisonment for 2 years, or both.:" This sub-section relates to documents. The German charge does not refer in so many words to a document but I think that in the context the language used should be taken as

referring to one. What is said in the German warrant is that

matters were "affirmed in the application". An inference could be drawn that the authorities required it to be completed, but there is the alternative in the local sub-section which I have quoted of lodging with or submitting to the Commission. So far as appears there was not a Commission in Germany; the document

Two matters of objection are raised by senior counsel for the appellants. It is submitted that whereas s.563(2) requires knowledge of falsity, the German offences do not. The question is however whether the acts or omissions alleged constitute an offence under the sub-section. There arises from the particular allegations an inference, which could possibly be drawn, that they did know. Having in mind the nature of the process, I do not think the inference should be drawn, simply from that material, but it was open to the magistrate to take into account other allegations from which he could properly

It was then submitted that the offence could not be committed in Australia, because of the different method here of registration of companies. It is true that the documents to which s.536(2) refers are those lodged with the "Commision", and that this body had no existence in Germany. Also, under our law, a person could not claim to be a director or a shareholder of a

criminality in one sense or another has to be established, a

translation or substitution of some factors has to take place. Locality is an obvious one, but, depending on the context, institutions, officials and procedures are others. There is in addition the reference to "equivalence" in the legislation (s.4(1B)(b))}. The question of the outer bounds of this concept fortunately does not arise for decision in this case, but there is therein at least a formal sanction for making adaptations such as I have mentioned. The appearance of the relevant words ina separate paragraph makes it plain that they add something to what

As I have indicated, I do not think the case calls for a close examination of the phrase. What exactly is meant by an act or omission being equivalent to an act or omission is not easy to determine. Inasmuch as equivalence can only be judged according to some standard, or purpose, or other external factor there would seem to be an ellipsis. I have indicated that even without para.(b) some translation must be required. Reference has been

made on both sides to Riley v. The Commonwealth (1985) 159 CLR 1,

a case decided on the law as it existed before the 1985 amendments which I have set out. There was in that case a difference of opinion as to the meaning of "equivalent act or omission" as it then appeared. In a joint judgment Gibbs C.J., Wilson and Dawson JJ said at p.8: "The reference in the sub-section to an "equivalent act or omission" is to an act or omission which would be the same as the act or omission which is an element of the

offence against the law of the foreign state were it not for the fact that the law of the roreian state requires

(whether or not for reasons o urisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign state. For example, the act of importing narcotics into

Australia 1s an "equivalent act" to the act of importing narcotics into the United States."

This passage appears immediately after reference to provisions in the law under which the case was decided, which have no counterpart in that now under consideration. However, the same words are still used. What was said was plainly applicable to the particular circumstances of the case (illegal importation of hashish, which was treated as a "dangerous" drug by the Full Court of the Federal Court and thus came within the words in an item in Schedule 1). It seems to me clear that the judges were not intending to give a full or complete exegesis of the phrase, and of course there is now the very different context. Dawson J. considered the case by reference to the Treaty, but expressed his agreement with the reasons of the majority. Deane J. found it unnecessary to pursue the line of reasoning adopted by Dawson J. He discussed in some detail the principle of double criminality. At p. 17 he says:

"The utility of the principle of double criminality is,

however, likely to be outweighed by the impediment which

it represents to the advancement of criminal justice if its content is defined in over-technical terms which would preclude extradition by reason of technical differences between legal systems, notwithstanding that the acts alleged against the accused involve serious

criminality under the law of both requesting and requested states."

Later, (pp.17,18 in relation to the same subject) he says:

"The preferable view - and that which commands general acceptance - rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under criminal law of the requesting and requested states and defines' the principle of double criminality in terms of substance rather than technical form. On this view, the

requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements: O'Connell, op. cit., vol. 2, p. 723. This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than upon general theoretical correspondence between the legal elements of the offence which he is alleged to have committed against the law of the requesting state and some offence recognized by the law of the requested state."

At p.19 His Honour expressed disagreement with the majority view that s.4(1A), as it then stood, excluded the content of double

"Ignoring the references to "equivalent" acts and omissions which are not here in point, the primary provision of s.4(1A) of the Act (which corresponds with the definition of "extradition crime" in the 1966 originating Act) incorporated the requirement of double criminality in the case of a simple offence: "the act or omission constituting the offence ...would, if it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia."

His Honour was therefore of the view that the equivalence provision did not come into operation on the facts of

The words "equivalent acts or omissions" are not new to extradition legislation. They appear for example in s.3(1) of

the Fugitive Offenders Act 1967 (in a slightly different setting)

but they do not seem to have been the subject of judicial comment before Riley. In the present context one would I believe look to see whether the alleged equivalent act or omission has a place in relation to the local crime under consideration which, allowing

for necessary changes such as I have mentioned, nevertheless

clearly corresponds to the place which the act or omission is alleged to have in establishing the foreign crime for which extradition is sought. Having said that in deference to the arguments submitted, it does not seem that reliance has to be placed on the phrase in question in this case. Of course not all of the ingredients of the offence charged in the requesting state need exist before there is a local offence. If the local offence requires more ingredients than those alleged then there is no extraditable crime. I should add that there was no challenge to the sufficiency of the allegations to support the German crimes. The offences charged are not accompanied, each in turn, by a reference to the law which is said to have been breached, but a statement of relevant laws appears at the end of the warrant, and

At a glance

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Judgment (452 paragraphs)

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Cases Cited (4)

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