von Arnim v Federal Republic of Germany [2005] FCA 662 | Case summary

Federal Court of Australia|2005-06-03|Before: Finkelstein J

REASONS FOR JUDGMENT 1 On 1 September 1994 the Local Court in Stuttgart issued a warrant for the arrest of the applicant, Dr von Arnim, a medical practitioner, who was then living in the Philippines. It was alleged that Dr von Arnim had committed in aggregate 53 offences of fraud, attempted fraud and falsification of documents. The alleged offences were, in the case of fraud, against s 263 of the German Penal Code, in the case of attempted fraud against s 263 in combination with ss 22 and 23 of the Penal Code and in the case of falsification of documents against s 267 in combination with s 52 of the Penal Code. On application by Dr von Arnim to the Higher Regional Court of Stuttgart the falsification of documents charges in the warrant were "revoked" on 29 September 1994. 2 In a note dated 20 February 1996 (the authenticity of which is challenged by the applicant) the German Embassy requested the extradition of Dr von Arnim. Following the delivery of the request, Germany obtained under s 12 of the Extradition Act 1988 (Cth) a provisional warrant for the arrest of Dr von Arnim. The Attorney-General was notified immediately that the magistrate had issued the warrant. On 21 December 1998 Dr von Arnim was arrested on the authority of the warrant. Then on 10 May 1999 a magistrate determined under s 19 that Dr von Arnim was eligible for surrender to Germany. He was kept in prison for 2˝ years. On 11 July 2001 the German Embassy informed the Attorney-General's department that the German warrant of arrest against Dr von Arnim had been dismissed by the Stuttgart District Court. This brought the extradition request to an end requiring Dr von Arnim's release from prison. He was released on 12 July 2001. 3 In this proceeding Dr von Arnim contends that he was not liable to be extradited to Germany and that his arrest and imprisonment were wrongful. He contends that the Commonwealth and the Minister for Justice and Customs (whom it is alleged procured Dr von Arnim's imprisonment) are liable in damages for the tort of false imprisonment. The principal, but not the sole, basis for this claim is that Germany had not made a valid request for Dr von Arnim's extradition because the German arrest warrant had been revoked. There are also independent claims in negligence. It is alleged that the Commonwealth and the Minister were under a duty to determine whether Dr von Arnim was liable to be extradited and, in breach of that duty, failed to determine that he was not so liable. It is also alleged that both the Minister and the Commonwealth were under a duty to take the steps required by the Extradition Act with due diligence and that they failed in that duty. As a result, Dr von Arnim claims that he was unnecessarily imprisoned for two and a half years and that his health suffered as a result. He claims damages for personal injury. 4 With regard to the false imprisonment claim it is important to note that Dr von Arnim was arrested and imprisoned as a result of the execution of the two warrants issued by a magistrate. The first was the provisional arrest warrant issued under s 12 of the Extradition Act. The second was the surrender warrant issued under s 19(9) of the same Act following the Minister's determination under s 19(1) that Dr von Arnim was eligible for surrender to Germany. Each warrant appeared on its face to have been regularly issued. Moreover, neither warrant has been set aside by a court of competent jurisdiction, although Dr von Arnim made an application under s 21 of the Extradition Act to review the magistrate's decision: von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529. 5 Notwithstanding the foregoing, this case has been argued on two potentially false assumptions. The first assumption is that it is permissible in this proceeding (a civil proceeding) to collaterally challenge the validity (and perhaps the legal effect) of the two warrants and, if the challenge be successful, to allege as unlawful what would otherwise be the lawful imprisonment of Dr von Arnim. It is sometimes possible to challenge an administrative decision in proceedings other than for judicial review: R v Wicks [1998] AC 92, 117; Boddington v British Transport Police [1999] 2 AC 143, 164. It does not automatically follow, however, that an administrative decision that is wrong in law is of no effect in the absence of an order that the decision be set aside: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 616. In particular, it is by no means clear that a warrant which on its face appears to have been regularly issued can be disregarded. Indeed, the few cases I have looked at on this issue suggest that the opposite is likely to be true: Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461, 483; Hadkinson v Hadkinson [1952] P 285, 288; R v Oldham Justices; Ex parte Cawley [1997] QB 1, 13. 6 The second assumption upon which this case has proceeded is that if Dr von Arnim is able to show that the two warrants should not have been issued, that will make good his claim that his imprisonment was unlawful. This assumption is probably false. According to the authorities there can be no action for false imprisonment if the imprisonment is in execution of an order which appears to have been regularly made by a judicial officer, even if the order is without jurisdiction: City of London v Cox (1867) LR 2 HL 239, 263; Ward v Murphy (1937) 38 SR (NSW) 85, 97. See also Andrew v Marris (1841) 1 QB 3, 16 per Lord Denman CJ: ("There would therefore be something very unreasonable in the law if it placed him in the position of being punishable by the court for disobedience, and at the same time suable by the party for obedience to the warrant"). The proper remedy in that situation is an action for malicious prosecution or malicious abuse of legal process: Lock v Ashton (1848) 12 QB 871, 876-877 [116 ER 1097, 1099]; Austin v Dowling (1870) LR 5 CP 534, 540; Mock Sing v Dat (1902) 2 SR(NSW) 333, 340; Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461, 476. 7 The attack on the warrants arises in the following way. By reg 4 of the Extradition (Federal Republic of Germany) Regulations 1990, Germany is declared to be an "extradition country" for the purposes of the Extradition Act and by reg 5 the Extradition Act "applies in relation to [Germany] subject to the Treaty between Australia and [Germany] concerning Extradition done at Bonn on 14 April 1987". Several articles in the Treaty should be noted. Article 9(1) provides that a request for extradition "shall be in writing". Article 9(2) states that the request shall be accompanied by certain information, including a copy of the relevant provisions of the statute or a statement of the relevant law (if any) creating the extraditable offence as well as with "a statement of the punishment that can be imposed". 8 The magistrate who issued the provisional warrant for Dr von Arnim's arrest had to be satisfied that Dr von Arnim was an "extraditable person": s 12(1)(b). The definition of an "extraditable person" is found in s 6. One requirement is that there is in force at the time of the application for the provisional arrest warrant "a warrant … for the arrest of [the] person in relation to an offence or offences against the law of a country that the person is accused of having committed": s 6(a)(i). Dr von Arnim contends that this requirement was not satisfied and, as a result, the process that was put in train was unlawful. 9 According to Dr von Arnim the requirement was not satisfied because there was no warrant for his arrest in Germany. It is not in dispute that in September 1994 the Stuttgart Local Court had issued a warrant for his arrest in relation to 15 charges of fraudulent representation, 34 charges of attempting fraudulent representation and 4 charges of fabricating false documents. Nor is it in dispute that on 29 December 1994 the Higher Regional Court "revoked" the arrest warrant in relation to one of the falsification charges. Dr von Arnim contends that as a result of the revocation order, the original arrest warrant no longer remained in force. It is on this basis that Dr von Arnim contends that he did not meet the criteria of being an "extraditable person". 10 Even if the submission about the German warrant is correct, it is not clear how it assists Dr von Arnim's case. According to s 12(1)(b) of the Extradition Act, a magistrate is entitled to issue a provisional arrest warrant if "the magistrate is satisfied, on the basis of information given by affidavit, that the person [the subject of the application] is an extraditable person …". That is to say, the power to issue a provisional warrant is dependent on the Magistrate being "satisfied" that the requested person is an "extraditable person" and not on the fact of the requested person being an "extraditable person". Decisions as to "satisfaction" can only be challenged on limited grounds. For example, the decision may be challenged if the magistrate has misdirected himself in law, has failed to consider relevant matters, has taken into account irrelevant matters or if his decision is irrational: Buck v Bavone (1976) 135 CLR 110, 118-119. No attempt has been made to attack the magistrate's decision on any of these grounds. 11 There is, in any event, no substance to Dr von Arnim's claim that the Local Court warrant had been revoked. To make good this point, which is wholly dependent upon the content of German law, requires expert evidence on German law regarding this topic. During the hearing I pointed out that in the absence of such evidence, Dr von Arnim would not be able to substantiate his assertion. Nevertheless, some documents (including a certified translation of the decision of the Higher Regional Court) were tendered without objection and I have been asked to rule on the issue. What the evidence shows is that Dr von Arnim had lodged an appeal with the Higher Regional Court in relation to the charges laid against him. On 29 December 1994 that complaint was upheld in part by the revocation of one charge relating to the falsification of a document; the falsification charge was "revoked" because the Higher Regional Court was of the view that the elements of the offence could not be made out. In respect of the other changes, the Higher Regional Court dismissed the appeal. There is nothing in the decision of the Higher Regional Court which supports the argument that the arrest warrant ceased to have effect. Indeed the final paragraph of the court's decision states that "[w]ith regard to the reason for arrest, the same continues to apply as was stated in the order of the Criminal Division dated 9th December 1994." To the extent that I am required to apply local law to resolve this issue (as to which see The Parchim [1918] AC 157, 161 where the Privy Council said that "unless the contrary be proved the general law of a foreign country is the same as the English Law") there is no local rule that supports Dr von Arnim's case. 12 The next attack arises in the following way. The steps that lead to the issue of a warrant under s 19 are these. First, the Attorney-General must receive a request in writing from an extradition country for the surrender of a person to that country: see s 16(1) and the definition of "extradition request" in s 5. Second, the Attorney-General must form the opinion that (1) the requested person is an "extraditable person" in relation to the extradition country and (2) if the conduct of the person constituting the extradition offence had taken place in Australia, it would have constituted an extradition offence. The Attorney-General must also be satisfied that there is no "extradition objection" in relation to the extradition offence to which surrender is sought: s 16(2). Third, the Attorney-General must give notice to the magistrate that the extradition request has been received: s 16(1). Fourth, a magistrate must resolve any dispute as to whether the person is eligible for surrender: s 19(1). A person is only eligible for surrender if the conditions in s 19(2) are satisfied. Fifth, if the magistrate determines that the person is eligible for surrender, the magistrate must "by warrant in the statutory form, order that the [requested] person be committed to prison to await surrender … or release" pursuant to an order under sub-section 22(5): s 19(9)(a). Section 22 requires the Attorney-General, as soon as is reasonably practicable after the person becomes an "eligible person", to determine whether the person is to be surrendered. If for any reason the Attorney-General decides that the person should not be surrendered, s 22(5) provides that the Attorney-General must order the release of the person. 13 Dr von Arnim says that the first step in this process did not occur. He contends that the Attorney-General did not receive a request for his surrender from Germany. Consequently, he says that (1) the Attorney-General could not give a notice under s 16 and (2) there was no legal basis for an enquiry before a magistrate to determine whether he was eligible for surrender. 14 Dr von Arnim developed this argument in the following way. He concedes that the Attorney-General received what appeared to be an extradition request from Germany. However, he calls into question the authenticity of the document and, more importantly, challenges the document on the basis that it does not constitute a valid extradition request for the purposes of either the Extradition Act or the Treaty between Australia and Germany. 15 I am bound to say that the challenge to the authenticity of the request is nothing short of hopeless. I suppose the argument was in some way encouraged by the fact that the Commonwealth was unable to produce the original request until midway through the trial; it was still however a bold argument to say the least. In any event, as soon as the original was produced Dr von Arnim made no attempt to establish that it was either a forgery or written by a person who lacked the requisite authority. 16 The main attack on the validity of the request was that in order for it to be valid it should have been under seal. Apart from mere assertion, no authority was cited for this proposition. In my view it has no foundation. In the first place the only requirement as to form imposed by the Extradition Act and the Treaty is that the request be in writing. I do not understand this requirement to carry the further obligation that the request be signed or sealed. Second, according to Lord Gore Booth (ed) Satow's Guide to Diplomatic Practice (5th ed, 1979) official communications between representatives of States need not be signed. Such communications have various component parts, the last being a "la courtoisie" or a complimentary phrase: Satow's Guide at [7.11]. The concluding paragraph of the request for Dr von Arnim's extradition reads: "The Embassy of the Federal Republic of Germany avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration." Satow's Guide (at [7.13]) says that with this style of conclusion, "a signature is unnecessary". 17 In any event beneath the concluding paragraph appear in manuscript the letters "L.S.". There is little doubt that this is the abbreviation for "locus sigilli" - the place of the seal. According to the Director of the Administrative and Domestic Law Group in the Department of Foreign Affairs and Trade, Germany on occasion uses the letters "L.S." in diplomatic notes in place of a seal or stamp. So, if a seal were necessary for the request to be valid, the seal was probably supplied. Finally, there is the evidence of several officers from both the Attorney-General's Department and the Department of Foreign Affairs and Trade that it was appropriate and reasonable for the request in the form it was received to be treated as valid. All of these factors lead to the indisputable conclusion that Germany had made a valid request for the extradition of Dr von Arnim and that the Australian authorities were required to deal with it. 18 The next point that Dr von Arnim makes is concerned with the documents that accompanied the formal request for extradition. It will be recalled that according to Art 9 of the Treaty the request must be accompanied by "a statement of the relevant law [under which the requested person was charged] and … a statement of the punishment that can be imposed". Dr von Arnim contends that a full statement of the punishment he faced in Germany was not provided to the Australian government. As a result he says that the extradition process was flawed and the warrants illegal. 19 The two documents that accompanied the request were the German warrant of arrest and a document from the Public Prosecutor of Stuttgart which certifies Dr von Arnim's identity and describes the offences for which his extradition was sought. These documents provided the details of the particular provisions said to have been contravened by Dr von Arnim, as well as the penalty that could be imposed for those contraventions. The warrant details the charges, identifies and quotes the sections of the German Penal Code said to have been contravened and describes the applicable penalty, which in each case is "a term of imprisonment not exceeding five years or to a fine". The certificate states that the extradition of Dr von Arnim is sought in respect of all the charges contained in the warrant apart from the falsification charges which had been "revoked" by the Higher Regional Court. The certificate by reference to specific sections provides an explanation of how punishment is imposed for contraventions or attempted contraventions of the Penal Code. It also explains how "compound punishment" is meted out. Compound punishment deals with the situation where penalties are imposed for related offences. 20 Dr von Arnim does not suggest that the information in these documents fails to satisfy the requirements of the Treaty. The problem comes about because another document, dated 4 November 1999 (which also emanates from the Public Prosecutor's office) provides further information about the penalties that Dr von Arnim faced. This document is addressed to the Regional Court in Stuttgart. It states that in respect of several identified charges "representing aggravated instances, on the basis of which [Dr von Arnim] is to be prohibited from practising his profession as [a] general practitioner". Later the following appears: "According to the charge, the accused is answerable before the Court in relation to 16 offences of fraud and 32 offences of attempted fraud pursuant to Section 263 para 1, para 2, 22, 23, para 1.53 "StGB", with four cases representing aggravated cases of fraud (cases 45-48). The severity of these latter cases is caused by the amount of pecuniary benefit that the accused obtained or attempted to obtain as well as by the sophistication, and even professionalism, of his fraudulent acts by using falsified facsimiles and photocopies, which however do not constitute the offence of falsification of documents. The prerequisites for prohibiting the accused from practising his profession are given pursuant to Section 70 "StGB"." 21 As I have already said in another context, no attempt was made to prove the contents of German law. Nevertheless I was provided with a copy of the German Penal Code as in force in November 1998 and it was not suggested that I should ignore it. Having read the Code, s 70 appears to be the only relevant provision. It provides: "If someone is convicted of an unlawful act, which he committed in abuse of his profession or trade or in gross violation of the duties associated therewith, … then the court may prohibit him from engaging in the profession … for a period of from one year to five years … The order of prohibition of engagement in a profession may be permanent if it can be expected that the statutory maximum term will not suffice to avert the danger posed by the perpetrator." 22 The charges that were laid against Dr von Arnim arose out of his dealings with his patients. In effect it was alleged that he billed his clients excessive amounts, and that he sometimes made claims for services that he did not perform. The fraud charges were laid when his patients paid the bill. The attempt charges were laid when the fraud was discovered before payment. In these circumstances it seems that the original specification of the penalties was incomplete. There was at least the possibility that Dr von Arnim would be dealt with more severely than the warrant and the Public Prosecutor's certificate suggested. The question is what follows from that incompleteness. 23 According to Dr von Arnim two things follow. First he says that he was at risk of being charged with an offence other than the offence for which extradition was sought. I will explain the significance of this. It is universally accepted that, subject to limited exceptions, a fugitive should not be surrendered if he is to be tried for an offence other than an offence for which his extradition is sought. So, before extradition is ordered the requesting country's adherence to the principal, usually referred to as the speciality rule, must be established. Often it is established by the requesting country providing a speciality assurance. It may be established in other ways. In Australia the matter is dealt with by ss 22(1)(d)(ii) and 22(3)(d) of the Extradition Act. I think the point that Dr von Arnim makes is that even if, as a result of the operation of s 22(3)(d), Germany is taken to have given a speciality assurance, the inference to be drawn is that Germany would not honour the assurance. 24 It is, I think, apparent that this argument proceeds upon a false premise. If punishment were to be imposed under s 70 of the German Penal Code it would be punishment for offences in respect of which Dr von Arnim's extradition was sought. Put another way, s 70 would come into operation upon Dr von Arnim's conviction for one of the surrender offences. It is the seriousness of the offence that would bring the section into play. That possibility does not attract the speciality rule which is confined in its operation to ensuring no new charges are laid against an extradited person. 25 Dr von Arnim's second submission is that the extradition request is invalid if the information that is required by the Treaty is not provided by the extraditing country. No case was cited in support of this proposition and I must say that if I were to accept it, it would lead to substantial difficulties between Australia and the States with which it has extradition treaties. Be that as it may, I do not accept that upon a proper construction of the Treaty the provision of insufficient information under Art 9 will invalidate an extradition request. For present purposes it may be accepted, though it may not be correct, that certain kinds of information are so critical to an extradition request that their absence could lead to the conclusion that there has been no request. For instance, if the fugitive is not identified in the extradition request it is difficult to see how there could be a request for the extradition of a person. It does not follow, however, that the request will be invalid if there is a deficiency in the information that is provided about potential penalties. First, the Treaty does not say that this will be the result. Second, Art 11(1) should be noted. This article provides that "[i]f the Requested State considers that the information furnished in support of the request for the extradition of a person claimed is not sufficient to fulfil the requirements of its law with respect to extradition, that State may request that additional information be furnished within such time as that State specifies". This suggests that incomplete information by reference to local laws dealing with extradition does not lead to the invalidity of the request. It is but a short step to conclude that incompleteness measured against the requirements of the Treaty itself will not result in invalidity. To the contrary, when incomplete information has been provided it is implicit that the requested State need not act on the extradition request until the omitted information has been provided. That is a far cry from holding that incomplete information results in the invalidity of the request itself. 26 There is yet another basis upon which Dr von Arnim rests his claim that his imprisonment was unlawful. Section 22(2) provides that the Attorney-General must "as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered". The expression "eligible person" is defined in s 22(1) to mean for present purposes a person who has been committed to prison by a magistrate under s 19(9). Dr von Arnim says that the lawfulness of his detention under the warrant issued under s 19(9)(a) was subject to a limitation that the Attorney-General was required "as soon as it is reasonably practicable, having regard to the circumstances" to determine whether he should be surrendered. He argues that this requirement was breached because the Attorney-General did not make her determination as soon as was reasonably practicable and that consequently his detention became unlawful. 27 There are two answers to this submission. The first is that even if the Attorney-General failed to act with due expedition, the warrant issued under s 19(9) did not cease to have effect. A warrant issued under the section continues in force until set aside by a court of competent jurisdiction (for example on an application to review the magistrate's order under s 21) or the warrant is spent following the extradition of the requested person or an order made by the Attorney-General under s 22(5). The remedy for a failure by the Attorney-General to act with due expedition is mandamus. 28 More importantly, however, and this is the second answer to the submission, while consideration of Dr von Arnim's position had gone on for some fourteen months, the cause of the delay rests solely with Dr von Arnim. During the period, Dr von Arnim's solicitor engaged in voluminous correspondence with the Attorney-General's Department in a sustained attempt to ensure that her client was not extradited to Germany. As things turned out she was successful in her endeavours. But her client remained in prison because no decision on his extradition could be made. The reason is this. The solicitor put forward numerous reasons why Dr von Arnim should not be extradited. There were assertions that the extradition process was flawed, questions about the nature and status of legal proceedings involving Dr von Arnim in Germany and whether they will effect Germany's request for extradition, the health of her client, the difficulties faced by Dr von Arnim's wife in gaining German residency, whether the German authorities would provide a doctor to accompany Dr von Arnim to Germany if he were extradited and so on and so forth. Each reason had to be considered. This process was made all the more difficult because Dr von Arnim's solicitor provided inaccurate translations of German documents. On many occasions enquiries had to be made of the German authorities. This all took time. I have prepared a chronology setting out the communications which will appear in an appendix to these reasons. The chronology shows that there was no unreasonable delay in the consideration of Dr von Arnim's eligibility for surrender. It may be true that the consideration of his case took more time than usual. That was the result of the many points raised by Dr von Arnim through his solicitor. 29 The findings made thus far should dispose of the case in the respondents' favour. Nevertheless I am concerned that there may be an outstanding issue, or an outstanding cause of action, which has not been dealt with or not been disposed of by my findings. My uncertainty arises from the complexity of the Statement of Claim and Dr von Arnim's submissions, which, in no small measure, depart from the pleadings. I will leave it to Dr von Arnim's counsel to raise any outstanding issues before I pronounce final orders. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Counsel for the Applicant: Mr B Monotti

Solicitor for the Applicant: Ms K Moorhouse-Perks

Counsel for the 2nd & 3rd Respondents: Mr B Walters SC Mr L Maher

Solicitor for the 2nd & 3rd Respondents: Australian Government Solicitor

Date of Hearing: 1, 2, 3 June 2004 3, 29 September 2004

Date of Judgment: 3 June 2005

Chronology 10 May 1999 Magistrate determines that Dr von Arnim is eligible for surrender to the Federal Republic of Germany on all fraud charges. Warrant ordering committal to prison to await surrender issued under s 19(9) of the Extradition Act. 11 May 1999 Dr von Arnim files an application in the Federal Court seeking injunctive relief in respect of the Magistrate's decision: 12 May 1999 Goldberg J dismisses Dr von Arnim's application: see von Arnim v Federal Republic of Germany [1999] FCA 871. 31 May 1999 Dr von Arnim applies to the High Court of Australia for release from prison, asserting diplomatic grounds. 1 June 1999 Hayne J dismisses Dr von Arnim's application. 23 August 1999 Sundberg J dismisses Dr von Arnim's appeal against the Magistrate's decision that Dr von Arnim is eligible for surrender to Germany: see von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529. 2 September 1999 Dr von Arnim appeals to Full Court of the Federal Court from Sundberg J's decision. 25 November 1999 Dr von Arnim discontinues his appeal against Sundberg J's decision. 26 November 1999 The Attorney-General's Department sends a letter to Dr von Arnim's then legal representative advising that:

The discontinuance of Dr von Arnim's appeal means that the matter can be referred to the Minister for Justice and Customs for a determination in accordance with s 22(2) of the Act.
Any submissions to the Minister as to why Dr von Arnim should not be surrendered to Germany should be received by 14 Dec 1999. If there are no submissions, the matter will be referred to the Minister for her consideration "without any unnecessary delay". 1 December 1999 Dr von Arnim makes an application seeking relief in the nature of habeas corpus and an order setting aside his Notice of Discontinuance in the Appeal against the decision of Sundberg J. 3 December 1999 Federal Court allows the appeal against the decision of Sundberg J to continue. 15 December 1999 Goldberg J orders that Dr von Arnim's application for a writ of habeas corpus and his application that he be released on bail pending the hearing of his appeal to the Full Court be dismissed: see von Arnim v Federal Republic of Germany [1999] FCA 1747. 17 May 2000 Dr von Arnim files a Notice of Discontinuance in the appeal against the decision of Sundberg J. 18 May 2000 The Attorney-General's Department writes to Ms Katherine Moorhouse-Perks (Dr von Arnim's current solicitor): The letter advises that:
In view of the fact that Dr von Arnim has withdrawn his appeal against the Magistrate's finding that he is eligible for surrender to Germany, the Minister for Justice under s 22 will determine whether or not Dr von Arnim will be surrendered to Germany.
Any submissions that Dr von Arnim may wish to make should be received no later than 2 June 2000. 31 May 2000 Letter to the Attorney-General's Department from Ms Moorhouse-Perks. On behalf of Dr von Arnim she requests:
A four-week extension in which to file the submissions. Dr von Arnim believes that the information he requires for the submissions will take longer than two weeks to gather. This information includes: (a) evidence from an expert in German Criminal Law regarding whether Dr von Arnim is still an extraditable person in light of the fact that the diplomatic note was not in compliance with the laws of Germany and the offences that he has been charged with have other available forms of punishment; (b) psychiatric evidence; and (c) medical evidence from a diabetes expert.
A copy of the Diplomatic Note No 17 of 20 Feb 1996 (referred to in the Notice under s 16(1) of the Act dated 8 Jan 1999). 19 June 2000 Letter to Attorney-General's Department from Ms Moorhouse-Perks:
Acknowledges receipt of the requested Diplomatic Note.
Notes that the diplomatic note was "not … signed or sealed and that it pre-dated the remainder of the documents to accompany an extradition request by almost two years."
Submits that Dr von Arnim has translated the correspondence from the Attorney-General of the Federal Republic of Germany and that he instructs that the correspondence discloses no request for extradition. Therefore, he requests that the Attorney-General's Department enquire with the relevant German authorities responsible for extradition requests about the status of the request.
A copy of the correspondence from the Attorney-General to the Federal Republic of Germany is enclosed with the letter. 28 June 2000 Letter to Attorney-General's Department from Ms Moorhouse-Perks:
Requests advice on the progress of enquiries from the Attorney-General to the Federal Republic of Germany.
Encloses a further letter Dr von Arnim instructs he has received from the Attorney-General of the German Supreme Court. Dr von Arnim has translated the letter. The letter suggests that the extradition request was not authorised and the charges are to be dismissed.
Includes a medical report from psychiatrist, Dr Lester Walton. This was a preparatory report regarding the impact of extradition on Dr von Arnim's mental fitness.
Includes a medical report from Dr F Martin. The report opines that Dr von Arnim should receive medical attention in transit if extradition occurs.
Requests a further six-week extension for the filing of submissions. 29 June 2000 Facsimile to Ms Moorhouse-Perks from the Attorney-General's Department advising that:
The time for filing of any submission is extended to 7 Aug 2000.
They are still waiting for a response from the German Embassy in relation to the letter forwarded by Ms Moorhouse-Perks on 19 June 2000. This letter would be forwarded to the German authorities. 30 June 2000 Facsimile from the German Embassy to the Attorney-General's Department questioning the accuracy of the translation of a purported diplomatic document and stating that "several parts are simply missing in the German version". The facsimile also states that: "The Federal Republic Germany has not authorised or sent the diplomatic note. Therefore the Attorney General has forwarded the matter to the local OPP at the Regional Court in Stuttgart and instructed them to dismiss the matter once and for all". 25 July 2000 Dr von Arnim lodges an appeal against the decision of the Higher Regional Court of Stuttgart. This is an appeal against the charges that led to the issue of the warrant. 7 August 2000 Dr von Arnim sends to the Attorney-General his submissions in relation to why the Minister should not determine under s 22 that he is eligible for surrender.
Dr von Arnim's primary submission relates to whether there is sufficient evidence for him to stand trial. Secondary issues include family reasons, his health and the "uncertainty of the status of his prosecution in Germany".
The particulars of his submissions include references to: (a) The uncertainty as to Germany's position in respect of Dr von Arnim's extradition. In particular, Dr von Arnim points to: (i) procedural problems with the arrest warrant; (ii) the delay in issuing the provisional arrest warrant; and (iii) the status of his appeal in Stuttgart against the charges that led to the issue of the warrant. (b) whether his time in custody in Australia will be taken into consideration by Germany in relation to any sentence that a German court may impose; (c) Dr von Arnim's health problems. In particular reference is made to Dr von Arnim's mental state and his diabetes and that it would be improper to extradite a person who is unfit to stand trial; and (d) Dr von Arnim's family situation and the effect that his extradition would have on them. The submission highlights difficulties his wife has in gaining German residency and the impact that Dr von Arnim's extradition will have on his children. 24 August 2000 Letter from Ms Moorhouse-Perks to the Attorney-General's Department. The letter notes that:
Dr von Arnim has been detained in Port Phillip Prison since January 1998 and that his imprisonment has not been based on a formally imposed sentence of imprisonment.
Dr von Arnim's belief that Germany is not in fact seeking to extradite him as the diplomatic request was unsigned and the Attorney-General's Department has not "received any affirmative response form the German Authorities".
Dr von Arnim should be immediately released from detention. 4 September 2000 Letter from the Attorney-General's Department to Ms Moorhouse-Perks. The letter advises that:
Dr von Arnim's submissions raise some issues which require comment by the German authorities before the Minister can proceed to making a determination as to whether Dr von Arnim should or should not be surrendered under s 22 of the Act.
As Dr von Arnim is in custody, the determination will proceed as expeditiously as possible to obtain the German authorities' comment.
Neither the Attorney-General nor the Minister for Justice and Customs have the authority to allow for the temporary release of Dr von Arnim because the Act does not authorise a release from detention pending the making of a surrender determination under s 22.
The Embassy is still seeking to extradite Dr von Arnim and at no stage has their position been otherwise. The extradition request was transmitted to Australia from Germany through the proper Diplomatic Channels on 20 February 1996. The absence of a signature from the formal diplomatic note does not affect the validity of the request and the Attorney-General's Department was satisfied that the request had been received through the correct channels. 5 September 2000 Letter from the Attorney-General's Department to the German Embassy requesting that the German authorities respond to the following matters:
The legal process in Germany for ascertaining a person's mental fitness to stand trial and what, if any, measures will be taken by the German authorities to ascertain Dr von Arnim's mental fitness to stand trial if he were to be extradited to Germany.
The nature and status of any German legal proceedings involving Dr von Arnim which are before the Higher Regional Court of Stuttgart and whether any of these proceedings will affect Germany's request for extradition.
Confirmation that the German authorities wish to proceed with the extradition of Dr von Arnim and that the German authorities intend to prosecute him if he is extradited.
An indication of the likely sentence that may be imposed on Dr von Arnim if he were to be successfully prosecuted in Germany in view of the time he has already spent in Australian custody.
The precise situation of Mrs von Arnim's residency or citizenship status in Germany.
Whether the German authorities can provide a doctor, medical officer or a nurse to accompany Dr von Arnim on a flight to Germany if he were extradited. 21 September 2000 Letter from Ms Moorhouse-Perks to Attorney-General's Department which reiterates some of the main points covered in Dr von Arnim's submissions as to why the Minister should not determine under s 22 that Dr von Arnim is eligible for surrender. The letter also raises further issues concerning the validity of Germany's arrest warrant and compliance with the Treaty. 27 September 2000 Facsimile from the German Embassy to the Attorney-General's Department. The facsimile encloses a translation of a letter that the German Embassy received from the German Ministry of Justice. This letter provides the following responses to submissions made on behalf of Dr von Arnim:
There is no indication that Dr von Arnim is no longer a person who can be extradited.
Dr von Arnim has failed to substantiate his claim that he has diplomatic immunity as a member of the World Health Organisation (WHO).
The extradition request was transmitted via the proper diplomatic channels and was in accordance with the Treaty and German law.
Under Art 2(1) of the Treaty, extraditable offences are those which are punishable under the laws of both contracting parties by imprisonment for a maximum period of at least one year. Section 263 of the German Criminal Law (Fraud) (which are the offences with which Dr von Arnim was charged) are punishable by up to 5 years imprisonment. 6 October 2000 Facsimile to the Attorney-General's Department from the Embassy.
In response to a request from the Attorney-General's Department on 4 Oct 2004, the Embassy is seeking authorisation to forward a facsimile to Dr von Arnim. The request was granted.
Confirms that they are still awaiting responses from the relevant German authorities. 26 October 2000 Letter from the German Embassy to the Attorney-General's Department. The letter provides the following answers to the questions raised in the correspondence between the German Embassy and the Attorney-General's Department dated 5 Sep 2004: (a) If Dr von Arnim is ill, a medical officer will determine if he is fit to stand trial. (b) The extradition warrant of arrest complies with the pending proceedings before the Regional Court in Stuttgart. (c) The Prosecutor in Stuttgart intends to prosecute Dr von Arnim otherwise the extradition proceedings would not have been instituted (d) An estimate of any likely sentence in this case would be purely speculative. A charge of fraud is punishable with imprisonment of up to 5 years, and in very serious cases, up to 10 years (section 263, I & II of German Criminal Law). (e) As the spouse of a German citizen, Mrs von Arnim has a right to reside in Germany if the German spouse lives in Germany. (f) The Prosecutor in Stuttgart is presently seeking medical advice from a specialist in relation to any medical precautions that should be put in place for Dr von Arnim's flight back to Germany. 1 November 2000 Letter from Ms Moorhouse-Perks to the Attorney-General's Department. The letter refers to the previous submissions dated 7 Aug 2000, against Dr von Arnim's surrender. In particular:
The letter expands on the validity of the German arrest warrant. The letter states that although the extradition request refers to 50 legally independent acts of fraud, attempted fraud, and of falsification of documents Dr von Arnim can only in fact be prosecuted for 49 offences. Ms Moorhouse-Perks also refers to supporting documents accompanying the extradition request which appended the old warrant of 1 Sep 1994 (which contains 50 charges and not 49 charges).
A Freedom of Information request is made for copies of letters and other written memorandum relevant to the extradition request.
Encloses an unofficial translation of advice from Dr von Arnim's attorney in Germany as well as the German text of that letter. 17 November 2000 Letter from Ms Moorhouse-Perks to Attorney-General's Department. The letter:
States that the Minister is still to make a section 22 determination.
Submits that the Minister, as soon as practicable, should exercise her discretion not to surrender Dr von Arnim for the following reasons: (a) Dr von Arnim has been imprisoned for a total of 33 months, of which 23 months have been pursuant to a provisional arrest for the extradition. According to Dr von Arnim's German lawyer, the German court would be required to take the time in prison into account if the charges were substantiated. (b) The old warrant that accompanied the request for extradition contained 50 charges when Dr von Arnim can only be prosecuted for 49. (c) Dr von Arnim is being detained with convicted criminals, contrary to Art 10 of the International Covenant on Civil and Political Rights. (d) The detriment to the mental and physical health of Dr von Arnim due to his separation from his wife and children is contrary to both international conventions and case law. 17 November 2000 Record of telephone conversation between Ms Moorhouse-Perks and an officer of the Attorney-General's Department who allegedly says: "the Minister's decision may be imminent".

23 November 2000 Letter from Ms Moorhouse-Perks to the Attorney-General's Department.

Refers to the telephone conversation on 17 Nov 2000.
This letter again reiterates Dr von Arnim's submissions, in particular with regards to Dr von Arnim's: (a) continued detention with convicted persons; (b) the length of his detention (being almost 2 years); (c) his continued detention not being in the best interests of his family; and (d) the impact of the continued detention on his mental and physical health.
States that the period in which the Minister must make a determination to surrender Dr von Arnim "namely 'as soon as practicable' [Section 22(2) of the Extradition Act] may have expired."
Advises that Dr von Arnim will commence proceedings for a prerogative remedy against his continued detention in the High Court if he is not released from detention by 29 Nov 2000.
Reminds officers that her client's submissions raise issues that the Minister should properly satisfy herself of before she can exercise her discretion and make her determination.
States there is still no written response from the responsible German authorities confirming that it is "beyond doubt" that Germany is still seeking to extradite Dr von Arnim.
The letter also states that the Minister has not yet arranged for an up to date psychiatric assessment of Dr von Arnim to determine whether he would be fit to stand trial in Germany.
The German authorities have yet to provide responses to the following: (a) the unexplained delay between the purported diplomatic request dated 20 Feb 1996 and the purported arrest warrant issued 7 Dec 1998; (b) how the grounds for the provisional arrest warrant satisfied Art 12 of the Treaty; (c) confirmation that Dr von Arnim's extradition is still being sought, in light of the time that has elapsed since the request for extradition (Oct 1996) and the time in which the Minister could exercise her discretion under s 22 (May 2000); (d) the current status of the proceedings in the Stuttgart Regional Court; and (e) the likely sentence Dr von Arnim might receive upon his surrender and conviction and whether the time already served may exceed any likely sentence. 24 November 2000 Letter from the Attorney-General's Department responding to Ms Moorhouse-Perks letters of 1 Nov, 17 Nov and 23 Nov 2000. The letter advises Ms Moorhouse-Perks that:
The German authorities advised that if it is necessary, a doctor would accompany Dr von Arnim on a flight to Germany.
In response to the submissions concerning 'unreasonable delay' or 'apparent deviation from the procedure prescribed by the Treaty', the Department explained that at the time of the receipt of the extradition request, Dr von Arnim had criminal matters outstanding in Victoria. The usual practice in such circumstances is to delay the commencement of the extradition proceedings until the Australian matters are resolved. While the extradition request was received on 20 Feb 1996, the provisional arrest could only take effect from 21 Dec 1998 following Dr von Arnim's sentencing and release in relation to the local matters in Victoria.
The Minister was advised that all of the supporting documents did not accompany the "diplomatic request". This occurred because the German authorities were requested to make some technical changes to the supporting documents (to ensure that the documents fully complied with the Treaty). The technical changes made to the supporting documents were not considered to affect the Minister's decision of the specific matters in s 16(2) of the Act or the exercise of the Minister's discretion to issue a notice under s 16(1) of the Act.
The Minister was notified that the request for extradition was on the basis of 49 charges, and not 50 charges. The fact that a foreign arrest warrant contains charges that the requesting State is no longer pursuing does not preclude the document from being included with the extradition supporting documents.
The material that was used by the Attorney-General's Department to determine whether the correct diplomatic channels were used is a diplomatic communication between Australia and the foreign country, and therefore confidential. However, as a Freedom of Information request has been made for the above material this information will not be provided here.
Clarifies that the Attorney-General's Department's letter dated 4 Sep 2000, refers only to the absence of a signature as not affecting the validity of the formal diplomatic note; as the diplomatic note bore the letterhead of the German Embassy in Canberra and was conveyed through proper diplomatic channels it met the requirement of transmission as envisaged by Art 21 of the Treaty.
Confirms that all of Dr von Arnim's submissions raised in the correspondence dated 1 Nov 2000, 17 Nov 2000 and 23 Nov 2000 will be brought to the Minister's attention for her consideration.
If Dr von Arnim seeks to make further submissions, he must do so within two weeks. 27 November 2000 Facsimile from the German Embassy to the Attorney-General's Department. The facsimile responds to Dr von Arnim's submissions that he should be accompanied by a doctor during his flight to Germany. It was the Embassy's view that in view of the fact that Dr von Arnim was a medical practitioner he would be able to manage his condition. However the facsimile went on to say that if the Australian authorities have additional information indicating the necessity of Dr von Arnim being accompanied, the Public Prosecutor in Stuttgart will take the necessary precautions. 30 November 2000 Letter from Ms Moorhouse-Perks to the Attorney-General's Department. The letter:
Advises that there will be further submissions made on Dr von Arnim's behalf.
Expresses concern that the responses were received from the Embassy and not the German authorities. Ms Moorhouse-Perks therefore sought confirmation that the requested enquiries were in fact "actually made" to the German authorities responsible for seeking Dr von Arnim's extradition.
Queries whether: (a) in the event that Dr von Arnim is required to travel without a medical officer, enquiries have been made with the proposed airline carrier about whether Dr von Arnim is able to carry his own insulin injections on board; and (b) if for any reason he was not able to take his medication, medical arrangements have been made should he pass into a coma in-flight. 28 November 2000 [sic] Letter from Attorney-General to Ms Moorhouse-Perks. The letter responds to her letter of 30 November 2000. The Attorney-General:
Acknowledges Dr von Arnim's intention to make further submissions and requests that those submissions be received by 11 Dec 2000. The submissions will then be put to the Minister for a s 22 determination.
Acknowledges that Dr von Arnim has been eligible for surrender since May 2000 and are conscious of avoiding any further delays.
Explains that the German authorities provided their response through the Embassy because it is the conduit in Australia for the German authorities. The Embassy translates these responses. Concern was expressed that the s 22 determination may be further delayed if a request for the original responses is made from the German authorities.
The letter acknowledges the submissions relating to the insulin issue and advises that the issue will be addressed if the matter proceeds to surrender. 11 December 2000 Facsimile from Ms Moorhouse-Perks to the Attorney-General's Department. The facsimile attaches Dr von Arnim's further submissions which responds to the German Embassy's comments of 26 Oct 2000 and reiterates and expands on previous submissions. In summary the submission:
In relation to the German Embassy's response of 26 Oct 2000 Dr von Arnim submits: (a)the Minister should not be satisfied with the German authorities' responses to the following issues: (i) "[w]hether Dr von Arnim is being returned to Germany to face trial or for an assessment of his fitness to stand trial contrary to In the Matter of Alfred James Davies [1997] EWHC 671 (30 Jul 1997)?" (ii) whether the extradition of Dr von Arnim is still being sought? (iii) whether adequate medical attention will be provided to Dr von Arnim during his flight if he is surrendered? (iv) that the responses from the Embassy show a predisposition against Dr von Arnim.
Dr von Arnim's further submissions are as follows: (a) despite the recommendations that Dr von Arnim's psychiatric health be determined before the Minister makes a decision to extradite him, no such assessment has taken place; (b) the Minister should consider Dr von Arnim's family and mental health when exercising her discretion to extradite him; (c) the Embassy has not commented on Dr von Arnim's first submissions nor answered the questions posed by the Attorney-General's Department. The only responses from the "German authorities" include: (i) a letter from the Embassy dated 26 Oct 2000; and (ii) an uncertified translation prepared by the Embassy of a letter from the German Ministry for Justice. A copy of the original German language version has not been copied to Dr von Arnim. (d) notes that the Attorney-General relies on the Embassy to pass on and translate its enquiries to the German authorities whereas Dr von Arnim provides the Attorney-General's Department with the original document and a certified translation of that document; (e) questions whether the Minister is satisfied that: (i) the Embassy communicates the Attorney-General's questions to the relevant German authorities; and (ii) the Embassy provides an accurate translation of those responses. (f) submits that the response from the Embassy to the Attorney-General's question (b) is unintelligible. The response was that the: "Nature and seriousness of the pending proceedings before the Regional Court in Stuttgart are concluding by the extradition warrant of arrest which complies completely in its reproach with the indictment of the prosecutor in Stuttgart". (g) submits that the following response to question (c) is only an expression of opinion by the Embassy officer: "Obviously the prosecutor in Stuttgart has the intention to prosecute the accused if he will be extradited. Otherwise the prosecutor in Stuttgart would not have requested the extradition and would not have instituted proceedings against the accused at the Regional Court in Stuttgart". (h) the Embassy's response regarding any arrangements for a medical practitioner to accompany Dr von Arnim is unsatisfactory. Moreover, no information was provided to Dr von Arnim that the airline carrier, and the accompanying custodial officers would permit Dr von Arnim to carry his own [insulin] injections and blood testing equipment; (i) that the warrant for arrest appended to, or supplied with, the diplomatic request seeking extradition for 49 of the 50 charges: (i) contains such errors on its face that it was incapable of authentication; and (ii) failing that submission, the relevant German authorities should provide a speciality assurance and none has been received. (j) the Embassy's response in relation to Mrs von Arnim's German residency was incomplete. Ms Moorhouse-Perks is instructed that there is a requirement for sponsorship and Dr von Arnim will not be able to fulfil that requirement if he is in custody. (k) Dr von Arnim is a person: (i) whose mental health, according to specialists, is likely to be aggravated if he is exposed to stress levels intolerable to him; (ii) who is the father of three children under the age of nine years; (iii) has been held in custody for almost two years with convicted criminals contrary to Art 10 of the International Covenant on Civil and Political Rights; and (iv) has been detained even though the Attorney-General ought to have known of his mental state. For example, in Dr Lester A Walton's report, a copy of which was provided to the Attorney-General, it said that Dr von Arnim: "is … vulnerable to further episodes of disturbed thinking". (l) The Minister should have regard to Art 23 of the International Covenant on Civil and Political Rights which provides that: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." Dr von Arnim submits that his family unit is not being protected by the State and that the continued separation of Dr von Arnim from his family is having a detrimental effect on them; (m) The Minister should also have regard to Arts 3.1 and 9.3 of the International Convention on the Rights of the Child as well as the decision of Ah Hin Teoh; Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, and the impact that Dr von Arnim's extradition will have on his children. It is further submitted that the effect of such separation would be inhuman and cruel; (n) Mrs von Arnim also made submissions to the Attorney-General. In particular, Mrs von Arnim submits that: (i) there are three children aged 8, 7 and 6. The children had been separated from their father for 33 months and according to Mrs von Arnim, the children: "are afraid to change home because they think their father may not find them if they move home. They often say they wish their dad would come back and they could be a whole family again". (ii) she has no savings with which to travel to Germany and no support (neither financial or emotional) in Germany; (iii) she is suffering from depression which she believes is affecting her children. The depression, was brought on partly by the lack of any support in parenting duties whilst Dr von Arnim has been held in custody; and (iv) the children speak very little German and have thrived in Australia, settling into a secure routine of school friends, family and friends in Forest Hill, and the church community. The children had also told her that they did not want to leave Australia to live in Germany. (o) In view of the above it is submitted that the Minister should exercise her discretion and determine not to surrender Dr von Arnim. 16 January 2001 Letter from Ms Moorhouse-Perks to the Attorney-General's Department which submits that:

Extradition Act 1988(Cth)ss 6, 12, 16, 19, 22

von Arnim v Federal Republic of Germany

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Cited By (2)