Schlieske v Federal Republic of Germany

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

1. 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

2. 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:

1. 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.

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

3. 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

they can usually be related to each alleged offence.

I am of the view that in relation to this charge the requirements of s.4(1A) are satisfied by reference to s.563(2) of

Section 178BB of the Crimes Act 1900 is also relied on:

"whosoever, with intent to obtain for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it 1s true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.

establish an offence under this section. An untruthful statement

was made, made by one for both, or made separately by each. It is alleged in the warrant that the appellants wanted to enrich themselves "under the guise of these companies", that is, using

There are two charges after the first, both of which are expressed in the one statement, almost conversationally, as follows:

",,. having kept the legally required accounts during the

impending insolvency and after insolvency in such a way

that 1t was extremely difficult to get a picture of the financial situation,

not having produced the asset and liability statement

I have referred to the non-technical form of expression, but it is to be remembered that the document is a warrant, and not an indictment. The allegation concerning "legally required accounts" could pose a problem because of the resultant circularity, but other acts and omissions are stated, and they

contain a number of allegations relied upon to support the

The third respondent places reliance upon a combination of sections 555(1), 267(1), 553(1) and 553(3) of the Companies

Code. Section 267(1) imposes a liability on a company to keep

accounts, and what is alleged would establish a breach of that

record and explain the transaction of the company (including any transactions as trustee) and the financial position of the company; and

(b) keep its accounting records in such a manner as will enable -

(i) the preparation from time to time of true and fair accounts of the company; and

(ii) the accounts of the company to be conveniently and properly audited in accordance with this Code.

(a) a provision of section 267 was not complied with, in respect of a company to which this section applies, during the whole or any part of the period of 2 years immediately preceding the relevant day or the period between the incorporation of the company and the relevant day, whichever is the shorter; and

(b) the company was at any time during that period, or became at a later time, a company to which this section applies,

reasonable steps to secure compliance by the company

with the provision throughout that period and any officer of the company who is in default are each guilty of an offence.

A defence which is raised is that while 5.555 makes directors liable for a breach of s.267, it does not cast a responsibility on "de facto directors", a phrase used in the warrant, and while it is there also alleged that the appellants

were "official directors" most of the time, this 1s indefinite

and not sufficient to establish a breach of s.555. The time referred to is properly to be taken as within the period covered by the relevant charges, namely the calender or the ""fiscal"

years 1983, 1984 and 1985. The Untel company was incorporated on

22 July 1983 and the Bad Honef company on 30 January 1984. The companies are alleged to have been insolvent in March 1984 (this appears twice, once under (3)). It is said, with some detail, that there was no "proper" bookkeeping, and this plainly means everall. It is further stated, in part as a concession, that "the persons charged had the accounts up to the middle of 1984 worked up...but this did not produce a true picture of the financial status...". Later it is said that "the persons charged had not produced any balance sheets for the fiscal years 1984 and 1985..." An earlier (general) allegation, only marginally relevant to these charges, is in the following words: "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-Handelsgesellschaft 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-Handelsgesellschaft mit beschrankter Haftung (Bad Honnef) into Neu Century Video-Handelsgesellschaft mit beschrankter Haftung (New Century Video Trading Company Limited) and officially moved the headquarters of both companies to Dortmund." The application of s.555(1) may in some cases be limited by s.553, but it has not been suggested in this case that this is

The relevant date (see s.553) has been treated as having occurred, and this would appear correct. The first argument, as I have said, is that it is not alleged that the appellants were directors at relevant times, and de facto directors are not made liable. It seems to me however that the conclusion is

inescapable from what is alleged that the appellants were

directors at times relevant for the application of s.555(1). It is submitted also that the directors are not alleged to have failed "to take all reasonable steps to secure compliance by the company with (s.267) throughout the period...". What I have already said, and the passages I have quoted are sufficient to establish that the learned magistrate was entitled to conclude that there were in these two cases allegations showing breaches of these sections, and that there were in this regard

The learned judge reached the same conclusions, in relation to the charges I have been discussing, and it is from those that the appeal was brought. I am therefore of the view

The learned magistrate was of the view that cases for extradition had been made out in respect of the remaining charges. They number 24 in all, but are governed by similar considerations, so far as concerns extradition. The learned judge held that local offences had not been made out, and that the cases were not properly the subject of a warrant for extradition. He 'allowed the present appellants' appeal in respect thereof. The cross-appeal is brought against this conclusion. No question has been raised as to the availabililty

of the cross-appeal (see and compare sections 17A and 18).

The learned judge did not consider the question of dual criminality in relation to those offences, but held that they did

not satisfy s.17(6)(a)(i)}(C) of the Act. This provision was set

There are a number of allegations referable to these charges, in the opening part of the warrant under. the classification numbered (4), and in the general statement, and in more detail under the heading "Relating to 4". This has all been .

set out, and I will not repeat the various passages.

The emphasis is on the words "all the acts or omissions" in s.17(6)(1)(a)(C), and particularly "ali". His Honour, looking first at allegation (a) under (4) said:

"However, whilst the terms of the false representations

alleged, are stated, there is no mention of how or in

what circumstances the representations were communicated by or on behalf of the applicants to Braun. In my

opinion, the statement did not comply with s.17(6)(a)(i)(C) (cf. The King v. Weaver (1931) 45 CLR

321 at p.333)." The passage referred to in The King v. Weaver deals with particulars of an indictment, and I have not found it helpful in

I must say, with regret, that I find myself in disagreement with his Honour's conclusions on this part of the case. I have earlier pointed out that the document is a warrant, not an indictment, and in fact all that the sub-paragraph in terms requires is a statement, not necessarily part of the warrant. The object of the particularity is partly so that the aspect of double criminality (in its muted form) can be considered adequately, and partly so that s.13, the speciality

provision, becomes more patently applicable. (It was accepted in

Riley that this principle, as expressed in Art. XIV(2) of the

U.S. Treaty was applicable, but it is not clear what construction

the appellants had (at the relevant time) the purpose or intention of obtaining fresh money;

they persuaded Dieter Braun to become a co-partner and a director of the Bad Honnef company which was to be incorporated;

in this connection they falsely pretended to Braun that they had paid up original capital shares in the sum of 100,000 DM each and had bought with it most of the video-films;

they had only leased the films and not bought them; the foregoing was, or involved, a fraudulent misrepresentation;

Braun was persuaded by the representations and paid the money into the company account;

the appellants caused loss by fraudulent misrepresentation with the intention to obtain unlawful enrichment for themselves or a third party; they acted conjointly;

the overall period in which this and similar offences occurred was from August 1983 to October 1985;

If there were a trial in this country the appellants might well be entitled to some further particulars, but a trial ia not under consideration. The decision of the Attorney-General has yet to be made and his discretion exercised before there can

The phrase "act or omission" in the Act might possibly be read compendiously to include static conduct, but at least there is no strict requirement that all allegations be purely factual. Where a term such as "fraudulent misrepresentation" is used, which has a technical meaning to us, there is the danger (in the absence of evidence) that it have a different meaning in German usage, but it does at least provide some assistance, were it necessary, in understanding what is meant by other language in the warrant. Plainly, it imports dishonesty, and

It seems to me that what is said in the warrant in relation to (4)(a), amply satisfies the requirements of

On the aspect of dual criminality, the third respondent seeks to support the charges by reference to s.178BA and s.179 of the Crimes Act 1900 (N.S.W.). The first mentioned of these two sections is as follows:

"178BA.(1) Whosoever by any deception dishonestly obtains for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment

(2) For the purposes of subsection (1), "deception"

means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."

"179. Whosoever, by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, obtains from any person any property, with intent

to defraud, shall be liable to penal servitude for five years."

It has not been submitted that in relation to this or any of the charges that there is a possibility that for some purely territorial reason the charges in question are not shown to be extraditable crimes, and I shall not attempt to construct the arguments which might give support to such an approach (cf. R

v. Governor of Brixton Prison; ex parte Rush (1969) 1 WLR 165).

In relation to item (b) under (4) there are the following allegations:

(ii) In October 1983 he suggested to Roehr that he should set up a video-shop as licensee from the Bad Honnef company.

(iii) The licence fee would be 28,500 DM, to be paid to the company.

(iv) It was said that that company would provide a regular exchange of video-cassettes.

(v) The appellants knew (at the time) that the company

(vi) There was in this a fraudulent misrepresentation. (vii) Roehr signed an agreement with the company on 20

(viii) No exchange of cassettes occurred. (ix) There was no return of the licence fee. (x) The appellants inflicted loss with the intention of

There is, on the allegation, a written agreement. Having in mind the control over the companies exercised by the appellants, and the allegations concerning money received or held by them, it is safe to conclude that from the conduct alleged the appellants obtained money or financial advantage as a result of

I am therefore satisfied both that the statutory requirements in s.17 were fulfilled and that there was an

The introductory part of what is alleged under 4(c)-(x) deals with "fraudulent's acts" (and, earlier, "fraudulent misrepresentations"). The general allegations, appearing in three places, seem to allow for alternatives:

(i) the appellants also entered into other financial

(ii) they acted mostly on behalf of one or other of the companies (not specified, but in most cases ascertainable by reference to dates appearing later); and

Probably in most cases, the appropriate alternative can be determined from the more general opening statement and the detail later given, but there is some uncertainty and a lack of the detail required by the legislation. I was for a time inclined to the view that, in relation to (c) at least, the allegations could be fixed with sufficient clarity and certainty, but I am persuaded by what my colleagues have written that this cannot properly be done. I am therefore of the view that a warrant of committal, or a surrender cannot issue in respect of these paragraphs, and I agree that the cross-appeal with regard thereto should be dismissed. I therefore find myself in agreement with Foster J. as to disposal of the proceedings. Very

largely, we have come to the same conclusions as Beaumont J.

I would therefore dismiss the appeal, allow the cross~appeal in respect of charges 4(a) and (b) and dismiss the cross-appeal in respect of the other items. The order of Beaumont J. should be set aside and it should be declared that the warrant of committal is supported by the first three charges (two being identified under the number (2)) and by the charges

identified as 4(a) and 4(b), but not otherwise. As the charges were identified differently by his Honour, and by the learned

magistrate, in the warrant of committal, I agree with the orders

which are proposed in order to deal with this situation. The appellants (cross-respondents), should pay three quarters of the costs of the third respondent (cross - appellant). There should be no order as to the costs of the other respondents. No order for costs was made by Beaumont J. and I am of the view that this

I certify that this and the thirty five (35) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fox.

On appeal from a Single Judge of the Federal Court of Australia.

BETWEEN: HARALD ROLF LINHART and PAULA BONGARDT Appellants/Cross Respondents

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

CORAM: FOX, GUMMOW AND FOSTER JJ. PLACE: SYDNEY. DATE: 20 JUNE 1988

The facts, together with the certified translation of the warrant and the terms of the applicable Australian statutory provisions, are set out in the Reasons for Judgment

In some respects, the conclusions I have reached differ from those reached by the other members of the Court. The extent and character of that disagreement will appear in convenient form if I deal seriatim with the charges, the

The two local offences relied on in relation to this charge are those provided by sub-s. 563 (2) of the Companies (NSW) Code and s. 178BB of the Crimes Act 1900 (NSW). Sub-s. 563 (2) provides as follows:

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.

It will be seen that the sub-section 1s concerned with documents and whilst the charge in question does not refer in terms to a document, I agree with Fox J., for the reasons he

gives, that in the context the language used should be taken as

Senior counsel for the appellants took two points in relation to the first charge, one of which had been taken

unsuccessfully before Beaumont J., and the other of which was

Before Beaumont J., the appellants unsuccessfully submitted that the offence could not be committed in Australia because of the different method here of registration and administration of companies. Sub-s. 563 (2) refers to

documents lodged with the National Companies and Securities

Commission (see s. 9 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (NSW) )

and, of course, this body has no part in the administration of German company law. Further, under local law, in the absence of some special statutory provision, a person could not properly assert that he or she was a director or shareholder of

The second, and fresh, objection was that sub-s. 563 (2) requires, so far as is material, knowledge of falsity and the act or omission alleged in respect of the first charge would not constitute an offence under the local provision. In this way, the appellants raised issues as to the operation of the principle of "double criminality", to the extent to which it is represented by sub-s. (1A) and (1B) of s. 4 of the

Extradition (Foreign States) Act 1966 ("the Act"), which

(1A) An offence against the law of, 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, but only if -

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

(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.

(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 requisition, alleged to have taken place; or

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

to an act or omission referred to in paragraph (a).

These provisions require one to ask whether, if an act or omission which 1s alleged to have taken place, had taken place at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the fugitive was found, that act or omission would have constituted an offence against the law in force in that part of Australia and

In this way, these provisions require a translation or substitution of locality. In many cases, that may be

sufficient to enable one to say that the offence for which the

requisition or surrender has been made is an extradition crime. For example, there would be many offences against the person under foreign law or local law, the constituent acts of which have no particular national or territorial character other than the presence of the offender and victim in a particular jurisdiction at the time of the commission of the offence. In this way, the provisions in s. 4 place primary emphasis on the acts constituting the offence alleged against the fugitive, rather than any general theoretical correspondence between the legal elements, including principles of territoriality, of the offence which the fugitive is alleged to have committed against the law of the requesting state and some offence recognised by

local law: cf. Riley v The Commonwealth (1985) 159 CLR 1 at

The position becomes more complicated where the offence under foreign law contains elements which in terms require acts or omissions in relation to institutions or organisations which are established under that law and have a purely parochial character. Examples are suggested by the reference in the facts in support of the first charge to concepts and institutions of German company law and by sub-s. 563 (2) of the Companies (NSW) Code, with the reference therein to the National Companies and Securities Commission. Section

4 of the Act deals with such situations by asking, inter alia,

whether if an act or omission that 1s equivalent [emphasis supplied] to an act or omission which is in the relevant requisition alleged to have taken place, had taken place at the

time when the requisition was made, in, or within the

jurisdiction of, the part of Australia where the fugitive was found, that equivalent act or omission would have constituted an offence against the Australian local law and have attracted

Although their remarks were directed to the Act in an earlier form, this reflects the import of the observation of Gibbs CJ, Wilson J. and Dawson J, in Riley v The Commonwealth (1985) 159 CLR 1 at 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 1s an element of the offence against the law of the foreign State were 1t not for the fact that the law of the foreign State requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some lace or thing in or connected with the foreign State.

Whatever else is within the ambit of the term "equivalent" in s. 4 of the Act, something not necessary to decide in this case, in my view it poses the question, as a matter of practical judgment, whether the acts in question allegedly committed in relation to and by reference to German company law and administration thereof were such that equivalent acts would have constituted an offence against

sub-s. 563 (2) of the Companies (NSW) Code. The notion of

"equivalence", in my view, imports a meaning of corresponding significance between the two legal systems, and of a

Approaching the matter in that way, 1t 1s quite clear, in my view, that the differences to which senior counsel for the appellants pointed between German and New South Wales company law and company administration are not sufficient to take the first charge outside the description of an extradition crime in the Act. On this point, I agree with the conclusion

There remains the objection founded upon the presence in sub-s. 563 (2) of the requirement of knowledge. In the material in the warrant dealing with the facts of the case relating to the first charge, it 18 stated that the appellants "affirmed untruthfully" certain matters. Senior counsel for the appellants pointed out with some force that as a matter of English, one may affirm an untruth without doing so knowingly. Reliance was also placed on the earlier statement in the warrant that the appellants were charged in regard to the first charge with having made "knowingly false" statements as shareholders and directors. However, senior counsel for the appellants took us to the German text and to dictionaries which pointed clearly to the conclusion that a better translation of the German would have been "false", rather than "knowingly

I appreciate that in respect of other charges, fraudulent conduct is plainly asserted against the appellants. I also note the statement in general terms that the appellants "really wanted to enrich themselves on account of others under

the guise of these companies". Whilst the expression "under

the guise" carries a pejorative connotation, this does not take the matter far enough. In my view, the material dealing with the first charge does not enable one to say that one integer of the local offence, making statements which were false or misleading to the knowledge of the person concerned, is alleged in the materials furnished by the third respondent with sufficient clarity properly to have satisfied the magistrate that the appellants were liable to be surrendered on the first

There remains for consideration s. 178BB of the Crimes Act 1900 (NSW). This provides:

himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he knows to be false or misleading in a material particular or which 1s false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.

It follows from what I have said as to sub-s. 563 (2) of the Companies (NSW) Code that there 1s also lacking with respect to s. 178BB the necessary allegation of making or publishing the material in question, with knowledge of its false or misleading character. Nor is there an allegation of reckless disregard as to truth or falsity or misleading character. Accordingly, as an alternative to sub-s. 563 (2),

The result is that on this point I differ from the other members of the Court and I would hold that, for reasons only now put to the Court, Beaumont J. was in error in upholding the decision of the magistrate in respect of the

I would respectfully agree with the conclusion reached by Fox J. that the appeal as to these counts fails. I do so

These number twenty three in all, but were treated by the learned trial judge as governed by similar considerations. His Honour held that these charges were not in respect of offences for which the magistrate might properly have been satisfied that the appellants were liable to be surrendered. The appellants did not complain that the charges lacked the character of extradition crimes with the meaning of s. 4 of the Act. Rather, 1t was alleged that there had not been produced to the magistrate "a duly authenticated statement in writing setting out all thé acts or omissions in respect of which the surrender of [the appellants was] requested" within the meaning

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

Item (B) in sub-para. 17 (6) (a) (1) requires production to the magistrate, in a case such as the present, of:

applicable to each such offence; ... Both items (B) and (C) thus require provision of "a duly authenticated statement in writing" which sets out various material. That statement in writing may or may not be a part of the duly authenticated warrant or copy thereof which is the first item that must be produced to the magistrate: see item

" However, in my view, items (B) and (C) are directed to particular and distinct subjects. The description of the offence referred to in item (B) is a description of the provisions of the foreign law which renders the acts or omissions set out in item (C) an offence under the foreign law. Thus, in the present case, the warrant was accompanied by certificates as to the terms of various sections in the German

Criminal Code, and the Private Company Limited Act.

The function of the duly authenticated statement in writing setting out all the acts or omissions, in respect of which the surrender of the person is requested (item (C)), 18 to enable adequate consideration of the question of whether extradition is sought in respect of extradition crimes satisfying the requirement of "double criminality" as reflected

in sub-s. 4 (1A) and (1B). In this regard, sub-s. 17 (6A) has

the effect that whilst the magistrate 1s obliged to take into account any evidence properly adduced by the fugitive, the fugitive is not entitled to adduce and a magistrate is not entitled to receive evidence to controvert an allegation that the fugitive has committed an act or omission in respect of which the surrender is requested. Further, the statement setting out all the acts or omissions in respect of which the surrender is requested, serves, in conjunction wath the statement in writing setting out the description of the offence, to assist determination of whether the speciality

In the present case, the learned trial judge held that a general description of the offence would not satisfy the requirements of item (C). His Honour stressed the force of the adjective "all" in item (C) and held that it was necessary to go further and "to specify the details of the conduct alleged by referring to the manner or means whereby the offence charged was committed". In dealing with one of the charges, his Honour said that whilst the terms of the false representations alleged were stated, there was no mention of how or in what circumstances the representations were communicated by or on behalf of the applicants to a particular party. His Honour referred to a passage in The King v Weaver (1931) 45 CLR 321 at 333, but that passage dealt with

As I have indicated, a strong pointer to the proper

construction of 1tem (C) may be found in sub-ss. 4 (1A) and

(1B), and in particular in the repetition in these provisions of the phrase "act or omission". I have set out earlier in

Section 4 (1A) requires one to ask of "a relevant act

Or omission" whether "that act or omission", in the

circumstances postulated, would have constituted an offence "under local law"; the expression "a relevant act or omission"

is then treated by sub-s. (1B) inter alia, as "an act or

omission" (or any equivalent act or omission) which, in the relevant requisition, is alleged to have taken place [emphasis supplied]. The provisions thus postulate that the "act or omission", if committed in Australia, would itself and with further analysis have constituted an offence. This suggests that the "act or omission" is described or identified in these sub-sections in terms of conclusions or findings of fact as to the essential elements or integers of an offence, rather than a plethora of particular facts which, 1f taken together, may lead

This is of some significance when construing sub~para. 17 (6) (a) (iY (C€). The expression "all the acts or omissions" is apt to describe the situation where surrender of the fugitive is sought in respect of a number of offences which the requesting State believes, if committed 1n Australia, may have constituted an offence under local law. A description of each offence must be provided under sub-para. 17 (6) (a) (1) (B). One then takes each "act or omission" and subjects it to

the test prescribed by s. 4. As I have indicated, s. 4

proceeds on the basis that "an act or omission" may have constituted an offence under local law. The force of the adjective "all" in item (C) is to identify the several acts or omissions, each of which is then sought to be treated as founding an extradition crime because, if 1t had been committed

in Australia, 1t would have constituted an offence.

It follows that for a statement to satisfy the description in item (C), it must speak with sufficient specificity to enable the magistrate to be satisfied that the fugitive in question is liable to be surrendered (para. 17 (6) (b)). This involves consideration of the sufficiency of the statement to enable proper consideration of the application to the particular case of sub-ss. 4 (1A) and (1B) and s. 13. Again, an inquiry as to whether a statement satisfies the description with item (C) will be a matter for practical judgment and assessment, bearing in mind the prohibition ins. 17 (6A) upon the production of evidence by the fugitive to

controvert the commission by the fugitive of the acts or

omissions in respect to which the surrender is requested.

In respect of the first two of the remaining charges, those numbered (4) a. and (4) b. in the warrant, I agree with Fox J. that the statement satisfies the description in item (C). I do not repeat his Honour's analysis of the material on

The local laws relied on in respect of both charges

are s. 178BA of the Crimes Act 1900 (NSW) and s. 179 of the

same statute. The text of these provisions is set out in the judgment of Fox J. In my view, the act or omission 1n respect of which extradition 1s sought would have constituted an offence in the necessary sense under both provisions of the New

general statement: 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

beginning, The goods obtained were kept. Such fraudulent acts were committed in the

The specifications of the offences in items c. - x. would not in themselves be sufficient to answer the description in s. 17 (6) (a) (i) (C). They do not set out in the necessary sense "the act or omission" in respect of which the surrender of the appellants is sought. They are a bare summary of some of the elements involved. Plainly, these deficiencies are sought in each case to be remedied by what is to be drawn for each case from the general words of the introductory matter I have set out above. However, this serves only to compound the

problem. The introductory matter contains within 1t various

assertions, some of which are in themselves ambiguous and some of which are obscured alternatives to other assertions. In any given instance of charges c. - x., it would require removal of the ambiguities in the general statement and a choice between alternatives before the reader would be able to put the jig-saw together and then ask what it is that "sets out" the

act or omission in respect of which surrender 1s sought.

Thus, the introductory statement contains allegations: (1) the appellants ordered and obtained goods between October 1983 and October 1985, (ii) they did so by fraudulently pretending to be solvent and willing to pay,

(111i) they also entered into other [not more than precisely described] financial obligations,

(iv) semble in connection with transactions in classes (i) and (iii), they acted "mostly" not as principals but on behalf of Century- - Consumer Products,

(v) the agreed remuneration quaere both in transactions in classes (i) and (1ii) was only paid, semble by the appellants, in part or not

at all, and the goods obtained were kept, quaere by the appellants or Century-Consumer

In my view, on this material, the magistrate did not have before him, in respect of charges c. - x. inclusive, a

statement in writing which satisfied the description in sub-s.

17 (6) (a) (i) (C), and it was not open to him to be satisfied that the appellants were liable to be surrendered in respect of

Accordingly, I would allow the appeal as to the first charge, dismiss the appeal as to the second and third charges, allow the cross-appeal as to charges a. and b. of the remaining charges, and dismiss the cross-appeal as to the balance of the

I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Gummow.

) NEW SOUTH WALES DISTRICT REGISTRY) No. G782 of 1987

On appeal from a Single Judge of the Federal Court of Australia.

BETWEEN: HARALD ROLF LINHART and PAULA BONGARDT Appellants/Cross- - Respondents

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

CORAM: FOX, GUMMOW AND FOSTER, JJ. DATE: MONDAY, 20 JUNE, 1988.

FOSTER, J.: The relevant facts, documents, and statutory and regulatory provisions are set out in the Reasons for Judgment of

It was submitted on behalf of the appellants, in relation to this charge, that the dual criminality requirements

of s. 4(1)A, could not be satisfied. The relevant local law,

relied on by the third respondent, was s. 563(2) of the Companies (N.S.W.) Code and also s. 178B of the Crimes Act, 1900.

Section 563(2) of the Companies (N.S.W.) Code provides

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.:"

The facts relied upon as constituting the relevant defence under the law of the third respondent, were set out in the warrant as follows:-

"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 definitely at the free disposal of the company management. Even later on the persons charged didn't pay up their shares nor parts of them."

amount to acts or omissions constituting a breach of s. 563(2)

Firstly, it was put that the impugned conduct in Germany related explicitly to German institutions and procedures. The German corporation had different features from the New South Wales company; registration of the German corporation was effected with the District Court in Koenigswinter, whereas registration of a New South Wales company is effected with the Corporate Affairs Commission; the registration procedures were obviously different in that the German procedures clearly required a motion before the District Court. The point was also taken that in New South Wales it would not have been possible to

have paid capital sums to a company before 1t was incorporated.

I am of the view that, because of the provisions of s. 4 (1)B(b), these submissions must be rejected. Under that sub-section, the Magistrate, when considering whether the existence of an "extradition crime" has been demonstrated in the warrant and other material placed before him, is required to consider whether, in relation to the acts and omissions alleged

to have occurred in Germany, constituting the offence against

German law, there exist equivalent acts or omissions which, if occurring in New South Wales, would constitute a breach of a relevant New South Wales law. The concept of an "equivalent" act

or omission is a broad one and is expressed rather elliptically

The expression "equivalent act or omission" in an earlier form of the section was considered by Gibbs, C.J., Wilson and Dawson, JJ. in Riley v. The Commonwealth (1985) 159 C.L.R. 1 at 17-18. Their Honours, within the context of the facts of that

"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 foreign State requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign State."

I consider that this view of the operation of the section is sufficiently wide to encompass the regarding of the registration of a New South Wales company with the Corporate

Affairs Commission as being equivalent to registering of the German corporation with the District Court by way of motion to the Court. It is clear that the gravamen of the offence under German law was the making of false statements in a document required by that law to be placed before an institution in a position equivalent to that of the New South Wales Corporate

Affairs Commission. The fact that the German section requires

that the person making the false statement be "acting as share-holder or director" and that the statement be made "for the purpose of registration of the company" or that the false statement should relate to "paying up of shares" 1s, in my view, nothing to the point. Having regard to the basic criminality contemplated by the German section and the New South Wales section, the acts or omissions contemplated by the New South Wales sections are "equivalent" to those required to constitute

It is secondly submitted, on behalf of the appellants, that the facts alleged in respect of the first charge could not constitute a breach of s. 563(2) in that there is no allegation of knowledge of falsity. It is correct that the statement of facts in the warrant in relation to this charge says only that "the persons charged affirmed untruthfully in the application ---",. Obviously, a person can affirm an untruth without being aware of the untruthful nature of what he affirms. The Magistrate, however, is not restricted in his considerations simply to the facts relating specifically to this charge. He can have regard to all other relevant facts put before him in the warrant and supporting documents. In my view, other facts clearly indicate that when the words "affirmed untruthfully" were used, they were intended to indicate that the affirmation was untrue to the knowledge of the appellants. The relevant German charge relates to the second German corporation, which I shall

refer to as the Bad Honnef Corporation. The relevant allegation

was that, when seeking registration of this corporation, they untruthfully affirmed that they had paid up their original capital shares of D.M.100,000 whereas "only the witness Braun had

paid up his original capital share of D.M.100,000".

When this material is read with the allegations relating to the fourth charge, it becomes quite clear that the words "affirmed untruthfully" conveyed a meaning of "knowingly affirmed untruthfully". The relevant allegations relating to the fourth charge read as follows: - "In order to obtain fresh money, the persons charged pursuaded the witness Dieter Braun by the end of 1983 to become a co-partner with a capital share of D.M.100,000 and also a Director of the ... Bad Honnef, which was to be newly incorporated. In this connection they falsely pretended to the witness Braun already having paid up themselves the original capital shares in the amount of D.M.100,000 each ... In fact, they had not paid up any capital shares ... 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 D.M.100,000 on December 22, 1983 into the company account mentioned to him."

These facts make it quite clear that the untruthful affirmation referred to in the first charge involved knowledge of its untruth. Consequently the third respondent is, in my view,

entitled to rely upon s. 563(2) of the Companies (N.S.W.) Code in

As indicated, the third respondent also relies upon s. 178 B of the Crimes Act, 1900. The appellant's only contention as to the unavailability of this section was based upon its having a similar requirement that the relevant statements should have been false to the knowledge of the appellants. As I have already held that the factual material sufficiently makes this allegation, it follows that the appellant's submission must be

Accordingly, I hold that the appeal in relation to the

I have had the advantage of reading the Reasons for Judgment of Fox, J. I agree, respectfully, with his Honour's reasons and with his conclusion that the appeal on these charges

I agree, for the reasons given by Fox and Gummow, JJ.

that the cross appeals in respect of these charges should be

I agree with Gummow, J. that the cross appeal in respect of these charges should fail. I agree generally with his Honour's reasons and would wish only to make the following

States) Act, 1966 requires that there shall be produced to the Magistrate, as part of the material to be considered by him in determining whether he is satisfied that the person involved is liable to be surrendered to the foreign state, "A duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested". This statement is to be contrasted with the statement that must also be produced to him pursuant to s. 17(6)(a)(i)(B) "Setting out a description of each offence for which the surrender of a person is requested and the penalty

It is clear that considerably more is required to be placed before the Magistrate under ss (C) than under ss (B). The question is what factual detail do the words of this sub-section require in the statement? For instance, is it necessary to allege all primary facts from which an inference of fraudulent intent might be drawn at a hearing of the charge or, conversely,

is it sufficient merely to allege, in terms, the fraudulent

intent? It is clear that the document 1s a very important one. Upon the material contained in it, the Magistrate will determine, (inter alia) whether an "extradition crime" has been sufficiently demonstrated to produce satisfaction that the accused is liable to be surrended to the requesting state. If that be so, he is further liable to be committed to prison by the Magistrate to await the Attorney General's warrant. Although the proceedings before the Magistrate are 1n no way equivalent to a trial of the offence, nor indeed, even to committal proceedings, they, nevertheless, involve the liberty of the subject. It is, in my view, in every way reasonable, that ss (C) should be read as placing a definite onus upon the requesting state to produce

clear allegations of fact to support the basic proposition that on those facts or their equivalent, the accused would have

committed an offence under Australian law in the relevant part of

In determining the requirements of the sub-section, much help is to be gained, in my view, by a consideration of what

was said by Lord Parker, C.J. in Regina v. Governor of Brixton

Prison Ex Parte Gardner (1968) 2 Q.B. 399. The section there

under consideration was s. 3(1) of the Fugitive Offenders Act, 1967 U.K., which provided as follows:-

"For the purposes of this Act an offence of which a person is accused ... in a designated Commonwealth country ... is a relevant offence if - (a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of

the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of 12 months or any greater punishment ... and (c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom. ..."

significantly similar in effect to ss. 4(1)A and 4(1)B, set out

"Mr. Dunn submits that the offences to which the authority to proceed in the present case relates are those set out in the authority to proceed itself, namely the perfectly general description of the offences of obtaining money by false pretences ...

In my judgment Mr. Dunn's argument gives really no effect to the provisions of section 3(1)(c). It seems to me that what is clearly contemplated here is that a request coming forward to the Secretary of State must set out in some form, and no doubt the most usual form is the warrant or warrants for arrest, the offence or offences of which the fugitive is accused in this case in New Zealand. Not only must 1t supply a general description which will fulfil the provisions of section 3(1)(a) but it must condescend to sufficient detail to enable the matter to be considered under section 3(1)(c)."

In the same case, Edmund Davies, L.J. expressed the

following views in relation to s. 3(1)(c) (at p. 416):-

"'The offence' there referred to must mean the offence charged in New Zealand, and 'the act or omission' refers to the manner or means whereby the offence so charged in New Zealand was committed. This involves examination of the particulars of the offence charged in New Zealand

The learned trial judge, in my view quite correctly,

considered that these passages were of assistance in determining

the nature and extent of the material required to be placed

before the Magistrate under s. 17(6)(a){i)C, to enable him to determine whether there was a sufficient indication of the

I am quite satisfied that his Honour was correct in holding that the material supplied was insufficient for this purpose. There were, obviously, twenty separate charges laid in Germany. It would seem they all were akin to charges of what is commonly described, in New South Wales, as "false pretences". The gravamen of each charge would obviously be the making of the particular false pretence. Although sub-section (C) clearly does not require that the whole of the available evidentiary material be laid before the Magistrate in Australia, it does, in my view, at least require that precise allegations of the "manner and means" of the making of the basic fraudulent representations be provided. The method of presentation of the material adopted in relation to these charges, being no more than a compendious assertion of fraudulent behaviour coupled with terse particulars given in respect of the individual offences was, in my view, quite inadequate as a compliance with sub-section (C). It was not open to the Magistrate, on this material, to find that the

appellants should be surrendered in respect of these charges.

Accordingly, I would dismiss the appeal as to the first, second and third charges. I would allow the cross-appeal as to charges 4(a) and (b) and dismiss the cross-appeal in

I certify that this and the \ preceding pages are a true copy of the reasons for judgment herein of his Honour, Mr. Justice M.L. Foster.

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

instructed by Guy Betar & Co., Solicitors, Bondi Junction.

H. K. Roberts, Esq., Crown Solicitor for New South Wales