17 ALD 149; 38 A Crim R 358; 86 ALR 464; 1988 WL 860993

Wiest v Director of Public Prosecutions and AnotherAn application for special leave to appeal to the High Court of Australia wasrefused on 17 February 1989.

Sheppard , Burchett and Gummow JJ

General Division: New South Wales District Registry

14 September 1988, 15 September 1988, 7 October 1988, 21 December 1988

Extradition - Documentation for - Requisition by foreign government for surrender of fugitive - Fugitive tried in absentia - Hearing before magistrate - Documentation needed to prove that fugitive has committed extradition crime - Whether statement which refers to or incorporates information relating to the terms of the warrant issued in foreign country for arrest of fugitive and the nature of the offences for which surrender of fugitive is sought may comply with requirement that statement be furnished setting out all acts or omissions in respect of which surrender is sought - Whether evidence may be called relating to state of mind of fugitive - Whether person who leaves foreign country voluntarily during trial and before conviction is a person who has been convicted in his absence - "Acts or omissions" - Extradition (Foreign States) Act 1966 (Cth), ss 4(3), 17(6)

Estoppel - Extradition - Proceedings before magistrate pursuant to Extradition (Foreign States) Act 1966 (Cth) - Whether proceedings judicial or administrative - Whether principles of res judicata, issue estoppel or equitable estoppel apply to proceedings - Whether dismissal of proceedings because of defect in documents presented in support of application can create an issue estoppel or res judicata thereby preventing a further successful application

The appellant was charged with offences against the laws of the Federal Republic of Germany (Germany). During his trial he left Germany and came to Australia. In his absence he was convicted of the offences charged.

Once it was discovered that he was in Australia he was arrested and proceedings for his extradition to Germany to serve a sentence of imprisonment were commenced pursuant to s 17(6) of the Extradition (Foreign States) Act 1966 (Cth) (the Act). A magistrate ordered that the appellant should be released because an undertaking tendered to the magistrate did not satisfy the requirements of s 13(2) of the Act. The appellant was re-arrested and a second proceeding was commenced under the Act in which the defect identified in the original proceeding was overcome.

The appellant sought orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to restrain proceedings on the warrant pursuant to which he had been re-arrested. The application was dismissed by Davies J. In the course of the second extradition proceeding the magistrate committed the appellant to prison. The appellant sought to have this decision reviewed. The application was dismissed by Pincus J. The appellant appealed against both decisions. The appeals were heard together.

Held, dismissing the appeals: (1) By Sheppard and Gummow JJ, Burchett J *473 dissenting. The appellant was not convicted in his absence within the meaning of s 4(3) of the Act, but in view of the previous conduct of the extradition proceedings it was not now open to the respondents to treat the case as one to which s 4(3) and s 17(6)(a)(i) did not apply.

(2) Section 17(6) is the only relevant provision of the Act to which s 4(3) applies; it follows that there will be cases where persons tried and convicted in their absence may be extradited from Australia not for trial but for the execution of a sentence.

(3) In its operation in relation to s 17(6)(a), s 4(3) of the Act achieves the result that mere proof of conviction which resulted from trial in absentia of the fugitive may not be a sufficient indication that the fugitive has committed an extradition crime. What is required is that documentation which has to be produced in the case of a fugitive accused of an extradition crime, that is to say, the foreign warrant of arrest, contains a description of each offence and the penalty applicable, and a written statement of all the acts or omissions in respect of which the surrender of the fugitive is requested.

(4) The "acts or omissions" referred to in s 17(6)(a)(i)(c) of the Act are the elements or ingredients of the offence and not the particular evidence adduced to prove those acts or omissions.

(5) A statement may comply with s 17(6)(a)(i)(c) although it makes some reference to or incorporates information in other materials produced to satisfy the requirements of s 17(6)(a)(i)(A) and (B).

(6) Section 17(6A) of the Act precludes the giving of evidence as to the state of mind of the person whose extradition is sought.

(7) The only thing necessarily established by the magistrate who dealt with the matter on the first occasion was that the requirements of s 13(2) of the Act had not been satisfied. His decision to discharge the appellant pursuant to s 17(6) did not create an issue estoppel or res judicata upon which the appellant was entitled to rely before the magistrate who dealt with the subsequent application.

(8) The functions exercised by magistrates under s 17 of the Act are executive or administrative functions exercised by them as persona designatae.

(9) The issue of the second warrant did not constitute an abuse of process or power.

(10) Sections 17A and 18 of the Act have displaced the provisions of the Administrative Decisions (Judicial Review) Act in relation to the review of the decisions of a magistrate specified in those sections.

Appeals

M S WeinbergQC and A S Martin, for the appellant.Estoppel by Record. The Federal Republic of Germany, having failed to establish the pre-conditions for a finding that the appellant was liable to extradition in respect of the matters alleged, ought not to have been permitted to relitigate that issue before a different magistrate.

This follows from the principles of: (i) res judicata; (ii) issue estoppel; (iii) abuse of process.

Counsel for the Federal Republic closed his case after having the specific deficiency in his client's case drawn forcefully to his attention by counsel for the appellant. Counsel did not then seek an adjournment to rectify the matter, but stood firm in his submission that all necessary proofs had been tendered. The Federal Republic is bound by the actions of its counsel, and *474 cannot be heard to argue for a re-hearing of the case because its counsel erred.

When the matter came on for further submissions on 27 April 1988, the Federal Republic sought leave to reopen its case. It had by then become clear that what counsel for the appellant had submitted to the magistrate on 5 February 1988, as to the deficiency of the Federal Republic's proofs, was entirely correct.

The magistrate heard full argument regarding the principles governing leave to reopen and properly refused leave to reopen.

The failure by the Federal Republic to prove adherence to the specialty principle as required by s 13(2) of the Extradition (Foreign States) Act was not a mere failure to satisfy a formality. The requirements of s 13(2) are fundamental to extradition, more so now that the rights of fugitives are so circumscribed by the legislative scheme in force.

To describe the proceedings before the magistrate as administrative in character, and not "final", is to wholly misconceive their nature. The appellant was convicted in his absence by the Local Court in Bonn, and, it appears, was denied the right to present any defence at all to that Court. If the appellant is extradited back to Germany, it will not be to face a new trial in which he can present a defence. His trial is over. So also is his appeal. For all practical purposes, the decision of the magistrate is as final a decision as one could contemplate - a finding that the appellant is liable to be extradited means that he will serve the sentence imposed upon him. Principles of estoppel by record can, and must, operate in respect of decisions of this importance and finality.

Nothing exists in the present case remotely approaching the strict criteria governing the exercise of the discretion of a judge or magistrate to allow the prosecution to reopen its case after the close of the case for the defence: see generally R v Chin (1985) 157 CLR 671 at 676. The difficulty confronting the Federal Republic was readily and actually foreseen by its counsel, and he elected to carry on regardless. The decision by the magistrate to refuse leave to reopen and to order that the appellant be released was capable of being reviewed by this Court. The Federal Republic was aware of this. It took the view that it would proceed by way of new extradition proceedings rather than seeking to test the magistrate's ruling as provided for by the Act. In these particular circumstances, such conduct on the part of the Federal Republic constituted, and constitutes an abuse of process because it sought to override a valid and final determination by a magistrate which could not itself be the subject of any judicial criticism. The proper course had there been any doubt about the correctness of the magistrate's decision would have been to test the magistrate's decision refusing leave to reopen the case for the Federal Republic. The jurisdiction to scrutinise that decision is conferred expressly, and in terms, upon the Federal Court. That jurisdiction is not to be circumvented by the subterfuge of a second extradition hearing.

The use of the Local Court judgment. The tender of the judgment of the Local Court in Bonn is not, and cannot be, a "duly authenticated statement in writing setting out all the acts or omissions in respect of which the *475 surrender of the person is requested" pursuant to s 17(6)(a)(i)(C) of the Extradition (Foreign States) Act. This judgment, whether alone or in conjunction with the foreign warrant and its recitals, cannot be regarded as any proper basis for satisfaction by a magistrate that an "extradition" crime has been committed.

To permit a document such as the judgment of the Local Court to be used for this purpose makes a mockery of s 13 of the Act. It is impossible to know precisely which acts or omissions contained in that document are those which are covered by the specialty principle. It also prevents the fugitive from exercising fully his rights to adduce evidence (subject only to the qualification contained within s 17(6A) of the Act). It is clear that the Federal Republic is not suggesting that each and every act or omission alleged to have been committed by the appellant, whether expressly or impliedly, in the judgment of the Local Court is a relevant act or omission for the purposes of the Extradition (Foreign States) Act. How then is a magistrate to know which of those many alleged acts or omissions may be controverted, and which may not? To tender a judgment of a Court (given after a trial in absentia) may be a convenient and easy course to adopt - it does not follow that it is a legitimate course to adopt. It neither conforms with the purpose of such a conviction specified in the Act, nor accords with notions of natural justice which must underlie its operation.

The right to testify. In the particular circumstances of this case the appellant ought to have been permitted to give evidence explaining acts or omissions alleged to have been committed by him as set out in the judgment of the Local Court. To explain is not to controvert. All that is forbidden by s 17(6A) is controversion. To say "I did the act alleged against me. At the time that I did it my mental state was consistent with innocence according to the law in force in New South Wales" is not to controvert an alleged act or omission. In any event, it is difficult to see how a mental state falls within the limited term "acts or omissions" - and therefore difficult to see how a foreign State may incontrovertibly allege such a mental state. This may be a drafting problem associated with the post 1985 legislation. The precursor to the present Act expressly adverted to states of mind. If the present legislation is deficient in this respect, then so be it. Gaps of this nature are not to be filled by judicial fiat. Let Parliament resolve them.

The requirements of s 4(3). Mr Wiest is deemed to be a person accused of an extradition crime pursuant to the provisions of s 4(3) of the Extradition (Foreign States) Act (the Act) because he was convicted in his absence of an offence against the law of the Federal Republic of Germany. "For the purposes of this Act" he is not a convicted person.

It is an essential principle of the criminal law here that a trial for an indictable offence be conducted in the presence of he accused: R v Lawrence [1933] AC 699 at 708. For this purpose a trial means the whole of the proceedings including sentence: R v Lawrence (supra) at 708. A sentence passed for a felony in the absence of the accused is totally invalid: R v Lawrence at 708.

An exception to this rule may occur if the accused voluntarily waives his right to be present at his trial. An absconding whilst on bail may be regarded *476 as constituting such a waiver: R v Abrahams (1895) 21 VLR 343 (a case where the prisoners were ill and sought permission for the trial to continue in their absence); R v Jones (No 2) (1972) 56 Cr App R 413 and R v McHardie [1983] 2 NSWLR 733. It is clear that a trial judge has a discretion to continue the trial in the absence of the accused where the accused had voluntarily waived his right to be present: R v McHardie (supra) at 742. That discretion, even in such cases, should be "exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone": R v Jones (No 2) (supra) at 421 citing Abrahams with approval.

This right for the accused to be present at his trial is a personal one. The reason why the accused should be present at the trial is in order that he may hear the case made against him and have the opportunity, having heard it, of answering it: R v Lee Kun [1916] 1 KB 337 at 341.

The fact that the accused may still be represented by counsel after he has absconded during the course of the trial does not affect that application of the general principle that the trial is to be conducted in his presence: R v Jones (No 2) and R v McHardie. The trial judge still has a discretion as to whether he should continue the trial or discharge the jury: R v McHardie at 742.

This appears to be the case in extradition proceedings as well: R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498 at 500; R v Governor of Pentonville Prison; Ex parte: Zezza [1983] 1 AC 46 at 51. Indeed, this conclusion is strengthened by the wording of s 4(3) of the Act which states "Where a person has been convicted in the absence of the person of an offence ..." [Emphasis added.] "The person" is referable back to "a person" who has been convicted.

The fact that Wiest was present during the earlier part of his trial but not when it resumed makes no difference to the proposition that he was convicted in his absence. The time he was convicted is the relevant time in determining whether he was present or not.

It is not appropriate to read into s 4(3) any requirement that the absence of the accused must be both total and involuntary. The language of s 4(3) does not allow such a requirement to be read into the section. Section 4(3) also encompasses the situtation that existed in cases such as R v Governor of Brixton Prison; Ex parte Caborn-Waterfield (supra) and R v Governor of Pentonville Prison; Ex parte Zezza (supra) where, in each case, the accused voluntarily absconded from his trial. The English legislation under consideration in those cases had no precise equivalent to s 4(3) of our Act, but rather invoked in a quite different manner the principle of "contumacy".

In any event, Mr Wiest did not voluntarily abscond during the trial. He had mistakenly inserted in his diary the incorrect date for the recommencement of his trial as set out in pars 23, 24 and 25 of the affidavit of R I Grant, sworn 2 August 1988. This affidavit was relied on in the bail application before the Full Court on 16 August 1988. The fact is that Mr Wiest was not present at the relevant time when the Local Court at *477 Bonn convicted him and this Court cannot properly proceed upon the assumption that he was.

When one examines the request dated 29 April 1988 by the Federal Republic of Germany for the surrender of Mr Wiest, it is clear that the Federal Republic, through its Embassy in Canberra, has failed to acknowledge the requirement laid down by s 4(3). The request seeks the return of Mr Wiest to serve his sentence and not to be tried. Such a request is supplied "for the purposes of this Act" in that it is the initiating document issued by a foreign state for extradition proceedings to be undertaken. It is the seminal document for extradition proceedings to be instituted against Mr Wiest under the Act. Without such a request no such proceedings can be instituted: see ss 15(1), 16(1), 17(1), (4) and (5).

It is also clear that the Attorney-General's notice pursuant to s 15(1)(b) is itself based upon a "requisition for the surrender of a fugitive" being made to the Attorney-General by a foreign state. If a request is not properly made by the foreign state then it would follow that the Attorney-General has no statutory right under s 15(1)(b) to issue such a notice. If such a notice is not validly issued then it follows that any such extradition proceedings commenced against the fugitive must fail: s 17(4) and (5): Schlieske v Federal Republic of Germany (No 2) (1987) 26 A Crim R 341 at 346, per Burchett J.

The s 15(1)(b) notice asserts that Mr Wiest is "accused" of certain offences. This is untrue. The Federal Republic does not accuse him of anything. It has convicted him and requires him to serve his sentence. The request and the notice were not ad idem.

Although the point is not free from difficulty, s 4(3) is intended to ensure that a requesting state seeking a fugitive who has been convicted in his absence must request him for trial rather than to serve a sentence. Otherwise, there would be no point in requiring that state to set out alleged acts or omissions pursuant to s 17(6)(a)(i). An allegation is, ex hypothesi an assertion which has yet to be substantiated. Unless s 4(3) is given the construction contended for by the appellant, the Act as a whole makes no sense in this regard.

The extradition proceedings against Mr Wiest have not therefore been properly brought. It follows that the order made by the magistrate committing Mr Wiest to prison is invalid.

The requirements of s 17(6)(a). The warrant of arrest dated 11 February 1987 issued in the Federal Republic of Germany failed to acknowledge that Mr Wiest is deemed not to have been convicted. The warrant alleges that "(b)y the judgment of the Boon Schoffengericht (court with a professional judge and two lay assessors) dated 11 February 1987, which has not yet become final, he was sentenced to imprisonment for a term of one year and three months". The judgment has now become final since his appeal has been dismissed: see Request dated 29 April 1988. The warrant seeks to have Mr Wiest arrested so that he can return to serve his sentence rather than to be tried.

It is clear that the foreign warrant is supplied "for the purposes of this Act". Before the magistrate can issue a warrant under s 17(6)(c) committing *478 a fugitive to prison to await the warrant of the Attorney-General for his surrender, there must be produced to the magistrate, in the case of a person who is accused of an extradition crime, 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: s 17(6)(a)(i)(A). There can be little doubt that the foreign warrant is produced "for the purposes of this Act". The foreign warrant did not comply with the requirements of s 4(3) because it treated Mr Wiest as a convicted person rather than a person accused of certain offences. It follows that the foreign warrant produced to the magistrate did not comply with the requirements of s 17(6)(a)(i)(A) by reason of the operation of s 4(3).

Section 17(6)(a) provides that if the application of this Act to the foreign state that made the requisition for he surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications are to be produced to the magistrate. The provisions of s 4(3) of the Act place a limitation or condition upon the requesting foreign state to treat a person who has been convicted in his absence as an accused person "for the purposes of this Act". The foreign warrant must reflect this limitation or condition imposed upon the requesting state and treat such a person as a an accused person. This did not happen here. Accordingly, the Federal Republic of Germany has not produced to the magistrate the requisite document complying with s 17(6)(a).

The order made by the magistrate committing Mr Wiest to prison is invalid because the foreign warrant failed to treat Mr Wiest as an accused person rather than a convicted person in contravention of s 4(3).

J J SpigelmanQC and A Robertson, for the respondents.The appeal from Davies J. The point decided by Davies J was that the order made by the magistrate on 27 April 1988 releasing the applicant was not an order which finally released the applicant from extradition with respect to the charges to which those proceedings related.

Davies J decided the point rightly and the respondents adopt his judgment for the reasons he gave.

His Honour's conclusions are supported by recent authority in the United Kingdom: Re Syal (unreported, Queen's Bench Divisional Court, 13 May 1987).

In addition to the cases cited by Davies J, the respondents rely on: Riley v Evans (1983) 80 FLR 219 at 229; Aston v Irvine (1955) 92 CLR 353 at 365; Hilton v Wells (1985) 157 CLR 57, affirmed in Jones v Commonwealth (1987) 61 ALJR 348.

The first magistrate was not sitting as a court and was not exercising the judicial power of the Commonwealth. He was exercising an administrative power: see s 17(6)(c).

The cause of action or issue decided by the second magistrate could not have been the same cause or issue as that to be decided by the first magistrate as the requisitions were different: see ss 17(6)(1b) and 13(2). See *479 also Lizzio v Municipality of Ryde (1983) 155 CLR 211 at 225. The only thing "necessarily established" (Blair v Curran (1939) 62 CLR 464 at 531) by the first decision was that at that time the condition that the Federal Republic of Germany "has given an undertaking" within s 13(2) had not been established to the "satisfaction" of the magistrate within s 17(6)(1b).

Additionally s 22(1) of the Acts Interpretation Act 1901 (Cth) has the result that the power to commit under s 17(6)(c) may be exercised from time to time: cf Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332, 335-336.

In summary, the first decision was merely administrative; the first decision was not a final decision; and the cause of action or issue on the second requisition is not the same cause of action or issue arising on the first requisition dealt with by the first decision: Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453.

The appeal from Pincus J. Pincus J decided the questions before him correctly and the respondents adopt his judgment for the reasons that he gave.

In the case of a person convicted of an offence, who by s 4(3) of the Act is to be treated as merely accused of the offence, the precise judgment upon which he was actually convicted is safer and more effective than any attempted paraphrase of its text. A fugitive would have greater cause for complaint at a failure to present the very statement of acts or omissions which founds his conviction and sentence.

There is no basis for construing "act or omission" in s 17(6A) or "acts or omissions" in s 17(6)(a)(i)(C) as meaning actus reus: see Riley v Commonwealth (1985) 159 CLR 1 at 8; Linhart v Elms (1988) 81 ALR 557. See also Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 at 372- 374.

The appellants seek to add a ground not argued before the magistrate or before Pincus J and not the subject of any application for review. It is now asserted that no statement had been produced to the second magistrate complying with s 17(6)(a)(i)(B) in that no statement set out a description of each offence. No legal error is alleged or appears from the magistrate's decision. In any event it is submitted that the document furnished by the German Government answers the requirement of s 17(6)(a)(i)(B).

The requirements of s 4(3). Section 4(3) creates a statutory fiction. The question that has been raised requires the Court to consider the purpose for which the statutory fiction has been introduced: see Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 253-254. In the present case, as the Second Reading Speech clearly shows, the purpose was to ensure that in the case of a person convicted in his absence the Australian extradition requirements for a person accused of a crime (s 17(6)) should be made available. Mere proof of conviction, without a statement of offences or acts and omissions, will not be enough. There is nothing in the Act which requires a requesting State to offer a new trial. Nor is there anything in the Act to suggest that the "statutory fiction" requires a fictional request for the purposes of a trial which will not occur.*480

Section 4(3) does not provide that under the law of the foreign state a person convicted in his absence has not been convicted of that offence, nor could it so provide. No statutory fiction of Australian law should be construed to imply an obligation to alter the usual criminal justice procedure of the requesting State. Such a requirement would be specified in a treaty or regulation rather than imposed by the sidewind of a deeming provision.

The alternative that the requisition was required by Australian law to pretend that Mr Wiest was accused of an offence, whereas in truth under German law his conviction was final, strongly suggests that the Australian law should not be construed as having that result. The Commonwealth Parliament is not to be taken as intending so cruel a hoax. There is of course no evidence as to the position under German law, although the requisition says that the sentence is final and enforceable by execution since 3 November 1987. A "final" judgment, at least under Australian law, may be appellable or subject to an application to set it aside.

The correct construction of s 4(3) is that it operates only in respect of that part of the Extradition (Foreign States) Act that draws a distinction between classes of fugitives. In other words s 4(3) operates only where the Australian Act, a treaty or regulations distinguish between those who are accused of an extradition crime alleged to have been committed and those convicted of an extradition crime that was committed. That distinction is, relevantly, drawn in s 17(6). In the present case the words "for the purposes of this Act" have no other application. Sections 13, 14, 15, 16 and 17(1) to (5C) deal with a fugitive without distinction between the two classes of fugitive which the definition of that word in s 4(1) contains. The phrase "for the purposes of the Act" does not mean, as the appellant contends it does, that all documents referred to or required under the Act must draw the distinction. This is particularly so where a statement based on the distinction would be false.

The mischief at which s 4(3) is directed is the recognition that mere proof of a conviction which occurred in the absence of the accused may not be a sufficient indication that the fugitive has committed an extraditable crime. Something more is required, that is the same documentation must be produced as in the case of a person accused of an extradition crime. That documentation is the foreign warrant of arrest, a description of each offence and the penalty applicable, and a written statement of all the acts or omissions in respect of which the surrender of the person is requested. The only operation of s 4(3) is in the context of s 17(6) and any relevant provisions of treaties or regulations. The deeming provision in s 4(3) requires the magistrate to look beyond the conviction. It does not annul a foreign conviction nor require a trial in the foreign state nor require a foreign state to specify in the requisition that there will be a further trial when under that State's law there will not be such a trial.

Nowhere in the Act is there any reference to the content of a requisition for surrender. Indeed, the requisition could be oral. No document constituting such a requisition is required to be produced. The "requisition for surrender" referred to in s 15(1), if relevant at all, is not invalidated by any error unless it deprives it of its character as such a "requisition". Nothing in the present case can satisfy that test.*481

The authorities concerning the right to be present in criminal proceedings are irrelevant to the question before the Court. The extradition procedure is not concerned, and in the history of extradition has never been concerned, with the specific procedure in the foreign State whether before or after the extradition application. For example, nothing in the Act suggests that a person accused will be or should be or even might be present or absent at the whole or any part of his trial if he were to be extradited. Nothing in the Act would render invalid an extradition to a country which did not permit his presence at a trial. The question of the acceptability of the criminal justice system of a foreign State is a decision for the Commonwealth Executive in extending the application of the Act to that State whether by treaty or regulation. Neither the magistrate nor this Court is concerned with the "justice" of that system.

The purpose of s 4(3) is to deal with the cases which arise where the fugitive is tried in his absence. It does not apply where the fugitive is absent for no more than the day of his conviction nor where his absence from his trial arises from the circumstance that he voluntarily does not attend it after its commencement. Alternatively s 4(3) does not apply to a person who is present by his counsel or attorney as was Mr Wiest.

The requirements of s 17(6)(a). Section 17(6)(a) refers to a liability to be surrendered. That takes one first to s 12 which imposes the liability and successively to the definitions of "fugitive" in s 4(1) and then "extradition crime" in s 4(1A). It is only in the definition of an extradition crime that a relevant reference to a "requisition" occurs. That reference is limited to an "offence" for which the surrender is requested. This says nothing about the proposed "treatment" of the fugitive upon surrender. Similarly, in s 17(6)(a)(i)(A) the only reference to a "requisition" is that the foreign warrant which must be produced has been issued in the foreign state that made the requisition. Again, no question of the "treatment" of the fugitive in the requisition arises.

Section 4(3) is not a section with which one can or cannot "comply". It is a deeming provision. Furthermore, it is not capable of being a "limitation, condition, exception or qualification" within s 12, each of which words relates to the phrase "to which the application of this Act in relation to that state is subject": see ss 9(2), 10(1), (2) and (4) and 11(2).

In the present case nothing turns on whether or not the appellant was a person convicted in his absence. The requirements of s 17(6) have been complied with on either view.

M S WeinbergQC in reply.If a requesting State is seeking to extradite a fugitive who has been convicted in his absence, the requesting State must for the purposes of any extradition proceedings brought under the Act request the fugitive for trial rather than for imprisonment. If the fugitive is extradited, it then becomes a matter for the requesting State to decide whether it will honour its undertaking on the question of whether or not the fugitive will get a new trial.

The appellant contends that the requesting State must in fact offer a new trial in order to comply with the requirements of s 4(3). Section 4(3) is a *482 deeming provision and creates a statutory fiction. The full and proper effect must be given to this provision in accordance with the ordinary meaning of the language of that section.

The respondents have not sought to meet the appellant's contention that it is absurd to suggest that the only purpose of s 4(3) is to ensure that marginally different documentation is supplied by the requesting State in the case of a person being an accused person as opposed to a person being a convicted person. The provision was clearly intended to do more than just merely this.

As to par 20 of the respondents' submissions, the request by the Federal Republic of Germany for the surrender of the appellant is the seminal document for the institution of extradition proceedings under the Act. Without such a request no such proceedings can be brought: ss 15(1), 16(1), 17(1), (4) and (5). A person would not be liable to be surrendered under the Act to a requesting State if there was no such valid request.

As to par 22 of the respondents' submissions, the appellant contends that the English cases are of little assistance because they were decided under a materially different statute.

It is not an insult to the Court to contend that the appellant did not voluntarily abscond during his trial. He had inadvertently placed in his diary the incorrect date for the recommencement of his trial. There was no attempt by the respondents to adduce any other evidence on this point. No purpose would have been served for the appellant to return for his appeals because he would have been imprisoned on his arrival in West Germany. In any event the West German Government would not have released him if the appellant's appeals were unsuccessful. It should be noted that the respondents concede that the appellant was not present in person on the day of his conviction by the Local Court at Bonn.

Cur adv vult

21 December 1988

Sheppard J.

In this matter I have had the advantage of reading the judgments to be delivered by the other judges of the court. I agree generally with the reasons of Gummow J and with his conclusion that the appeals should be dismissed. There are some matters upon which I would, however, make some comments.

First, s 17(6)(a)(i)(C) of the Extradition (Foreign States) Act 1966 (Cth) (the Act) requires the production to the magistrate of a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested. In the present case it was contended by the respondents that there was a sufficient statement of them in the German warrant itself. For the reasons given by Gummow J, I think that that submission should be accepted. A secondary submission made by the respondents was that there was, in any event, a sufficient statement of the relevant acts and omissions in the judgment of the German court, a copy of which was produced to the magistrate. In this case the statements and findings made in s IV of the reasons of the court are clear and explicit and, like the warrant, provide a sufficient statement of the acts and omissions *483 relied on. But I have referred to the matter because I think it will not always be sufficient simply to produce a document, such as the judgment here, which is part of the prosecution or court record. It is unlikely that there will always be found in such a document a sufficiently clear statement of what the Act requires. Furthermore, unless one's attention is directed to the relevant part of the judgment in this case, that is s IV, one may not readily pick up the critical part of it and one may be misled into thinking that there are statements in other sections of it which constitute acts or omissions which are relied on.

It seems to me that the Act provides for a simple and straightforward procedure. All it requires is a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested. No doubt such statements may take a variety of forms, but with the assistance and advice which is apparently made available to countries seeking extradition of accused or convicted persons from Australia, I would have thought that it was not asking too much to expect a clear and unambiguous statement of the relevant acts and omissions, even if they be lifted (which it may well be appropriate to do in a given case) from another document such as the judgment here. Extradition is after all a serious affair, and there should be no room for uncertainty or misunderstanding.

I next wish to say something of abuse of process. We are all of opinion that the issue of the second warrant did not constitute an abuse of process or power, but there is a divergence of opinion between Burchett and Gummow JJ as to the source and nature of the court's power to control abuses of process or excesses of power in the extradition area. It is not necessary to resolve that question in this case because of the view we all take that, whatever the nature and source of the power may be, there is no abuse or excess here. I would, therefore, prefer to leave for another day the resolution of the question whether the matter must be approached strictly within the confines of judicial review of administrative action or whether the court has some wide supervisory power to control abuses in cases where, although the subordinate proceedings are purely administrative in character, they have about them so many of the characteristics and trappings of judicial proceedings or proceedings, which although administrative, form part of or are preliminary to curial proceedings. The question arises perhaps more acutely in cases where the subordinate proceedings threaten the liberty of the subject or affect rights to property or status. In such cases ought the court assume to itself a supervisory role similar to that which it assumes in relation, for example, to committal proceedings? The decisions of the New South Wales Court of Appeal in Herron v McGregor (1986) 6 NSWLR 246 and X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 cited by Burchett J, concerned as they were with the proceedings of disciplinary or regulatory tribunals, suggest that this power already exists and may be developing.

Whatever the correct position may be, it seems to me to be unlikely that there will be much practical difference in the outcome of a particular case no matter which view of the source of the court's power is adopted. If there be an abuse, oppressive conduct or use of a power for an improper purpose, the court will have power to interfere if it seems appropriate that it should.

It is appropriate at this point to indicate my agreement with Burchett J that ss 17A and 18 of the Act have displaced the provisions of the *484 Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the review of the decisions of a magistrate specified in those sections. This conclusion does not, of course, affect the application to this case of s 39B of the Judiciary Act 1903 (Cth) which confers on the court jurisdiction to give the remedies provided for in s 75(v) of the Constitution.

My remaining comments concern the appellant's submission based on the provisions of s 4(3) of the Act. I agree with Gummow J that, upon the basis of the material which is before the court, the appellant was not convicted in his absence within the meaning of the subsection. The subsection, therefore, had no application to the circumstances of this case. Nevertheless, the respondents, by following the provisions provided for in s 17(6)(a)(i) of the Act, acted as if it did. This is made clear by the provisions of the German warrant which, notwithstanding that it post-dated the conviction, speaks of the appellant as a person "strongly suspected of having committed this criminal act". Like Gummow J, I do not think that it would be right now to allow the respondents to treat the case as one to which s 4(3) had no application. I confess, however, to having had some misgivings about this view. Its adoption translates us from reality into an area which is, at least in some respects, hypothetical.

On this approach the point at issue arises acutely. The request for extradition seeks the appellant's extradition, not for trial, but for the execution of a prison sentence. It is not intended to try him again; indeed German law might not permit such a course.

As a matter of construction, the strength of the appellant's argument stems from the use in s 4(3) of the expression "for the purposes of the Act". But, so it seems to me, the submission will not succeed unless one gives to s 4(3) such overriding effect that on no account may a person be surrendered to another country for an extradition crime of which he has been convicted in his absence except on the basis that he is to be tried again on his return. Not overlooking the important change which was made to the form of s 4(3) of the Act by the 1985 amendments thereto (see the Extradition (Foreign States) Amendment Act 1985 (Cth), I think there are indications in the Act that this was not the intention of Parliament. I think that the expression, "for the purposes of the Act", means, "for all relevant purposes of the Act". The insertion of the word "relevant" into the phrase has the effect of begging the question, but it directs one to a consideration of those parts of the Act which may have application. I think it should be emphasised that s 4(3) is not found in Pt III which deals with extradition to foreign States but in Pt I which is entitled, "Preliminary". Furthermore, s 4 is in truth a definition section and one would expect to find in it, as one does, definitions or extensions of or restrictions on meanings of words and expressions used in what I may refer to as the operative parts of the Act.

The sections which have practical relevance in the present case are ss 12, 13, 14, 15, 16 and 17. In none of these sections, except s 17, is any distinction drawn between the case of a person accused of a crime and that of a person convicted of a crime. In ss 12, 14, 15 and 16 a person whose extradition is sought is referred to as a "fugitive". This expression is defined in s 4(1) to mean a person accused of an extradition crime or convicted of an extradition crime of the kinds there mentioned. So the sections apply indistinguishably both to accused and convicted persons. Section 13 does not use the word "fugitive", but applies equally to accused and convicted persons.*485

Section 17 does not use the word "fugitive", but in subs (6) makes different provisions in relation to the documents which are to be produced to the magistrate depending on whether the fugitive is accused of an extradition crime or has been convicted of one. In cases to which s 4(3) applies the documentation which is required is, by reason of that subsection, the documentation required for an accused person rather than for a convicted person.

In my opinion s 17(6) is the only relevant provision of the Act to which s 4(3) is required to be applied. Upon the hypothesis that the appellant was convicted in his absence, the relevant provisions of s 17(6) - the provisions of par (a)(i) - have been complied with. Section 4(3) has no further relevance.

I appreciate that the view I have taken does not give to s 4(3) a substantial significance and that it follows that there will be cases where people are in fact tried and convicted in their absence in the requesting State who will not have an opportunity of being heard in defence of the charge either in the requesting State or in Australia. The position was not always so. Until the amendments to the Act which were effected in 1985 came into force, the magistrate was required to be satisfied by evidence of the prima facie guilt of the fugitive and the fugitive was entitled to lead evidence. Since the amendments to the Act no evidence is required; that requirement has been replaced by a requirement only for a duly authenticated statement setting out the acts or omissions in respect of which the surrender of the person is requested. And that person may no longer give evidence to controvert an allegation that he or she has committed an act or omission in respect of which the surrender is requested: s 17(6A).

In reaching my conclusion I have had regard to the Second Reading Speech in which the amending Act was explained. There is room for the view that the Act has not achieved its intended operation, but in my view its words are clear and we are not permitted to allow the Second Reading Speech to control their effect.

In the result I would dismiss the appeals with costs.

Burchett J.

The circumstances which have given rise to these two appeals are set out in some detail in the reasons for judgment of Gummow J. It is unnecessary for me to recapitulate them. I agree, for the reasons Gummow J has given, that the appeal from the decision of Pincus J, so far as it depends upon the grounds of appeal originally taken, must fail. As regards the appeal from the decision of Davies J, I concur in Gummow J's rejection of the contention that the decision in the first extradition proceeding created a res judicata or issue estoppel, so as to entitle the appellant to success in his application.

I also agree that the ground of appeal, taken in respect of the decision of Davies J, on the basis of the principles relating to abuse of process, should not be upheld. But I do so because the circumstances do not disclose anything to suggest an abuse of process. What happened was just that an undertaking as to speciality, which had been given by the government of the Federal Republic, was found to be defective, and accordingly the first extradition proceedings failed. A fresh undertaking, of which no complaint is made, was then given and fresh proceedings were taken. This is not the material that makes an abuse of process.*486

But I would not wish to cast any doubt upon the applicability to extradition proceedings in Australia of the principle referred to by Lord Mackay of Clashfern in Re Rees [1986] AC 937 at 962, where he said:

"When examining magistrates in committal proceedings reach the conclusion that the evidence before them is insufficient to justify committal for trial of an accused person, the accused person is entitled to be set at liberty. This does not prevent him being re-arrested and being made subject to new committal proceedings, although, as the authorities illustrate, the initiation of new proceedings may, in some circumstances, amount to an abuse of process."

I think Lord Mackay was there applying the analogy of committal proceedings, in respect of a domestic prosecution, to the case before the House of Lords, which related to extradition. He dealt with that case on the footing that a repeated application for extradition could, in some circumstances, amount to an abuse of process, although in that case he held, as I do in this, that the circumstances provided no foundation for any such finding.

There is, I think, no doubt that the functions performed by the magistrates who heard the proceedings against the appellant under the Extradition (Foreign States) Act 1966 (Cth) (the Extradition Act), were administrative functions performed by them as personae designatae. I referred to some of the cases which establish this proposition in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 488-489: see now also Jones v Commonwealth (1987) 61 ALJR 348. To categorise the decision as administrative is, however, not necessarily to answer the question whether there can be an abuse of process in respect of it. In Clyne v Deputy Commissioner of Taxation (Cth) (No 3) (1984) 154 CLR 589 at 598-599, the joint judgment of Gibbs CJ, Murphy, Brennan and Dawson JJ holds that there can be an abuse of the process under s 55 of the Bankruptcy Act 1966 (Cth), a section which provides for purely administrative procedures. (It was enacted in faithful compliance with suggestions made in the High Court in R v Davison (1954) 90 CLR 353 as to the model a valid administrative system of voluntary bankruptcy could adopt.) Their Honours (at 600) indicated a view that in fact, in that case, there appeared to have been an abuse of process. If the principles relating to abuse of process can be applied to the procedure for which s 55 of the Bankruptcy Act provides, it does not seem to me inevitable that Lord Mackay's view should be rejected in Australia in respect of the procedures under the Act. A wide view of what can be regarded as "process" which may be abused has also been taken in a number of other cases, including Spautz v Williams [1983] 2 NSWLR 506 at 539; Clayton v Ralphs (1987) 45 SASR 347; Herron v McGregor (1986) 6 NSWLR 246; and X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575.

Even if, for the preservation of the purity of the principle of abuse of process, its application were confined to cases more closely related to the exercise of judicial power than are cases relating to extradition proceedings before magistrates as personae designatae, I think a similar principle could be applied with no different results. In Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988), I discussed, in the context of s 55 of the Bankruptcy Act, a number of the leading authorities in respect of abuse of process. I concluded that: "These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the *487 purpose that makes the abuse." If this is the root from which the principle grows, the reason why repeated applications may be an abuse of process is that the process was not intended to be used to achieve the purposes involved in some cases of repeated applications. It is true that harassment results. Nevertheless, it is not merely because of the harassment, but because the process was not intended to be used to harass (nor, at least in some circumstances, for the purpose of a relentless pursuit of a man already found not liable to extradition), that the process may be abused in cases of this kind. The explanation I have given of the application of the doctrine of abuse of process in such cases is in accord with what was said by Beaumont J in Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 161-162, where he referred to cases in which "the Executive has abused the extradition procedures by a needless multiplicity of actions" as providing "an example of an improper purpose".

When the principle is seen in that light, it appears closely analogous to the ordinary principle of administrative law by which an excess or abuse of a discretionary power is restrained: see S A de Smith, Judicial Review of Administrative Action (4th ed, 1980), pp 322-336. Explaining this principle, de Smith (at p 335) says that a power is exercised "fraudulently", in the sense involved in the administrative law concept of bad faith, when its repository "intends to achieve an object other than that for which he believes the power to have been conferred". De Smith's statement is expressed in language similar to that of Rand and Judson JJ in the decision of the Supreme Court of Canada in Roncarelli v Duplessis [1959] SCR 121 at 141: "acting for a reason and purpose knowingly foreign to the administration." The idea of a purpose "foreign" to the administrative discretion being utilised is, of course, at the heart of the principle of abuse of process as stated by the High Court in Clyne v Deputy Commissioner of Taxation (Cth) (No 3) at 599. Lord Denning put the matter tersely in R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 at 299 when he referred to the excess or abuse of a discretionary administrative power as "using it as a means of achieving an ulterior object". Cf Newby v Moodie (1988) 83 ALR 523 at 527, where the Full Court, in denying that a decision to prosecute was an abuse of the power of the Director of Public Prosecutions to do so, referred to the absence of any suggestion of improper purpose.

The failure of the grounds of appeal originally taken does not end the matter. The appellant sought leave to amend both his application and his notice of appeal to raise additional grounds of appeal against the decision of Pincus J. He wished to contend that, in the circumstances, it was unlawful for him to be extradited from Australia, not to be put on his trial for extradition offences alleged against him, but in order to undergo a sentence already imposed. Based on s 4(3) of the Act, the argument is that the requisition (which expressly states "the extradition of Mr Wiest is now sought for the execution of a prison sentence of one year and three months") could not lawfully support the Attorney-General's notice under s 15, since the appellant was convicted in his absence. Section 4(3) requires that he be deemed not to have been convicted, and the requisition and notice cannot stand with that requirement of the statute. Nor can the foreign warrant, issued for the same purpose and therefore equally in conflict with the Act, validly comply with s 17(6)(a)(i)(A).

The issues the appellant wishes to raise are clearly of fundamental *488 importance. But there is a question whether they can be raised, for the first time, upon the appeal from the decision of Pincus J, before whom they were not argued. In answering that question, it is necessary to have regard to the nature of the proceedings. The matter was brought before Pincus J both in reliance upon s 18 of the Extradition Act and also in reliance upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act). For the respondent, it is submitted that the proceedings lay only under s 18 of the Extradition Act, and that, under that section, it is now too late to raise the proposed new grounds.

The problem is whether the mode of appeal provided in the Extradition Act excludes the operation of the Judicial Review Act. Prior to the amendments made in 1985 by the Extradition (Foreign States) Amendment Act 1985 (Cth) and the Statute Law (Miscellaneous Provisions) Act (No 2) 1985 (Cth), s 18(1) provided:

"When, in pursuance of this Act, a Magistrate commits a person (in this section referred to as 'the prisoner') to prison, or otherwise orders that he be held in custody, to await the warrant of the Attorney-General for his surrender to a foreign state, the Magistrate shall inform the prisoner that he will not be surrendered until after the expiration of the period of fifteen days from the date of the committal or order and that, if he asserts that his detention is unlawful, he may apply to a court of competent jurisdiction for a writ of habeas corpus."

Although the magistrate was directed to tell the prisoner his surrender would be delayed for 15 days, no period was specified within which the application for habeas corpus was required to be made. In that state of the legislation, Puharka v Webb [1983] 2 NSWLR 31 was decided. Rogers J rejected a submission that the section excluded the remedy of habeas corpus if sought after the expiration of the period of 15 days. It was also whilst the legislation remained in its original form, so far as review was concerned, that Riley v Evans (1983) 80 FLR 219 came before Fox J. As his Honour noted (at 223), it was not disputed that the decision to issue a warrant of committal in that case was a "decision of an administrative character made under an enactment" within the meaning of the Judicial Review Act. Nor was any such question raised upon the appeals to the Full Court and the High Court which followed: see Commonwealth v Riley (1984) 5 FCR 8; Riley v Commonwealth (1985) 159 CLR 1.

During 1985, each of the two amending Acts to which I have referred became law. Thereafter, the Act included the present ss 17A and 18. By s 17A it is provided:

"(1) Where, under sub-section 17(6), a Magistrate orders that a person be released, a foreign state may apply to the Federal Court, or to the Supreme Court of the State or Territory in which the person was apprehended, for a review of that order, and the Court may review the order.

...

(5) Upon a review of the order, the Court shall have regard only to the material that was before the Magistrate.

...

(7) Upon the review of an order, the Court may confirm or vary the order, or quash the order and make a new order in substitution for the order so quashed.*489

(8) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate.

(9) An appeal lies to the Full Court of the Federal Court from -

(a) an order confirmed under sub-section (7);

(b) an order as varied under sub-section (7); or

(c) an order made under sub-section (7) in substitution for an order quashed under that sub-section.

(10) In an appeal, the Full Court shall have regard only to the evidence given in the proceedings out of which the appeal arose.

(11) Except as provided by sub-section (9), an appeal does not lie from an order referred to in that sub-section."

By s 18 it is provided:

"(1) Where a person (in this section referred to as a 'fugitive') is committed to prison or otherwise ordered to be held in custody, or is granted bail, by a Magistrate pursuant to section 17, the fugitive may, within the period of 15 days after the date of the decision of the Magistrate, apply to the Federal Court, or to the Supreme Court of the State or Territory in which the Magistrate was sitting, for a review of the validity of the decision of the Magistrate.

(2) The fugitive is not entitled to make an application under sub-section (1) after the expiration of the period referred to in that sub-section.

(3) Upon a review under sub-section (1), the Court shall have regard only to the material that was before the Magistrate and shall-

(a) if satisfied that the decision of the Magistrate was valid - make an order confirming the decision; or

(b) if not so satisfied - order that the fugitive be released.

(4) An appeal lies to the Full Court of the Federal Court from an order made on an application by the fugitive under sub-section (1) if the appeal is instituted within 15 days after the date of the decision of the Federal Court or the Supreme Court in relation to the application.

(5) In an appeal under sub-section (4), the Full Court shall have regard only to the material to which regard could be had by the Court that made the order from which the appeal was instituted.

(6) Except as provided by sub-section (4), an appeal does not lie from an order referred to in that sub-section.

(7) A Magistrate shall, when committing a fugitive to prison or otherwise ordering that a fugitive be held in custody, or when granting bail to a fugitive, pursuant to section 17, inform the fugitive that the fugitive will not be surrendered until after the expiration of the period referred to in sub-section (1) and that the fugitive may make an application to a Court as provided by that sub-section."

Perusal of these provisions reveals that an entirely new legislative scheme came into effect upon their enactment. Previously, the legislation had been silent about any right of review exercisable by the foreign state. So far as the fugitive was concerned, his right to obtain a habeas corpus was mentioned only in the context of a requirement that the magistrate should inform him that he would not be surrendered for 15 days and of his right to apply for the writ. As was made clear in Puharka 's case, the Act neither created nor defined that right. After the amendments, the Act contained detailed *490 provisions governing the manner, scope and incidents of an appeal, either by the foreign State or by the fugitive. Whether or not the tenacity of the common law enables the ancient writ of habeas corpus to persist as a reserve remedy, it would be extremely odd if Parliament intended this elaborate statutory scheme to be no more than an optional alternative to the general statutory scheme of review provided by the Judicial Review Act. The restrictions upon the time for the making of an application, upon the material to be considered, and upon any further appeal, all appear eminently suited to the peculiar problems of extradition. It is not likely they were intended to be capable of evasion by the simple method of ignoring the whole procedure, and resorting to the Judicial Review Act instead.

Since the enactment of the present ss 17A and 18, the problem has received some attention in first instance decisions. On a number of occasions, as in this case, applications have been brought under both Acts, but without any contention being raised that any ground of review was available under the one which was not available under the other; as a consequence, it has not been necessary to rule on the validity of the alternative procedure. It is the argument that the new ground in the present case can be permitted only if the proceeding under the Judicial Review Act is available which now singles out the point squarely for decision. A related question (which it is not strictly necessary to determine) has arisen in some cases; that question is whether a decision in respect of bail in an extradition matter is capable of review under the Judicial Review Act. In Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 at 364-365, Wilcox J expressed the view that it remained possible for a fugitive to take advantage of the provisions of the Judicial Review Act in an appropriate case. In Amrit Lal Narain v Parnell (1986) 9 FCR 479, I dealt with an application under the Judicial Review Act to review a decision, concerning bail, made in respect of a period of remand prior to the hearing of an extradition case under the Extradition (Commonwealth Countries) Act 1966 (Cth). I referred to Prevato's case, and held that the decision was reviewable.

But in Hempel v Moore (1986) 70 ALR 601, the present problem arose somewhat more directly. The matter came before me upon a single application in which reliance was placed upon both the Extradition Act and the Judicial Review Act. It was not suggested that reliance upon the Judicial Review Act involved any expansion of the powers of the court to review the decision under s 18 of the Extradition Act, except in so far as the Judicial Review Act was claimed to enable me to deal with bail pending disposal of the application. The Director of Public Prosecutions, who conducted the matter on behalf of the State of Israel, the requisitioning State, "submitted that the Judicial Review Act was inapplicable, on the basis that the Extradition Act provided its own review code" (at 602). In the event, it was not necessary for me to decide that question, as the case was not an appropriate one in which to grant bail. The orders which I made disposing of the application were made under the Extradition Act. Hempel v Moore came back before French J, whose decision is reported at (1987) 13 FCR 480, on an application for bail pending the hearing of an appeal. French J (at 487-488) accepted that he had power, either under the Judicial Review Act or under the Federal Court of Australia Act 1976 (Cth), to grant bail; but he did not think it appropriate to do so. At 488 he expressed the view that "the availability of judicial review proceedings is not designed to affect the *491 substantive legislative policies expressed by the enactments in respect of which it operates".

It is not necessary to examine the power of this Court to grant bail in relation to a matter pending before the court. Nor is it necessary to consider the availability of review of a magistrate's decision to refuse bail made upon a remand prior to the determination by him of extradition proceedings. What is in issue is whether judicial review under the Judicial Review Act is available alongside the very particular method of review set out in ss 17A and 18 of the Extradition Act. In my opinion, the better view is that ss 17A and 18 have displaced the provisions of the Judicial Review Act in relation to the review of the decisions of a magistrate specified by those sections.

For the avoidance of misunderstanding, I should add that I have not overlooked ss 5 and 7 of the Extradition (Repeal and Consequential Provisions) Act 1988 (Cth), which has been assented to, but has not yet come into operation. The effect of those sections is specifically to exclude the Judicial Review Act from application to any proceedings under the Extradition Act 1988, when that Act comes into operation, while preserving the application of the Judicial Review Act to earlier decisions under the Extradition Act. The court is not, as a consequence, prevented from accepting a construction of ss 17A and 18 of the Extradition Act which seems plainly right. The partial preservation of the application of the Judicial Review Act is explicable as indicating that Parliament took note of the cases concerning the review of decisions relating to bail to which I have referred, and of Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133; (1987) 77 ALR 641 and on appeal Hempel v Attorney-General (unreported, Federal Court of Australia, Spender, Pincus and Hartigan JJ, 27 November 1987), where the ultimate decision of the Attorney-General was reviewed.

I am accordingly required to examine the respondents' contention that, under s 18, the appellant is debarred from raising the new grounds. That contention is based on the time-limit referred to in subss (1) and (2). But the time-limit relates to the making of an application for a review; it does not refer to the specification of grounds, and suggests no restriction upon the ordinary rules in respect of amendments. Indeed, the very short time allowed to make the application suggests that a guillotine cutting off all amendments at the same time would be so unjust that Parliament could hardly have envisaged it. An amendment, of course, once made, has effect from the date of the application amended, so that it would involve no literal collision with the terms of s 18. I do not think there is any collision with the policy of the section either. The section is quite unlike the very special provisions which were the subject of consideration in Nile v Wood (1987) 62 ALJR 52.

Unless it would be futile to permit the new grounds to be raised, there is no sufficient reason to refuse to entertain them. The liberty of the individual is at stake. The respondents were in no way prejudiced by the appellant's failure to include these grounds in his application, in respect of which the appeal is brought, as originally framed. That follows ineluctably from the absolute restriction of the material which can be considered under subs (3); earlier notice of the grounds would not have enabled the respondents to shore up their case before Pincus J.

As I have already stated, the new grounds arise out of s 4(3) of the Extradition Act. But before setting out the terms of that provision, I shall trace its history, which has a great bearing on its meaning. At the outset, it *492 should be emphasised that the progenitor of s 4(3), one of the paragraphs of s 26 of the United Kingdom Extradition Act 1870 (Imp), was not a technical rule concerned with the evidence to be adduced. It reflected a fundamental concern of any law for the delivery up by one state of persons within its jurisdiction to be dealt with by another state under its criminal law. That concern is with the purposes for which the surrender of the person is sought. Prior to the Act of 1870, there had been an extradition treaty with France which had been the subject of a special Act of Parliament, passed in 1843 as the first British extradition statute. (The second, assented to on the same day, related to a treaty with the United States of America.) The 1843 Act with respect to extradition to France was concerned with persons accused of an extradition crime, and not with persons already convicted. The 1870 Act embraced both the purpose of prosecution and the purpose of carrying out a sentence. The adoption of the dichotomy of accusation and conviction, by which in s 26 the "fugitive criminal" who might be the subject of a requisition was defined, required some attention to be given to the distinction between the two cases.

In Re Coppin (1866) 2 Ch App 47, Lord Chelmsford LC had held, under the 1843 legislation and the treaty with France, that a fugitive, against whom there had been recorded in his absence a judgment par contumace under French law, remained a person accused and not a convict. But that was because the conviction was in no sense final, and upon the apprehension of the fugitive he would be put upon a trial which would not differ at all from that of an accused who had not been condemned by a judgment par contumace. Lord Chelmsford LC held that the fugitive could be extradited as an accused person. He said (at 54): "I do not see how he can be described otherwise than as an accused person."

There can be no doubt that the decision in Re Coppin led to the insertion into s 26 of the Extradition Act 1870 of the following provision:

"The terms 'conviction' and 'convicted' do not include or refer to a conviction which under foreign law is a conviction for contumacy, but the term 'accused person' includes a person so convicted for contumacy."

As Salmon J (as Lord Salmon then was) said in R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498 at 510, and Viscount Dilhorne confirmed in Athanassiadis v Government of Greece [1971] AC 282 at 295, "the words 'for contumacy' in s 26 of the Act of 1870 were intended as a translation of the French words 'par contumace'". The purpose is plain. Re Coppin having drawn attention to the existence in a foreign law of a species of conviction recorded in the absence of the accused, but having no final effect, it must have been felt necessary to make some express provision about it. Such a conviction, depending upon its circumstances, could have been offensive to British notions of justice. It also clearly lacked the full force of a conviction, although, if the matter had been looked at from a different perspective, it might perhaps have been thought the investigation of the facts by the foreign court could be a fair substitute for a committal hearing in England. What was done was to exclude a "conviction for contumacy" from the category of conviction under the Act. It then became desirable to avoid a repetition, in a new statutory context in which it might have had more force, of an argument which Lord Chelmsford LC had rejected in Re Coppin. That argument was that, after a conviction, a person *493 could no longer be described as "accused". Lord Chelmsford LC thought that, where a judgment par contumace was concerned, the fact that the fugitive would be put upon his trial immediately he was extradited meant that he would then have "ceased to be a person condemned", and must be described as "a person accused": see the report of the case at 55. The Act of 1870 gave statutory authority to that view of the matter.

When the Extradition Act was passed in Australia in 1966, there was included in it, by s 4(3), a provision in the following terms:

"For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a foreign state where the conviction is, under that law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against that law."

In 1973, the Extradition Act was amended, and a new form of s 4(3) was inserted in it. In Vol 55 of Senate Hansard for 1973 at p 1043 reference is made to explanatory notes in relation to the Bill which became the Act, and to a grant of leave to have them incorporated in Hansard. However, these notes were not (as is made clear at p 1054) recorded in Hansard. Explanatory notes to the Bill, retained by the Attorney-General's Department, refer to the amendment as a "new definition of the term 'conviction for contumacy'", and confirm that it was intended to operate "for the purposes of extradition". The new subsection read:

"Where -

(a) a person has been convicted in his absence of an offence against the law of, or of a part of, a foreign state; and

(b) the conviction is not a final conviction,

then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence."

Although, when a form of words is transplanted to a new context, it may sometimes undergo a wonderful transformation of meaning, there is not the slightest reason to think the draftsman of the 1966 Act, who faithfully (not to say slavishly) adhered to the odd word "contumacy", intended s 4(3) to have a different antipodean effect from that of its English original. The amendment in 1973 seems to have been cosmetic, substituting for the word "contumacy" a lengthy form of words meaning the same thing. It left the legislation still accurately reflecting the law as it had become established in England.

A consequence, which is not without importance for an understanding of the subsection, is that the expression "shall be deemed" as used in 1966 and 1973, in both places where it was used, referred to the reality of the legal situation and not, as the expression sometimes does, to a statutory fiction contrary to fact. Because the subsection only contemplated a case where the foreign so-called conviction was for contumacy, and the requisition was for the purpose of putting the fugitive on his trial, I do not think there could have been any question, under the 1966 or 1973 legislation, of a requisition for the surrender of a fugitive who had been convicted for contumacy, in the sense understood in extradition law, framed in the terms of the requisition in the present case. A requisition in respect of a person convicted for contumacy was a requisition for the surrender of a person accused, and its purpose was to put him upon his trial. The correctness of this view of the *494 effect of the subsection, as it stood from 1966, and from 1973, is confirmed by an observation in Athanassiadis ' case (supra) to which I shall return.

(I have referred to a requisition. A request by a state, such as the Federal Republic of Germany, to which the Commonwealth of Australia has not bound itself by treaty to surrender fugitives, should not, perhaps, in strictness be called a requisition: see Barton v Commonwealth (1974) 131 CLR 477, per Barwick CJ (at 487) and per Mason J (at 496). It is properly a request. But, having regard to s 10(4), I think such a request is a requisition within the language of the Extradition Act, and particularly ss 4, 12 and 15.)

In the Caborn-Waterfield case (supra), a decision the correctness of which was expressly confirmed by the House of Lords in R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46 at 56, Salmon J (at 509) said:

"When an accused person is committed under the first paragraph of s 10 [a provision corresponding to s 17(6)(a)(i) read with par (b) of the same subsection of the Extradition Act] and surrendered to a foreign government he is surrendered for trial ... When a convicted person is committed under the second paragraph of s 10 [a provision corresponding to s 17(6)(a)(ii) read with par (b) of the Extradition Act] and surrendered to a foreign government he is surrendered to serve his sentence, in which case all that is necessary in the magistrates' court is to prove his conviction.

In the present case the applicant was committed under the first paragraph of s 10 as an accused person but there is no question of his being tried if he is surrendered. He has already been tried, convicted and sentenced in France. If surrendered, he will go to prison to serve his sentence without any further proceedings. Accordingly, if s 10 means what it plainly says, the magistrate has wrongly committed the applicant under the first paragraph of s 10."

The expressions "surrendered for trial" and "surrendered to serve his sentence" underline that what is involved is the substance of the liability to be surrendered upon the requisition for the surrender of the fugitive. (That liability, in the Extradition Act (UK), is contained in s 12; in the Extradition Act 1870, it was contained in a closely corresponding section, s 6.) After discussing the question whether the applicant's conviction, in the case he was considering, amounted to a conviction for contumacy, and holding that it did not, Salmon J concluded (at 511-512) as follows:

"Looking at the realities of the situation he is, in the fullest sense of the words, a convicted person and in no sense an accused person ...

In our view, the parties to the treaty agreed that the persons referred to in Art VII(c) should be treated as accused persons because, in reality, that is what they are. There is no reason to suppose that the parties intended that those who are in reality convicted persons such as the applicant should be dealt with otherwise than as convicted persons.

... Had he been proceeded against and committed as a convicted person it is difficult to see in the circumstances of this case how he could have succeeded in this Court. The point raised before us on the construction of the statute is, however, of some importance, and, as the Attorney-General has said, goes far beyond the scope of this particular case. There can be no doubt that upon the true construction of the *495 statute the applicant's committal as an accused person was wrong in law."

As the conviction of Caborn-Waterfield was a final conviction, the situation was the precise opposite of that dealt with by Lord Chelmsford LC, but in both cases the matter was treated as one of substance, going to the reality of the situation of the alleged fugitive and to the whole basis on which he might be made the subject of an order exposing him to extradition.

The same view of the effect of the provision which became s 4(3) was stated by Viscount Dilhorne in Athanassiadis ' case, where he said (at 295):

"If it be the fact that, on his arrest or surrender, the accused person will be put on trial as if he had never been convicted in his absence, it is clearly right that he should be dealt with in this country not as a convicted but as an accused person. The definition in s 26 secures this. [Emphasis added.]"

In Athanassiadis ' case, as appears at 284-285 of the report, extradition of the appellant was sought "on the ground of his being convicted ... of the crime of fraud", and a point of appeal raised was "that since the appellant had been convicted in Greece in his absence his conviction was a conviction for contumacy ... with the consequence that in the extradition proceedings he ought, by virtue of s 26 of the Act, to have been dealt with as an accused and not as a convicted person". Viscount Dilhorne (at 294), set out the terms of Art 8 of the relevant treaty with Greece, which resembles s 4(3) in its use of the word "deemed". Article 8 provides: "A sentence passed in contumaciam is not to be deemed a conviction, but a person so sentenced may be dealt with as an accused person." Viscount Dilhorne concluded (at 295) that "there is no material difference between the article and the definition in s 26 of the Act". He then went on to refer to evidence "that, if the appellant was returned to Greece, he would go to prison under the judgment of the Court of Piraeus to serve his sentence, that the judgment was final as it was going to be executed immediately and that an appeal against the sentence would have no suspensive effect". His Lordship added:

"Unfortunately, [the witness] was not asked whether under the law of Greece there was such a thing as a conviction for contumacy. As the appellant's extradition would not be permissible if under the law of Greece the conviction was for contumacy, their Lordships thought it right to ask to be supplied with a statement agreed by the counsel for the parties as to the Greek law with regard to this. [Emphasis added.]"

Upon the agreed statement being made, it became clear that the conviction was not a conviction for contumacy. Accordingly s 26 had no application in that case.

Although it may be that Viscount Dilhorne was speaking only within the frame of the precise circumstances of the case, he did not qualify the statement that the appellant's extradition would not be permissible if under the law of Greece the conviction was for contumacy, nor the statement that, in such a case, he should be dealt with in Britain, not as a convicted, but as an accused, person. A fugitive convicted for contumacy would not be so dealt with if he were extradited upon a requisition for his surrender as a convicted person, with a view, not to his prosecution upon an accusation, but simply to his incarceration.

In May 1982, the House of Lords decided R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46. The appellant had been tried and *496 convicted in his absence by an Italian court. If he were extradited to Italy, he would have to serve a sentence of six years imprisonment. Although the form of proceedings, as Lord Roskill made clear (at 52), was described in Italian law as "in contumacia", the conviction was final, and the appellant would be unable to secure a review of it: "Upon any return to [Italy] the appellant must serve that sentence."

Lord Roskill (at 53) reaffirmed that s 10 (our s 17) "distinguishes clearly between a fugitive criminal accused of an extradition crime, as defined, and a fugitive criminal alleged to have been convicted of such a crime". He held the finality of the conviction under Italian law demonstrated that it was not a conviction to which s 26 applied, and therefore the appellant must be treated as a convicted person.

Two years after Zezza 's case was decided, the Extradition (Foreign States) Amendment Bill 1984 (Cth) was brought forward. The explanatory memorandum, circulated by the authority of the then Attorney-General, referred to the amendment proposed by the Bill to subs (3) of s 4 as being "to make it clear that evidence of guilt is required whenever extradition is requested in respect of a conviction imposed in the accused's absence whether that conviction is final or not". [Emphasis added.] The Bill did not proceed in 1984. After further amendments, it was reintroduced as the Extradition (Foreign States) Amendment Bill 1985 (Cth), with an explanatory memorandum, circulated by the authority of the then Attorney-General, which repeated the statement I have quoted concerning s 4(3), although the new Bill provided for the removal of the requirement, in the case of a person accused, that sufficient evidence be supplied to justify the trial of the fugitive. There was a suggestion, in argument, that the explanatory memorandum mistakenly applied to the Extradition Act an explanation which would have been true in the case of the Extradition (Commonwealth Countries) Act 1966 (Cth); but I have no doubt that the source of the explanatory note concerning s 4(3) is the earlier explanatory memorandum. It was as a result of the 1985 Bill that s 4(3) took its present form, as follows:

"Where a person has been convicted in the absence of the person of an offence against the law of, or of a part of, a foreign state, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence."

Although the picture is confused by the misleading language of the explanatory memorandum (which was repeated, as Gummow J has said, by the Attorney-General in Parliament), I think it is a clear inference that the purpose of the amendment made in 1985 was to change the position recently and plainly affirmed by the House of Lords in Zezza 's case. It is unlikely a merely cosmetic change was intended. Zezza 's case had demonstrated that, in some foreign legal systems, a final conviction could be recorded in the very circumstances which the authors of the previous forms of s 4(3) must have contemplated as leading to a conviction for contumacy, or a "conviction" which would be reopened upon the return of the fugitive. The most obvious reason for concern is the possibility that a fugitive may have had no opportunity to put his case, and that extradition as a convicted person may deny him any such opportunity now or in the future.

There are two views of the effect actually achieved by the remedy provided by Parliament - a broad view, and a narrow one. According to the broad *497 view, the words "for the purposes of this Act" ensure that a requisition submitted by a foreign state under the Act (or, in the case of a treaty state, under a treaty the observance of which is authorised by the Act) cannot lawfully require extradition of a person convicted in his absence as a convict. According to the narrow view, s 4(3) is concerned only with the nature of the evidence to be adduced to the magistrate under s 17, and extradition of such a person may be granted in order that he serve his sentence, and not for trial, while at the same time he must be treated as a person accused, and not convicted, during the hearing before the magistrate.

In choosing between these views, it is pertinent to observe that the narrow one accords ill with the operation of the subsection in respect of the cases it always covered, which were cases where the evidence showed there would in fact be a new trial. A reasonable view of the amendment would see it as designed to secure the same result in an additional category of cases not previously covered. It would be a very ineffective remedy to provide (in cases involving treaties requiring evidence in respect of persons accused) for the adducing of a prima facie prosecution case only, and in all other cases merely for the production of the formal documents evidencing an accusation destined never to be pursued. I do not think Parliament envisaged a real requisition, for the purpose of imprisonment, conclusively deemed to be only for trial, and on that basis not requiring to be supported by evidence of any conviction acceptable according to our notions of justice. That would be a curious rule to be adopted by Parliament as ensuring that some proof would be provided! (Which is the object the explanatory memorandum suggests.) It would be still more curious if the extension of protection to a new category of cases were not merely illusory in itself, but lost, for those convicted of contumacy, the protection they had always had; yet the narrow construction would inevitably have this result. Cf the passage cited above from Athanassiadis ' case at 295.

It is true that the legal system of a particular foreign country may forbid a further trial of a person convicted in his absence, so that the broad construction might prevent extradition in such a case. But Parliament, looking at Zezza 's case and at the possibility an absent accused may never have had an opportunity to be heard, may well have preferred a refusal of extradition, in that situation, to a grant of it on the basis of an accusation which will not be pursued. Parliament may have taken that view, if the problem had been explained accurately; what is practically certain, on the face of the explanatory memorandum, is that it did not intend to do away with evidence altogether, both here and after extradition.

The specific intention disclosed by the explanatory memorandum having failed, it remains clear that a broad intention is disclosed to provide a remedy for the situation where a person was finally convicted in his absence. As this legislation is remedial, if a construction allowing the remedy to be effective is fairly open, it should be adopted. To the rule enjoining promotion of the remedy must here be added the principle which requires the court, when it interprets a law authorising the detention of a person, to give weight to the "serious consequences for the liberty of the individual" involved in the law: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518-520, 522-523, 531- 532; and cf Khera and Khawaja v Secretary of State for the Home Department [1984] AC 74 at 111-112, per Lord Scarman. In Beane 's case Brennan J said (at 523): "[A] statute or statutory instrument which purports *498 to impair a right to personal liberty is interpreted, if possible, so as to respect that right ..." In his powerful dissenting judgment (with which Lord Wilberforce agreed) in Cheng v Governor of Pentonville Prison [1973] AC 931 at 955, Lord Simon of Glaisdale said:

"A fugitive offender against the criminal law of a foreign State being thus protected by the common law from arrest for the purpose of extradition, the Extradition Act 1870 and the Orders in Council implementing it were necessarily in derogation from the common law. It follows that the positive powers under the Act should be given a restrictive construction and the exceptions from those positive powers a liberal construction ...

Since the common law, as so often, favours the freedom of the individual, the rules enjoining strict construction of a penal statute or of a provision in derogation of liberty ... merely reinforce the presumption against change in the common law."

Much of this passage was quoted and relied on by a Full Court of this Court in Schlieske v Federal Republic of Germany (1987) 14 FCR 424 at 430-431.

Another fundamental principle is involved in all extradition cases. It is that extradition is only lawful, in a common law country, when carried out pursuant to statutory authority: see Barton v Commonwealth (1974) 131 CLR 477 at 483, per Barwick CJ; Beane 's case (supra) at 230, 236, 241, 247-248; R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 at 299-300. The historic purpose of the Extradition Act 1870 was to provide the first general statutory authority in England, permitting the executive to implement treaties of extradition by taking the necessary steps pursuant to requisitions submitted by foreign states. Central to that Act, and to the Australian Extradition Act which is substantially modelled on it, is the requisition itself and the provision for executive action upon the requisition, to be mediated through the hearing before a magistrate. Under the Extradition Act, everything depends upon the requisition and the notice by which there is transmitted to the magistrate its demand for the surrender of the fugitive. Even the definition of an extradition crime, contained in s 4(1A) and (1B), only operates in respect of an offence "for which a requisition for the surrender of a person has been made", so that the definition of "fugitive" in s 4(1) ("a person accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in a foreign state ...") necessarily picks up, by the use of the expression "extradition crime", the requirement of a requisition; and the liability to be surrendered, which is imposed by s 12, also refers to "the requisition for the surrender of the fugitive". The primacy of the requisition was clearly shown in the joint judgment of Sweeney, Jenkinson and Neaves JJ in Klepp v Gibb (1988) 81 ALR 383 at 393, where they said:

"[W]e are satisfied that, in order to sustain a requisition for the surrender of a person who is alleged to have committed an extradition crime as defined, it is necessary that the requesting State furnish to the requested State a duly authenticated document which satisfies the following requirements. It must set out the essential elements of each offence for which surrender is sought, clearly identify the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof, and give sufficient particularity to *499 ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made."

Compare Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 78-79; Government of the Federal Republic of Germany v Sotiriadis [1975] AC 1 at 25.

The Extradition Act should thus be seen as an Act authorising the executive to take steps which are centred upon the receipt of a requisition, and upon action taken in relation to it. The requisition is not a document known to our law only; it is an essential element of the international procedure with which the Extradition Act is concerned. The Extradition Act must necessarily be understood in the light of its fundamental purpose of enabling that procedure, not only to be availed of by Australia, but also to be applied lawfully within Australia. When, therefore, s 4(3) makes its provision "for the purposes of this Act", the first of those purposes is the requisition. Until it has been made to the Attorney-General, the Act has no relevant purposes, and the offence cannot even be referred to as an extradition crime. The Extradition Act will not deem anything about the offence in the absence of a requisition.

Section 4(3) is not, as the respondent's argument would have it, solely, or even mainly, concerned with the adducing of evidence before the magistrate. It is concerned with the basis on which the Act should operate against a person convicted in the way it envisages. The gateway to an understanding of it is the requisition. For the first purpose of the Act in relation to the extradition of any particular individual, the purpose of authorising the receipt of the requisition and the taking of action upon it to initiate proceedings against that individual as a fugitive, he is deemed (in a case to which the provision applies) not to have been convicted. That is the primary statement in the subsection, from which it follows that no requisition can be lawfully presented requiring his extradition as a convict. However, the legislature saw the difficulty that a requisition for such a person's surrender, as an accused person, might be met (as indeed it was in the Caborn-Waterfield case) by the defence that he is not in fact accused, since he has already been convicted. Therefore, the secondary operation of the provision, introduced by the word "but", was desirable to ensure that the foreign state, debarred from seeking him as a convict, might seek his extradition as an accused person. For that purpose of the Act, and of course thereafter, he is deemed to be an accused person.

It would be an absurdity to deem a man accused unless he actually is accused, and the requisition making his offence an extradition crime requests his extradition as a person accused; for he cannot have been deemed to be accused before the requisition was made, nor, after it was made, of anything it did not validly embrace. For example, a requisition may seek extradition for an offence other than that of which the fugitive was convicted in his absence, though perhaps constituted by the same facts. Is s 4(3) to be construed so literally that he must be deemed accused of an offence not referred to in the requisition?

A person sought as a convict is not, or is no longer, actually accused. It follows that the legislature can have had no interest in deeming him to be accused, even if s 4(3) should be regarded as designed to introduce an unreal presumed state of affairs. It was because the proper purpose of a requisition, *500 in respect of a person convicted of contumacy, was to pursue an accusation that it appeared necessary to avoid, by deeming him a person accused, any argument based on his conviction. There is no reason at all to doubt that the section was intended to operate in the way I have suggested when it was first drafted, and also during its subsequent verbal modification. The addition of another category of cases (those involving a final conviction), without any alteration of the framework of the provision, is a slight basis on which to give that framework a completely different effect. Section 4(3) can still sensibly be understood as it always was, with the addition of this new category of cases to its field of operation. It would make perfect sense of the amendment to understand it as intended to put those persons included in the provision by virtue of the amendment in the same position as those already covered, whose extradition could only be sought by a foreign state in order to put them on their trial.

If s 4(3) is understood in this way, it fits consistently into the operation of the Extradition Act. Suppose, for example, in a case, such as conspiracy to import drugs, where offences can be committed from outside a foreign state, a particular state made a requisition alleging a fugitive was accused of conspiracy, but making it clear there was no intention to try him for it, but simply to detain him in order to prevent him engaging in a suspected further offence. It would be hopeless for the State to argue the formal compliance of the requisition with the Extradition Act as a matter requiring such a requisition to be treated as lawful. If that is clear, why should s 4(3) be given a construction which would make a requisition in the class of case it covers uniquely binding? In both situations, the answer is that the Act only authorises requisitions in two cases - the case of a person accused of an extradition crime alleged to have been committed, and the case of a person convicted of an extradition crime that was committed - and that if a person has not been so convicted, his extradition can only be lawfully sought for the purpose of putting him on his trial as a person accused. There is an irony in the argument to the contrary, based on s 4(3), since the progenitor of that provision was framed to ensure that the Act was not misapplied by the extradition as a convict of a man not yet properly tried. But that the purpose for which extradition is sought is, in any case, open to examination is made clear by Atkinson v United States of America Government [1971] AC 197 at 230-231, 237; and see R v Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46.

Earlier in these reasons, I cited passages from authorities showing that the United Kingdom provision, from which s 4(3) evolved, is concerned, as Salmon J said in R v Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498, with whether a fugitive is "surrendered for trial" or "surrendered to serve his sentence". It has, however, been argued that the Extradition Act is differently framed. A comparison of the provisions of the Extradition Act with those of the Extradition Act 1870, which is conveniently set out as Appendix 1 in Vol 1 of Hartley Booth, British Extradition Law and Procedure (1980), demonstrates clearly, to my mind, that the operation of the Australian Act is relevantly indistinguishable from that of the Extradition Act 1870. This is not surprising, since the two acts apply the same common law solution to the one international procedure of requisition in respect of fugitive offenders; and, in any case, it is plain the draftsman of the Extradition Act has taken the earlier act as a model. The real difference, for *501 present purposes, between the two Acts is the deliberate insertion into s 4(3) of a reference to the case of a final conviction.

The crucial section providing for the liability of a fugitive to be surrendered, s 12 of the Extradition Act, mirrors the substance of s 6 of the Act of 1870; s 15 (which authorises the Attorney-General to give his notice) mirrors s 7 of the Act of 1870 (under which the Secretary of State may issue an "order" having substantially the same effect); and s 17(6) (the section governing the hearing before the magistrate) mirrors the bifurcation by which s 10 of the 1870 Act deals pithily with the two cases of accused and convicted fugitives. The prescribed form of Attorney-General's notice (which will be found conveniently set out in Schlieske v Federal Republic of Germany (No 2) (1987) 26 A Crim R 341 at 344-345 requires the distinction to be maintained. In the present case, a procrustean application of the requisition, read with s 4(3), to this form has resulted in the appellant being described as "accused", despite the clear statement made in the Federal Republic's requisition.

It is of interest to note that the Extradition Act 1988 (Cth) (not yet proclaimed) contains in s 10(1) a provision corresponding to s 4(3), and worded in closely similar language. The replacement explanatory memorandum (which does not in this respect differ from the original), circulated by authority of the Attorney-General when the Bill which became the Act was before the House of Representatives, refers to s 10(1) in the following terms: "Sub-clause (1) ensures that a person who has been convicted of an offence in his or her absence is treated as an accused person and not as a convicted person." Those words are perfectly general, not limiting the treatment, to which they refer, by reference to the technicalities of the hearing before the magistrate. It would add an element of the bizarre to our extradition law if this Court felt compelled to construe the same words in s 4(3), in the uncertain light of the only explanatory memoranda available in relation to the Extradition Act, as having a different effect from that which it is clear they are intended to have in s 10(1) of the Extradition Act 1988.

The construction I have placed upon s 4(3) gives meaning to all of its words. It is true that it restricts the meaning of the final clause, but that clause is a subordinate clause, which may appropriately be construed by reference to its context. An important part of the context makes the provision operate "for the purposes of this Act", words which are not given their full effect unless they are understood to deny that a person convicted in his absence may be the subject of a requisition for the purpose of making him undergo the sentence imposed upon that conviction. The Act should not be construed as speaking with two tongues, and if such a person "shall be deemed not to have been convicted", it cannot authorise the acceptance of a requisition and the issue of an Attorney-General's notice for the purpose of his extradition as a convict to serve his sentence. The purposes of the Act at least include the authorisation of the executive to carry out extradition in appropriate cases, and the setting up of judicial procedures to ensure that this authorisation does not operate oppressively. The common law, as I have already pointed out, makes such an authorisation indispensable, and it is certainly within the purposes of the Act. Section 4(3) ensures that those purposes do not include an extradition with the object of carrying out a sentence imposed upon a person convicted in his absence.

What appears to stand in the way of giving s 4(3) this simple effect is its *502 second operative provision, "but shall be deemed to be accused of that offence". When those words were originally drafted, in reliance on the law laid down by Lord Chelmsford LC, there was no problem. They referred to a person who was in fact accused, and only accused; indeed they were perhaps strictly unnecessary, being inserted ex majore cautela. If, now that cases involving final convictions are included, the last part of the section is construed as authorising a requisition for the purpose of enforcing a conviction in relation to a person deemed not to have been convicted, the whole provision will become inherently contradictory. Granted that deeming clauses can have an artificial operation, to have in effect two such clauses blowing hot and cold so as to produce that effect would be extraordinary. What is sauce for the fugitive should be sauce for the requesting country.

There is no doubt that the word "deemed" may be used in a statute in various senses. It may refer to a fictional state of affairs which must be accepted, though plainly contrary to fact; but it may also refer to the true state of affairs: see Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65-67, per Windeyer J. He said (at 67):

"There is no presumption, still less any rule, that wherever the word 'deemed' appears in a statute it demonstrates a 'fiction' or some abnormality of terminology. Sometimes it does. Often it does not."

See also University of Wollongong v Metwally (1984) 158 CLR 447 at 465; Re Application of News Corp Ltd (1987) 15 FCR 227 at 239-240, 253-254; Commissioner for Superannuation v Bayley (1979) 41 FLR 385 at 401; Ex parte Armstrong; Re Hughes (1962) 80 WN (NSW) 566 at 568; Williams v Town of Claremont [1976] WAR 125; and cf R v County Council of Norfolk (1891) 60 LJQB 379 at 380-381, per Cave J; Hoath v Chancery Nominees Pty Ltd [1982] WAR 269. Where a deeming provision is used in an artificial way, the warning uttered by Fisher J in Commissioner of Taxation (Cth) v Comber (1986) 10 FCR 88 at 96 is clearly apposite:

"In my opinion deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to: Re Levy; Ex parte Walton (1881) 17 Ch D 746, per James LJ (at 756). It is improper in my view to extend by implication the express application of such a statutory fiction."

The same point was alluded to by Griffith CJ in Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696, citing Hill v East and West India Dock Co (1884) 9 App Cas 448 at 456. I have already stated the purpose for which, as it seems to me, it is plain the concluding words of s 4(3) were originally inserted into the section, following the raising in argument in Re Coppin (1866) 2 Ch App 47 of the question whether a convicted person, though sought for re-trial, could properly be described as "accused".

To authorise the arrest of an individual, not because he has broken an Australian law, but at the request of another country, is an awesome assertion of the power of the State over people within its borders. Under the rule of law, it cannot be done - and the courts have a duty to see to it that it cannot be done - except by express and unambiguous statutory provision. Only then can there be an assurance that the protection of the general interests of society will not involve the sacrifice of the most basic rights of its individual members. Therefore, the principle of construction of acts affecting the liberty of the subject must not be brushed aside because the protection offered in the statute is less than glowingly clear: it is when the language is *503 obscure that the principle is required. In other cases, simple literalism would suffice. The principle is not an arrogation by the courts of authority to alter legislation: it is a rule of interpretation of the will of Parliament founded on the solid probability that only the obscurity of the language allowed a provision, which might possibly be construed in a sense disastrous to the individual, to be passed without clarification. How strong this probability actually is, the history of the section under consideration exemplifies. The only reasonable inference, from the explanatory memorandum and the Attorney-General's remarks in the Parliament, is that a clear provision to the effect contended for by the respondent would have been diametrically opposed to the intention with which the provision was actually passed.

I do not think it is a valid objection to the construction of s 4(3), which I have put forward, that it would require the rejection of a requisition for the surrender of a fugitive convicted in his absence, where the foreign State was unwilling or unable to put him on his trial if surrendered. The provision has to operate in a wide variety of circumstances, and it must operate arbitrarily in some of them; it is better that it do so in favour of the individual, than that it produce an unjust incarceration. A firm decision to exclude punishment, of persons surrendered by the Commonwealth of Australia to a foreign State, under a conviction obtained in absentia would be quite in keeping with the history of extradition law. Sovereign States have always jealously insisted upon an interest in the fate of the individuals they are prepared to surrender, as an act of their own sovereign power, to be judged and possibly condemned, or to undergo punishment, by another State. The exclusion of a form of punishment or of a category of crime, for example, is widely recognised. It would not be in keeping with the history of extradition to blur the distinction between surrender for trial and surrender as a convict, as if the fate of the individual were no affair of Australia's.

Indeed, it is perhaps reasonably well understood that concern about the consequences for the person surrendered has always been a feature of extradition laws. The most ancient known treaty of extradition, concluded between the Egyptians and the Hittites in the 13th century BC, contains terms as to the treatment those surrendered would receive; there was to be no infliction of savage punishments upon them, as, for example, by mutilation: see I A Shearer, Extradition in International Law (1971), ch 1. A more colourful account, including a translation of part of the treaty as inscribed on the walls of Karnak, is given by Amelia B Edwards, the Victorian Egyptologist, A Thousand Miles up the Nile, p 266.

It follows from the foregoing discussion that the purpose avowed in the requisition for the surrender of the appellant (which states "the extradition of Mr Wiest is now sought for the execution of a prison sentence of one year and three months ...") is in irreconcilable conflict with the Act, unless the appellant should not be described as "a person [who] has been convicted in the absence of the person". As was said by Miller J for the Supreme Court of the United States in United States v Rauscher 119 US 407 at 422 (1886):

"[I]t is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth *504 can be sustained by a tribunal called upon to give judicial construction to them."

(In the present case, of course, the Act and the regulations made under it supply the place of a treaty, since no treaty has been concluded.)

As to whether s 4(3), upon its true construction, embraces a person who has left the foreign jurisdiction voluntarily, at a time when he knew the prosecution against him would be proceeding, it is necessary to give further attention to the terms of the provision. The change of the expression "person ... convicted in his absence", employed in the 1973 version of the Act, to the awkwardly repetitive "person ... convicted in the absence of the person" may appear, at first sight, to underline strongly the significance of personal presence at the hearing. But this is probably simply an unfortunate by-product of the draftsman's abhorrence of the masculine pronoun, which is only equalled by his aversion (noted by Gummow J) to the Latin resources of the language. Diverting though the vagaries of the drafting may be, the point to be made is simply that an argument raised during the hearing, grounded on the emphatic asseveration apparently made by the phrase under discussion, is answered by the evolution of the verbiage of the provision. Section 4(3) should be understood, without emphasis, as if it still read "in his absence".

Yet the deliberate inclusion of cases of final conviction, and the breadth of the language by which it is done ("whether or not the conviction is a final conviction") make it clear that the provision is intended to have a wide application. The draftsman having eschewed technical language, there is really no point at which the natural meaning of the words used can be reined in so as to exclude a case such as the present. As a matter of ordinary English, the appellant is a person who has been convicted in his absence. And if there be any doubt, the passages which I have cited from Beane 's case and Cheng ' s case would argue strongly for a construction in favour of the appellant. In any event, the Caborn-Waterfield case is clear authority against permitting the respondent to seek to uphold the order made against the appellant, as an accused person, upon the fundamentally different basis that the appellant is a convicted person. Nor, if the cases to which Gummow J has referred in his reasons, where a trial was permitted to proceed in the absence of the accused, were regarded as applicable to the construction of s 4(3), could the material necessary for their application be found in the present case. There is simply insufficient information about the precise circumstances in which the appellant came to absent himself from the Federal Republic at the time of the concluding stages of his trial, and by virtue of s 18(3) and (5) the court is precluded from receiving any fresh material.

For these reasons, in my opinion, the appeal should be allowed.

Gummow J.

Introduction

These appeals from decisions of Davies J and Pincus J were heard together. The decision of Davies J is reported (1988) 81 ALR 129. The Federal Republic of Germany (Federal Republic) seeks the surrender of the appellant as a fugitive to whom apply the provisions of the Extradition (Foreign States) Act 1966 (Cth) (the Extradition Act) and the Extradition (Federal Republic of Germany) Regulations 1985 *505 (Cth). The Director of Public Prosecutions is a party to the proceedings in this Court pursuant to the statutory provisions discussed by French J in Hempel v Moore (1987) 13 FCR 480.

The jurisdiction of the court in the application to Davies J was attracted by s 39B of the Judiciary Act (1903) (Cth) (the Judiciary Act). That to Pincus J was based on s 18 of the Extradition Act. In each case, reliance also was placed upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). I agree with what has been said by Burchett J on the subjects of the competency of the proceedings in so far as they were based on the ADJR Act, and the displacement by ss 17A and 18 of the Extradition Act of the provisions of the ADJR Act in so far as they permit review of the decisions of magistrates specified by ss 17A and 18.

The appellant was arrested in Australia on 21 October 1987 pursuant to a warrant of apprehension dated 19 October 1987 and issued pursuant to s 16 of the Extradition Act. On 1 December 1987, the Attorney-General issued a notice under s 15(1)(b) of the Extradition Act. This recited the issue of the warrant and the making to him of a requisition by the Federal Republic for the surrender of the appellant as a fugitive who was accused of the offences of fraud and forgery against the law of the Federal Republic. The requisition was dated 24 November 1987. The notice dated 1 December 1987 went on to state the opinion of the Attorney-General that the appellant was liable to be surrendered to the Federal Republic, that the offences to which the requisition related were neither in essence or by reason of the circumstances in which they were alleged to have been committed, offences of a political character and that the requisition had not been made with a view to punish the appellant for an offence of a political character.

Proceedings pursuant to s 17(6) of the Extradition Act were conducted on 5 February and 27 April 1988 before Mr David Armati, Magistrate. The form of undertaking as to speciality which was tendered before Mr Armati in purported compliance with s 13(2) of the Extradition Act was in a form which was held in this Court to be defective: Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79. Counsel for the Director of Public Prosecutions sought leave to reopen his case before Mr Armati so as to tender an additional undertaking in proper form. Leave was refused and accordingly Mr Armati made an order under s 17(6) for the release of the appellant.

On the same day, 27 April 1988, Mr Armati issued a fresh warrant for the apprehension of the appellant, pursuant to s 16 of the Extradition Act. On 1 May 1988 the Attorney-General issued a fresh notice under s 15(1)(b) of the Extradition Act; this recites receipt of a requisition by the Federal Republic for the surrender of the appellant. The requisition was a fresh requisition and was dated 29 April 1988. It stated that the Federal Republic submitted a warrant of arrest dated 11 February 1987 and a judgment of the Local Court of Bonn bearing the same date. The requisition contained the following passage:

"Furthermore it is advised that the extradition of MR WIEST is now sought for the execution of a prison sentence of one year and three months after an appeal of the above-named to the Higher Regional Court of Cologne has failed and the sentence of the Local Court of *506 Bonn has become final and enforcable [sic] by execution since 03.11.1987."

On 18 May 1988, the appellant applied to this Court for orders restraining proceedings on the warrant dated 27 April 1988. The application was heard by Davies J on that day. It was submitted for the appellant that the order made by Mr Armati on 27 April 1988 for the release of the appellant was an order which finally released him from extradition with respect to the charges to which the proceedings before Mr Armati had related. Reliance was placed principally upon what were said to be applicable principles of res judicata and issue estoppel. On 27 May 1988, Davies J delivered judgment dismissing the application; it is against this judgment that the first appeal is brought.

Proceedings under s 17(6) of the Extradition Act then commenced on 30 May 1988 before Mr Miszalski, magistrate, and on 31 May 1988 the appellant was committed to prison. On 3 June 1988, the appellant filed an application seeking review by this Court of the decision of Mr Miszalski. In the course of the hearing before Pincus J on 25 July 1988, leave was granted to file an amended application. The principal ground of the application concerned the operation of s 17(6)(a)(i)(C) of the Extradition Act. This requires that the magistrate have before him "a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested". The fundamental contention before Pincus J was that no such statement was produced.

A second complaint before Pincus J was that evidence bearing upon the state of mind of the appellant had been rejected by the magistrate in misplaced reliance upon s 17(6A) of the Extradition Act. As it applied to the proceedings before Mr Miszalski, this provided that the appellant was not entitled to adduce, and Mr Miszalski was not entitled to receive "evidence to controvert an allegation that [the appellant had] committed an act or omission in respect of which the surrender of the person [was] requested".

A third complaint which Pincus J in his judgment describes as having been made but not strongly pressed was that the magistrate should have held that the attempt to extradite the appellant was an abuse of process.

On 28 July 1988, Pincus J delivered judgment in which he refused the application for review. This judgment provides the subject-matter of the second appeal.

I turn now to consider the proceedings in the Federal Republic which led to the requisition for the surrender of the appellant as a fugitive within the meaning of the Extradition Act.

On 11 February 1987, the Local Court of Bonn in the Federal Republic, ordered, judged and decreed that the appellant be sentenced to imprisonment for a term of one year and three months for offences under ss 263(I), 267(I) and 52 of the German Criminal Code of 15 May 1871, as amended (the Criminal Code).

Section 263 of the Criminal Code provides as follows:

"I He who, with the intention of procuring for himself an unlawful pecuniary advantage, damages another person's property by arousing or maintaining an error through false pretences or through a distortion or concealment of true facts, shall be punished with imprisonment for a term of up to five years or by a fine.

II The attempt shall be punishable.

III In particularly serious cases, the term of imprisonment shall be *507 between one year and ten years.

IV § 243(2) as well as §§ 247 and 248a shall apply mutatis mutandis.

V The Court may order a supervision of conduct (Section 68, Paragraph 1)."

Section 267 provides:

"I He who, for the purpose of practicing [sic] deceit in legal relations, produces a false document, falsifies a genuine document, or uses a false or falsified document, shall be punished with imprisonment for a term of up to five years or by a fine.

II The attempt shall be punishable.

III In particularly serious cases, punishment shall be a term of imprisonment of not less than one year."

Section 52 provides:

"I If one and the same act infringes several penal laws or one penal law repeatedly, only one penalty will be imposed on the offender.

II If several penal laws have been infringed, the penalty will be determined by the law that provides the severest punishment. It must not be milder than is admitted by the provisions of the other laws applicable.

III The Court may separately impose a fine in addition to a penalty of imprisonment provided that the requirements of Section 41 are fulfilled.

IV Supplementary penalties, incidental consequences and measures (Section 11, Paragraph 1, No 8) must or may be imposed if one of the laws applicable in the respective case prescribes or admits them."

The nature of the proceedings in the Federal Republic appears from the foreign warrant dated 11 February 1987 produced to Mr Miszalski pursuant to s 17(6)(a)(i)(A) of the Extradition Act. The warrant is in the following terms:

"Warrant of Arrest

It is hereby ordered that the accused real estate dealer Eugen Alexander Wiest, born on June 4, 1948, at Rottweil/Neckar, residing at Bernhardstrasse 23-25 in 5300 Bonn 3, last place of abode: Sheraton Hotel, Exhibition Street 239, State of Victoria, Australia, German national, married, be taken into custody pending further investigations.

He is charged with having, late in December 1985 at Bonn, coincidently, [sic] with the intention of procuring for himself an unlawful pecuniary advantage, damaged another person's property by arousing an error through false pretences, for the purpose of practising deceit in legal relations, falsified a genuine document and used a falsified document.

The accused and the STRABAG BAU AKTIENGESELLSCHAFT (company limited by shares) were jointly authorized to sign for the account of a joint venture group formed by them. By letter of December 20, 1985, the accused was sent a transfer order by the STRABAG company, this transfer order being made out to the amount of 224,600. - deutschmarks in favour of HANDWERKSBAU RHEINLAND-PFALZ and signed already by an employee of STRABAG, and he was asked to put the second necessary signature to the document.

He himself or an assistant acting according to his instructions *508 changed, late in December 1985, the name of the transferee to 'Wiest und Companie im Auftrag AIT' (Wiest and Company by order of AIT) and inserted the account No 116 061 with 'WEST LB KOLN' (Westdeutsche Landesbank in Cologne), for which account he had the sole power of disposition. The accused then signed the document concerned.

The transfer order was forwarded to the Bad Godesberg KREDITBANK EINGETRAGENE GENOSSENSCHAFT (cooperative bank). When being asked about this by a member of the bank's board of directors, the accused confirmed that the alterations had been made with the consent of the STRABAG company.

The accused closed the account of the Wiest firm after the money had been transferred and withdrew the funds in cash on December 31, 1985.

Criminal offences punishable under Sections 263(I), 267(I), 52 of the Strafgesetzbuch (German Criminal Code).

He is strongly suspected of having committed this criminal act because he is considerable [sic] incriminated by both documentary evidence and evidence of witnesses. By the judgment of the Bonn Schoffengericht (court with a professional judge and two lay assessors) dated February 11, 1987, which has not yet become final, he was sentenced to imprisonment for a term of one year and 3 months.

There exists the cause of arrest against him that is specified in Section 112, Paragraph 2, No 1 of the Strafprozessordnung (German code of criminal procedure) because he is a fugitive from justice. Official investigations by way of informal evidence, which were carried on with the help of the Consulate General in Melbourne, have proved that he has made off in the pending proceedings by going abroad and, in the beginning of February 1987, stayed in the Sheraton Hotel at 239 Exhibition Street, Melbourne, State of Victoria, Australia."

The trial of the appellant was conducted in the Local Court at Bonn before a professional judge and two lay assessors on 25 November and 2, 9, 11, 16, 18, 19, 29 December 1986, and 6, 9, 13, 15 January and 2, 4, 10, 11 February 1987. The appellant was represented by counsel throughout the trial. During the course of the trial, on 22 January 1987, the appellant obtained a visa from the Australian authorities in Bonn and left the Federal Republic. He arrived in Australia on 28 January 1987. On 4 February 1987, the appellant was located at the Sheraton Hotel in Melbourne. In the judgment delivered at Bonn on 11 February 1987 the appellant's last place of abode is stated as being in that hotel, and he is stated to have "evaded the current proceedings by taking flight". An appeal was brought on behalf of the appellant to the Higher Regional Court of Cologne. The appellant did not return to the Federal Republic for the appeal. The appeal failed and the sentence of the Local Court of Bonn became "final and enforceable by execution" on 3 November 1987.

Section 4(3) of the Extradition Act

The appellant sought to add additional grounds of appeal to raise issues as to the proper construction of s 4(3) of the Extradition Act. The appellant wished to argue that s 4(3) ensured that a requesting State seeking a fugitive who has been tried in his absence must request him for trial and not, as was done here, for the purpose of carrying out a sentence; the appellant sought *509 to argue that there had been a failure by the Federal Republic to specify this both in the request (s 15) and the warrant: s 17(6)(a)(i)(A).

This led to the need for leave to amend the grounds of appeal and leave was sought to present written submissions. The parties presented written submissions after directions were given in Chambers on 7 October 1988.

The respondents referred to the apparently strict time limits specified in s 18(1) and (4) of the Extradition Act, and sought to characterise the appellant's application as an attempt to institute in this Court new proceedings out of time. The respondents relied upon Nile v Wood (1988) 62 ALJR 52, a decision upon the Commonwealth Electoral Act 1918 (Cth), s 355.

Both sides prepared comprehensive written submissions going also to the substantive questions that would arise if leave were granted. In my view, it is not necessary to decide if the reasoning in Nile v Wood is applicable to the Extradition Act. This is because if leave were granted to add the additional grounds, they would not bring success to the appellant. Leave should be refused. However, in consideration of those comprehensive submissions, I should state my conclusions on the points raised in them.

Section 4(3) of the Extradition Act provides:

"Where a person has been convicted in the absence of the person of an offence against the law of, or a part of, a foreign state, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence."

Section 4(3) was introduced by the Extradition (Foreign States) Amendment Act 1985 (Cth). On the Second Reading Speech on the Bill for that Act, the Attorney-General said the following (Australia, House of Representatives, Debates, 1985, No 3, 596):

"Convictions In Absentia: This amendment will make it clear that, where a fugitive is sought for an offence in respect of which he has been convicted in absentia, whether that conviction is final or not, the requesting country must produce evidence of guilt as well as of the conviction."

The Second Reading Speech indicates that the essential parliamentary intention was to place those persons to whom s 4(3) applied on the same footing as persons who were accused of an extradition crime. However, the Second Reading Speech proceeds upon a false hypothesis. This is that in respect of fugitives accused of extradition crimes, the Extradition Act always obliges the requesting country to produce evidence of guilt, rather than merely the authenticated statement of the acts or omissions in respect of which surrender is requested, as specified in s 17(6)(a)(i)(C).

It is true that by reason of regulations made under the Extradition Act, the statute may apply in relation to a particular State subject to specified limitations, conditions, exceptions or qualifications: s 11. In such cases, there must be produced to a magistrate acting pursuant to s 17(6)(a) any documents required by those limitations, conditions, exceptions or qualifications, in addition to the other materials specified by s 17(6)(a). Thus, as Fox J observed in Linhart v Elms (1988) 81 ALR 557 at 560, there may be differences in the extradition laws applicable to some foreign States as compared with others. In the case of the Federal Republic, reg 4 of the Extradition (Federal Republic of Germany) Regulations 1985, originally *510 required evidence of the act or omission in question to be produced in connection with the requisition; this is no longer so, by reason of the replacement of reg 4 by SR No 294 of 1986. (These amendments did not apply at the time the facts occurred with which Schlieske v Federal Republic of Germany (1987) 14 FCR 424, was concerned.)

A different position appears to obtain with respect to extradition under the Extradition (Commonwealth Countries) Act 1966 (Cth), as amended by s 10(e) of the Extradition (Commonwealth Countries) Amendment Act 1985 (Cth), the Bill for which was introduced immediately before the Bill for the Extradition (Foreign States) Amendment Act 1985 (Cth). Section 15(6)(b)(i) of the Commonwealth extradition statute now speaks of evidence produced in connection with the requisition for surrender of a person accused of an extradition crime; to put it shortly, this evidence must be such, in the opinion of the magistrate, as would justify the trial of that person. There appears to have been confusion by the Attorney-General between this provision and s 17(6)(a)(i)(C) of the Extradition Act, which has no such requirement.

This is thus an example of the oversight or inadvertence referred to by the High Court in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, per Mason CJ, Wilson, Dawson JJ, and the words of the Second Reading Speech as to production of evidence of guilt cannot replace the terms of the legislation itself.

However, in my view, what s 4(3) of the Extradition Act did achieve was the placing of those to whom it applied on the same footing as those fugitives who are accused but not convicted of an offence. But to whom does s 4(3) apply? Did it apply to the appellant? This depends upon the meaning given to the expression "a person convicted in the absence of the person".

Proceedings before both magistrates have been conducted as if this subsection applied to the present case. Accordingly, the documentation produced under s 17(6)(a) of the Extradition Act has been put forward as that appropriate to the case of a person accused of an extradition crime, rather than to the case of a person convicted of an extradition crime. I will return later further to consider the provisions of s 17(6), but it is sufficient at this point to note that the requirements in respect of documents to be produced to the magistrate under that provision are more complex in the case of those persons accused of extradition crimes than in the case of persons who are alleged to have been convicted of extradition crimes.

In approaching the construction of s 4(3) of the Australian Extradition Act, it is necessary to turn first to its precursors.

Section 26 of the Extradition Act 1870 (Imp) provides that the terms "conviction" and "convicted" do not include or refer to a conviction which under foreign law is a conviction for contumacy, but the term "accused person" includes a person so convicted for contumacy. In Australia, s 4(3) of the Extradition Act provided in the original form introduced in 1966:

"For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a foreign state where the conviction is, under that law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against that law."

"Contumacy" has as one of its meanings wilful disobedience to the summons of a court; in extradition law, it has a special meaning in relation to trials and convictions in absentia.*511

In Athanassiadis v Government of Greece [1971] AC 282 at 295, Viscount Dilhorne said:

"A conviction for contumacy is unknown under our law. It is not apparent from the Act of 1870 why a person so convicted under foreign law was required to be dealt with as an accused person. Light is, however, thrown on this by the decision in Re Coppin (1866) 2 Ch App 47 where the prisoner whose extradition was sought had been condemned par contumace in France. Evidence was given by a French advocate that a judgment par contumace is annulled if the person to whom it relates is arrested or surrenders himself 'so that it is exactly the same as if no proceedings had been taken against him, and then he undergoes his trial for the offence with which he was charged'. Lord Chelmsford LC said that in these circumstances he did not see how the prisoner could be described otherwise than as an accused person.

If the fact be that, on his arrest or surrender, the accused person will be put on trial as if he had never been convicted in his absence, it is clearly right that he should be dealt with in this country not as a convicted but as an accused person. The definition in s 26 secures this."

That result was also secured by s 4(3) of the Australian Act in its original form.

A fresh s 4(3) was inserted in the Australian Extradition Act by s 4 of the Extradition (Foreign States) Act 1973 (Cth). The new subsection removed the reference to conviction for contumacy and provided:

"Where -

(a) a person has been convicted in his absence of an offence against the law of, or of a part of, a foreign state; and

(b) the conviction is not a final conviction,

then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence."

This change in the legislation followed the apparent approval of the House of Lords in Athanassiadis ' case of the decision of the Divisional Court in Governor of Brixton Prison; Ex parte Caborn-Waterfield [1960] 2 QB 498. In the earlier case, it was held that the words "conviction for contumacy" in s 26 of the 1870 statute were a translation of the French term par contumace and did not include a final jugement iteratif defaut as understood in French law. This was because on his surrender in respect of a conviction on a judgment of the latter character, the convict would not be retried and would be sent straight to prison without any further trial; the conviction operated as a final conviction and thus was quite different in character from a conviction par contumace. Accordingly, the fugitive had been properly treated as a convicted, not an accused person. The 1973 amendment to the Australian legislation in respect of the same facts as those in Athanassiadis ' case would have ensured the same result by making it clear that for classification as an accused the criterion was not conviction for contumacy as such, but a conviction that was not final. If it was final, then the fugitive would be dealt with as a person convicted of the offence.

The effect of the British decisions is discussed in V E H Booth, British Extradition Law and Procedure (1980), Vol 1, pp 99-101; see also Valentine, "When Is A Conviction Not A Conviction?" (1960) 23 MLR 697. They were *512 followed by the House of Lords in Governor of Pentonville Prison; Ex parte Zezza [1983] 1 AC 46.

Caborn-Waterfield 's case, Athanassiadis ' case and Zezza 's case all involved applications for writs of habeas corpus. The forms of warrant of apprehension, and of warrants of committal and for surrender of fugitives, contained in the Second Schedule to the Extradition Act 1870, drew a specified distinction between fugitives accused of crimes and those who had been convicted. A warrant which placed a fugitive in the wrong category was thus bad on its face and habeas corpus would lie. Hence the importance attached in these cases to whether the fugitive had been treated as a convicted or accused person.

It is important to understand that the different procedures described in the British cases had in common the characteristic that they were convictions in absentia in the sense that the accused had not been present throughout the proceedings, and particularly when the conviction was recorded. The special concern was with the distinction between final convictions and convictions of lesser quality.

In Britain, the question arose as to what if any ground existed for curial intervention where extradition was sought in respect of a person against whom a final conviction had been entered in his absence, and in circumstances where there was an alleged denial of natural justice. In Caborn-Waterfield 's case, it had been unnecessary to decide the point because there were no grounds for concluding that the conviction was contrary to natural justice, the accused having been served with the summons calling upon him to appear before the foreign court and the accused having chosen not to do so. However, in Royal Government of Greece v Governor of Brixton Prison [1971] AC 250, the question did arise. The accused had left Greece before the institution of proceedings, had not been personally served with any initiating process and had not been represented at the trial. The House of Lords held under the 1870 legislation the certificate of conviction placed before a magistrate was sufficient evidence, if uncontradicted by other evidence, that the person before the British Court was in fact convicted. Although that person might prove he was never convicted, it was not relevant for him to contend that his conviction was a nullity on the ground that there had been a denial of natural justice. The House held that this was not a matter for the court to consider but was one for the Secretary of State in exercising his discretion as to whether to allow the applicant to be extradited: see also Atkinson v United States Government [1971] AC 197 at 232-233, 235, 239, 247.

It is in that setting that one comes to the 1985 Australian amendment. In construing that legislation, it is not merely a question of looking at the literal meaning of the words used, even if that meaning appears clear. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, Mason J said:

"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."*513

In Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 387, McHugh JA said that what is required is:

"[A]n examination of the subject-matter of [the legislation], the mischief which existed before its enactment, the purpose which Parliament intended to achieve in enacting the section, and a determination of whether the construction contended for by either party advances that legislative purpose ..."

I have set out earlier in these reasons the relevant passage from the Second Reading Speech by the Attorney-General. He spoke of fugitives convicted in absentia. However, the apparent aversion of parliamentary counsel to the use of Latin phrases in statutes has meant that in the 1985 amendment (as in the 1973 amendment) a cumbersome collection of words has been used to express the same concept as that conveyed by the latinate "in absentia".

The new s 4(3) operates whether the conviction is or is not a final conviction; in either case (not just those where the conviction lacks finality) the person is deemed not to have been convicted of the offence in question, and is deemed to be accused of that offence. This has the effect of treating as within s 4(3) the convictions considered by the House of Lords in Athanassiadis ' case and Zezza 's case as being final in character, thus obliging the fugitives in question in being dealt with under the British legislation as convicted persons. The new Australian provision would indicate the opposite result on the facts of those cases.

Section 4(3) of the Extradition Act deems a state of affairs to exist "for the purposes of this Act". Sections 12, 14, 15, 16 and 17(1)-(5C) are directed to persons and fugitives, without distinction between the two classes of fugitive established by the definition of that term in s 4(1) viz persons accused and persons convicted of an extradition crime. The distinction is drawn, relevantly, in s 17(6)(a). This is the crucial provision for this case. The distinction may, in a given case and depending upon the identity of the State requesting extradition, be drawn in regulations envisaged by ss 10 and 11. These regulations may impose requirements (for example, retrial) as to the treatment of the fugitive on his return. But this is not done in reg 11(2) of the Extradition (Federal Republic of Germany) Regulations. And, in any event, the legal system of a requesting State may not envisage, and may forbid, the granting of a fresh trial to a person convicted in absentia.

In its operation in relation to s 17(6)(a), s 4(3) achieves the result that mere proof of conviction which resulted from trial in absentia of the fugitive may not be a sufficient indication that the fugitive has committed an extradition crime. What is required is that documentation which has to be produced in the case of a fugitive accused of an extradition crime, that is to say, the foreign warrant of arrest, a description of each offence and the penalty applicable, and a written statement of all the acts or omissions in respect of which the surrender of the fugitive is requested.

The provisions of the Extradition Act do not observe the dichotomy apparent in the Second Schedule to the British Act, to which I have referred. In my view, the phrase "for the purposes of the Act" in s 4(3) does not mean, as the appellant submitted, that all documents referred to or required by the Act, beginning with the requisition for surrender (s 15(1)), must identify and treat the convicted fugitive as if he were an accused. Nor, in my view, is s 4(3) designed to ensure that the requesting State seeking a fugitive *514 who has been convicted in absentia must request extradition for trial rather than to serve a sentence. The phrase "for the purposes of the Act" does not direct the reader to draw from the particular terms in which the legislation is expressed a general proposition as to the overall legislative intent and then read that back into provisions such as ss 15(1) and 17(6)(a)(i)(A), so as to oblige the requesting State to specify in the requisition and the warrant that there will be a further trial.

The question of the extradition to a foreign State of a fugitive, convicted in absentia, to serve his sentence rather than to stand a retrial, poses issues as to the acceptability to Australia of the system of criminal justice in that State. These issues are to be determined by the government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive under s 18A in exercise of the discretion there given the Attorney-General. The exercise of that discretion involves s 18A(1)(c) as a pre-condition, and s 18A(1)(d) as prohibitions. And the exercise of the discretion may involve more than a consideration of those matters: see Atkinson v United States Government [1971] AC 197 at 232-233, 235, 239, 247; Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 278, 281, 282, to which I have already referred.

For these reasons, if leave were granted to add the additional grounds sought by the appellant, this would not bring success in its train, and leave should be refused.

What remains for consideration is the effect to be given to the concept of trial in absentia expressed in the form of words taken in the 1985 and in the 1973 forms of s 4(3), respectively, "Where a person has been convicted in the absence of the person" and "where ... a person has been convicted in his absence of an offence ...".

In the light of some of the matters raised in the course of argument on the present appeals, I should consider whether in truth it was necessary for the Federal Republic to take the approach that it has. In my view, consideration of the events which I have outlined concerning the conduct of the appellant's trial, shows that there is a serious question as to whether s 4(3) applied to the appellant, and thus as to whether it was necessary for the Federal Republic and the Director of Public Prosecutions to have accepted the heavier burden as they did.

It is true that Mr Wiest was not present in court, or indeed, on the territory of the Federal Republic, on 11 February 1987 when judgment was delivered by the Local Court. That this was so was not the result of any law of the Federal Republic nor of any duress or other means which was exerted upon the appellant to prevent his continued attendance. It is clear from the materials before us that he left Germany in the course of his trial and of his own volition.

It is a requirement of the common law as understood in England and Australia that the prisoner be present throughout his trial for an indictable offence if he is in custody: Lawrence v The King [1933] AC 699. There may not be such a requirement at common law where the offence is a misdemeanour: R v Jones (No 2) (1972) 56 Cr App R 413 at 418-419. The right to be present is waived if, in the course of the trial and whilst on bail, the accused absconds or escapes from lawful custody; the judge then has a *515 discretion to continue the trial or to discharge the jury: R v McHardie [1983] 2 NSWLR 733.

In the United States, the right given under the common law has been transmuted into federal and State constitutional guarantees of due process. There is high authority that, at least in the case of trials for non-capital offences, the constitutional right may be waived if the accused absconds or otherwise voluntarily absents himself from his trial: Diaz v United States 223 US 442 at 449-459 (1912); Taylor v United States 414 US 17 (1973). (Compare as to waiver of the right to trial by jury, Brown v The Queen (1986) 160 CLR 171 at 179-180, 185-187, 193-196, 203-204, 209-211, where the United States decisions are discussed.)

In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of conviction in absentia as involving conviction in the absence of the accused, where his absence was the result of conduct on his part which amounted to a voluntary waiver of his right to be present. Further, the history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights. I bear in mind also the force of the observations, as to the correct approach to statutory construction, by Mason J and McHugh JA in the passages I have set out earlier in these reasons.

In my opinion, the better view is that a person has been convicted in his absence within the sense of s 4(3) of the Extradition Act where the absence of that person is the consequence of conduct constituting the voluntary waiver of a right to be present. However, as I have said, the proceedings before both Mr Armati and Mr Miszalski were conducted on the footing that s 4(3) did apply and I believe we should not now depart from that course.

The appeal from the decision of Pincus J

The provisions of s 17(6) of the Extradition Act are of central importance in consideration of the issues in the proceedings before Pincus J. Section 17(6) is in the following terms:

"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)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and-

(a) there is produced to the Magistrate-

(i) in 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 *516 all 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

(b) 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,

the Magistrate shall either-

(c) 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-General for the surrender of the person; or

(d) in the case of a person-

(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 in custody in respect of that offence,

on the person's entering into such recognisances 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 person be released."

Upon the hearing of the appeal from the decision of Pincus J, the appellant sought to add a further ground in addition to those upon which he had relied before the learned trial judge and to those concerning s 4(3) of the Extradition Act, with which I have already dealt. The further ground alleged noncompliance with s 17(6)(a)(i)(B) of the Extradition Act, the submission being that there had not been produced to Mr Miszalski a duly authenticated statement in writing setting out a description of each offence for which the surrender of the appellant was requested and the penalty applicable to each such offence. There was produced a duly authenticated statement in writing setting out the text of ss 263, 267 and 52 of the Criminal Code. I have set out earlier in these reasons the certified translation of those provisions. It is apparent that ss 263 and 52 contain references to other provisions of the Criminal Code; indeed, s 263(IV) states that three particular provisions "shall apply mutatis mutandis". The text of none of the provisions identified in ss 263 and 52 was produced to the magistrate.

In Klepp v Gibb (1988) 81 ALR 383 at 393, the Full Court of this Court said:*517

"[W]e are satisfied that, in order to sustain a requisition for the surrender of a person who is alleged to have committed an extradition crime as defined, it is necessary that the requesting State furnish to the requested State a duly authenticated document which satisfies the following requirements. It must set out the essential elements of each offence for which surrender is sought, clearly identify the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof, and give sufficient particularity to ensure that the requested State and the person whose surrender is sought are left in no doubt as to the basis upon which the requisition is made."

The appellant submitted to us that there had been no clear identification of the provisions of the foreign law creating the offence and the maximum penalty prescribed for a breach thereof.

The documentation did make clear that the offences were those punishable under ss 263(I), 267(I) and 52 of the Criminal Code. The text of all of these provisions was set out in full. However, s 17(6)(a)(i)(B) of the Extradition Act also requires a duly authenticated statement in writing setting out the penalty applicable for each offence in question. Section 263(I) states that the offence "shall be punished with imprisonment for a term of up to five years or by a fine". The provision as to imprisonment is supplemented by s 263(III) which states that in particularly serious cases, the term of imprisonment shall be between one year and 10 years. But there appears to be nothing in the material produced to the magistrate which gives any indication of the characteristics of the fine which may be imposed under s 263(I), particularly any indication of the size of the fine.

The same is true of the statement in s 267(I) of the Criminal Code that the punishment is imprisonment "or by a fine".

As I have indicated, s 263(IV) refers to three other provisions of the Criminal Code as applying "mutatis mutandis". The text of these provisions does not appear and so it is impossible to tell whether they bear upon the character and quantum of the fine which may be imposed under s 263(I). Further, subss (III) and (IV) of s 52 refer to the provisions of other sections of the Criminal Code which may bear upon the subject of fines, but again these provisions were not set out in the materials produced to Mr Miszalski.

The reason for these alleged deficiencies is not hard to find. The appellant had already been convicted, and a penalty imposed upon him, namely a term of imprisonment of one year and three months. No fine was imposed.

It is true that the appellant was treated as a person deemed to be accused of the offences in respect of which his extradition was sought, by virtue of s 4(3) of the Extradition Act. That circumstance had the consequence that what was produced to the magistrate had to comply with subpar (i) rather than subpar (ii) of s 17(6)(a) of the Extradition Act; this meant that there had to be provided:

"(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."

It also meant that there had to be produced (and the alleged deficiency in this respect is the subject of the proposed further ground of appeal):

"(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."

*518 In my view, in the circumstances of the present case no great difficulty arises in compliance with the first element of requirement (B) namely a description of each offence for which the surrender of the appellant is requested. Nor, in my view, is there any deficiency in the circumstances of this case in the provision of a description of the penalty applicable to each offence in respect of which surrender of the appellant is requested. This is because where the fugitive whose extradition is requested has been convicted of offences but is deemed to be accused of those offences by reason of s 4(3), the effect of the deeming provision is not such as to require production to the magistrate of a duly authenticated statement in writing setting out the range of penalties which might have been imposed upon the fugitive. Rather, what is called for is a statement of the penalty which is in fact applicable to him by reason of his having been convicted and sentenced.

In applying a "deeming" provision such as s 4(3), it is important to consider the purpose and object of the provision: Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696-697, per Griffith CJ; McRae v Coulton (1986) 7 NSWLR 644 at 657, per Hope JA. The evident purpose of the deeming provision in s 4(3) is directed primarily at requirement (C), rather than requirement (B), that is to say, at the provision of a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender is requested, rather than, as would otherwise be the case, merely the provision of documents providing evidence of the conviction and of the sentence imposed and of the extent to which any sentence imposed has not been carried out.

For these reasons, in my view, the proposed additional ground of appeal would, if permitted, not lead to success for the appellant. Leave should be refused. In doing so, I should not be thought to have accepted one particular argument of the respondents. To this I now turn.

In resisting the application to add the further ground, the respondents asserted that "clearly evidence could have been adduced below even if an adjournment was required". There is no merit in this objection. The expression "below" is ambiguous. The only court "below" was that of Pincus J. Given the nature of the proceedings before Pincus J, it could hardly have been contended before his Honour that he should have admitted further evidence to supplement a deficiency in the record before the magistrate. The proceedings before the magistrate did not involve the exercise of the judicial power of the Commonwealth, a circumstance to which I make further reference later in these reasons. The rules as to the circumstances in which fresh grounds may be taken on appeal were framed in the setting of a court hierarchy commencing with a trial court: see, for example, Water Board v Moustakas (1988) 62 ALJR 209 at 211, 213. Further, the issues before Pincus J and before this Court are concerned not with what might have been produced before the magistrate, but with what was produced before the magistrate in the proceedings under s 17(6) of the Extradition Act which led to the issue of the warrant for the committal of the appellant to prison.

I should also deal with (though no issue concerning this was raised before Pincus J or on the appeal) the interrelation between s 4(3) and requirement (A) in s 17(6)(a)(i), that there be produced to the magistrate in the case of a person who is accused of an extradition crime:

"(A) a duly authenticated foreign warrant in respect of the person issued *519 in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant."

I have already set out the text of the authenticated copy of the warrant of arrest dated 11 February 1987. It is apparent from this that the appellant is described as charged with the offences for which he was convicted and sentenced on 11 February 1987, and the warrant goes on to recite the sentence imposed on the appellant. Does this mean the warrant failed to comply with requirement (A) because s 4(3) produced the result that a warrant would only be satisfactory if, contrary to this fact, it asserted that the fugitive had been accused but not convicted? I have set out my views as to the purpose and object of s 4(3). I do not regard it as requiring such a departure from reality in order to achieve its purpose and object.

I turn now to consider the other grounds of the appeal, being grounds also put forward before Pincus J. These primarily concerned requirement (C) in s 17(6)(a)(i) of the Extradition Act, the terms of which I have set out above.

The duly authenticated statement in writing setting out all the acts or omissions in respect of which surrender is requested, serves several purposes. It assists consideration of whether extradition is sought in respect of extradition crimes which satisfy the "double criminality" requirement as reflected in s 4(1A) and (1B). It also assists in determination of whether the "speciality" provisions of s 13(2) are met. Further, it may assist in deciding whether an offence of a political character is involved, in the sense described in s 13(1).

An inquiry as to whether a proffered statement meets the description of requirement (C) presents a matter for practical judgment and assessment, not for overzealousness in discerning deficiencies: Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 79. It should also be borne in mind that in such a statute as the Extradition Act, the phrase "the acts or omissions" refers to the elements or ingredients of the offence, not the particular evidence adduced to prove those acts or omissions: R v Hull (No 2) [1902] QSR 53 at 57-58, per Griffith CJ; Connolly v Meagher (1906) 3 CLR 682; Riley v Commonwealth (1985) 159 CLR 1 at 18-20, per Deane J; Linhart v Elms (1988) 81 ALR 557 at 582, per Gummow J; Grace Bros Pty Ltd v Magistrates of the Local Courts of New South Wales (1988) 84 ALR 492 at 505.

It was submitted to Pincus J, first that in order to satisfy requirement (C) in s 17(6)(a)(i) of the Extradition Act, what was required was production of a separate document which was self-contained in the sense that it required no reference to other materials produced to satisfy requirements (A) or (B). I agree with Pincus J that a statement may comply with requirement (C) although it makes some reference to or incorporates information in the other materials. His Honour also correctly drew support for this conclusion from the reasoning of two of the judgments in the Full Court in Linhart v Elms.

It was next submitted that in order to comply with requirement (C), the acts or omissions in question must be "set out" and this was not the case if the statement relied upon contained additional material from which it was necessary to identify and extract the acts or omissions relied upon.

I have earlier in these reasons set out the terms of the warrant of arrest. Pincus J held that the warrant itself was sufficient for the purposes of requirement (C), save that there was room for argument as to whether or *520 not it sufficiently clearly alleged the necessary state of mind, namely fraudulent intent. His Honour continued by stating that in his opinion "the references to 'unlawful pecuniary advantage', 'false pretences', 'practicing [sic] deceit' and similar expressions in the warrant makes its purport clear enough". I agree. His Honour went on to say that, in any event, the reasons for judgment of the Local Court made the presence of the necessary mental element amply clear.

In its certified translation, the judgment delivered in the Local Court at Bonn on 11 February 1987 is a document of more than 30 pages. The judgment is divided into seven sections. The critical portions for present purposes appear in s IV. This opens as follows:

"By one and the same act (Section 52 of the Strafgesetzbuch (Criminal Code), the accused has made himself liable to prosecution on grounds of fraud punishable under Section 263(I) of the Strafgesetzbuch (Criminal Code), damaging the BAD GODESBERG KREDITBANK EINGETRAGENE GENOSSENSCHAFT, and on grounds of forgery of a document punishable under Section 267(I) of the Strafgesetzbuch (Criminal Code), such forgery having been committed by him as the actual or indirect perpetrator."

The judgment then turns to deal with the offence under s 263(I) of the Criminal Code. This contains several passages which make it quite plain that the accused carried out the acts constituting the offence deliberately. Likewise, when dealing with the second offence, that under s 267(I) of the Criminal Code, it is stated in terms that the accused acted with intent. Section IV of the judgment then proceeds to deal with the third and fourth charges in respect of which the accused was acquitted.

It is true, as I have indicated, that the judgment of the Local Court is a lengthy document. Nevertheless, it must be borne in mind that the present is a case of a fugitive convicted of offences who by s 4(3) of the Extradition Act is to be treated as accused of the offences. In such a case, the warrant of arrest together with the terms of the very judgment upon which the fugitive has in fact been convicted must be a safer and more effective means of communicating the acts or omissions in respect of which the surrender is requested, rather than any attempted paraphrase of the text of the judgment. I agree with the submission on behalf of the respondents that the fugitive would have greater cause for complaint at a failure to present to the magistrate the very statement of the acts or omissions which founds his conviction and sentence.

However, it would have been a far preferable course if there had been set out, or attention otherwise plainly had been drawn to, the particular passages in the judgment upon which reliance was placed, so that it was clear that not all of the judgment was relied upon. I would seek to discourage in the future the method of presentation of materials adopted in this case.

Next, it was submitted that the second respondent, Mr Miszalski, had erred in declining to allow the appellant to adduce certain evidence. Section 17(6A) of the Extradition Act reads as follows:

"A person referred to in paragraph (6)(b) is not entitled to adduce, and a Magistrate is not entitled to receive, 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."

The evidence sought to be adduced related to the state of mind of the *521 appellant. Pincus J held that such evidence fell within the prohibition in s 17(6A). His Honour said the following, with which I would respectfully agree:

"In substance it would controvert the whole basis of the case sought to be made, namely fraud. Counsel for the applicant argued that the expression 'an allegation that the person has committed an act or omission' in s 17(6A) cannot include an allegation as to state of mind. In my opinion, that is not so; although in some contexts the scope of statements as to acts or omissions constituting an offence might be so confined, here the intention is that the question of guilt or innocence shall not be litigated before the magistrate. In my opinion, a statement such as that, for example, a designated person fraudulently carried out specified actions, is a statement within par (C) and also 'an allegation that the person has committed an act' within s 17(6A)."

I should add that some support for this approach is to be found in the treatment of the phrase "act or omission" by Fox J in Linhart v Elms at 571- 572.

A point was also taken before Pincus J, but not pressed, to the effect that the proceedings before Mr Miszalski constituted an abuse of process because the appellant previously had been arrested in respect of the same matter. In substance, this contention is that which was dealt with in the judgment of Davies J, and it is appropriate to deal with it when dealing with the appeal from that judgment.

In the result, the appeal from the decision of Pincus J should be dismissed.

I turn now to consider the appeal from the judgment of Davies J.

The appeal from the decision of Davies J

Davies J decided that the order made by Mr Armati on 27 April 1988 releasing the appellant was not an order which finally discharged the appellant from extradition with respect to the charges to which those proceedings related. The appellant challenges the proposition put forward by the respondents that the only thing necessarily established by the decision of Mr Armati was that at that time the requirement that the Federal Republic have given an undertaking within s 13(2) of the Extradition Act had not been established to the satisfaction of Mr Armati: s 17(6)(b). In my view, the respondents' proposition is correct and because Mr Armati gave no final decision in the sense contended for by the appellant no assistance for him is to be derived from the doctrines of res judicata or issue estoppel.

I turn first to consider the position of Mr Armati and Mr Miszalski in exercising the functions bestowed upon them pursuant to the Extradition Act.

Section 15 of the Extradition Act provides that where a foreign State makes to the Attorney-General a requisition for the surrender of a fugitive who is in Australia, the Attorney-General may in his discretion authorise the issue by any magistrate of a warrant for the apprehension of the fugitive. The term "Magistrate" is defined in s 4(1) as including a person who holds office as a magistrate or as chief magistrate, stipendiary magistrate, police magistrate, resident magistrate or special magistrate of a State, "and in respect of whom an arrangement under s 24(1) is applicable". Section 24 provides that the Governor-General may arrange with the Governor of a State for the performance by all or any of the persons who from time to time *522 hold the State offices I have described, of the functions of a magistrate under the Extradition Act.

It is plain from these provisions that the New South Wales magistrates who participated in the proceedings involved in this litigation did so as persons to whom these statutory provisions applied; these statutory provisions do not operate to invest State courts with federal jurisdiction with respect to matters arising under federal laws, within the meaning of s 77(iii) of the Constitution (Cth): Aston v Irvine (1955) 92 CLR 353 at 365. The magistrates were exercising executive or administrative functions as personae designatae, not the judicial power of the Commonwealth in respect of matters arising under federal law: Hilton v Wells (1985) 157 CLR 57; Jones v Commonwealth (1987) 61 ALJR 348.

That does not mean that the magistrates necessarily were unable to decide conclusively issues of fact in disputes coming before them under s 17 of the Extradition Act. Legislation may validly commit to a decision-maker exercising administrative powers the authority to decide disputed issues of fact, and to do so finally in the sense that the decision is not subject to collateral attack. Such decision-making authority is not exclusively judicial in character. What cannot be done is to insulate from judicial review under s 75 of the Constitution findings by administrative decision-makers as to what are, in respect of the particular laws in question, constitutional or jurisdictional facts. Such findings may be tested, for example, in mandamus, prohibition or injunction proceedings under s 75(v) of the Constitution. Authority for these propositions may be found in Rola Co (Aust) Pty Ltd v Commonwealth (1944) 69 CLR 185 at 200-201, 211, 213; Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 386, 398-399, 411-413; and R v Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) (1979) 143 CLR 190 at 200-204, 225-228, 237-238; see also L Zines, The High Court and the Constitution (2nd ed, 1981), p 164- 180.

The observations of Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 16-17 and of Gibbs J in Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453, that the doctrine of res judicata extends to decisions of tribunals with statutory jurisdiction to decide finally a question arising between parties, are to be understood against this Australian federal constitutional background.

What then was the nature of the authority reposed in the magistrates by s 17 of the Extradition Act?

The provision central to what one might call the extradition process is s 12 of the Extradition Act. This provides:

"Where this Act applies in relation to a foreign state, every fugitive from that state is liable, subject to this Act and to any limitations, conditions, exceptions or qualifications to which the application of this Act in relation to that state is subject, to be apprehended and surrendered to that state as provided by this Act and is so liable whether the offence to which the requisition for the surrender of the fugitive relates is alleged to have been committed, or was committed, before or after the commencement of this Act or before or after the time when this Act commenced to apply in relation to that state."

Subject to qualifications not here material, the surrender of the fugitive to *523 a foreign State may be effected by the Attorney-General's warrant ordering that a person specified in the warrant take the fugitive into custody and convey the fugitive to a place in the foreign State or within the jurisdiction of, or of a part of, that foreign State and there surrender the fugitive to a person appointed by the foreign State to receive the fugitive: s 18A(1).

The issue of the warrant by the Attorney-General is preconditioned upon a train of events spelled out in the Extradition Act. They commence with the receipt from the foreign State of a requisition for the surrender of the fugitive; the legislation does not specify that any particular form be taken by the requisition, nor, indeed, that it be in writing. Provision then is made for the apprehension of the fugitive and the committal (by a magistrate following the procedures in s 17(6)) of the fugitive to prison to await the warrant of the Attorney-General for his surrender. The Attorney-General may order the surrender if satisfied that the fugitive is liable to be surrendered to the State which made the requisition for his surrender. But the Attorney-General may not proceed if he is of the opinion that the offence to which the requisition for the surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed, or was committed, an offence of a political character, or if he is of the opinion that the requisition for the surrender has in fact been made with a view to try or punish the fugitive for an offence of a political character: s 18A(1)(d). (As I have mentioned earlier in these reasons, the discretion of the Attorney-General may extend beyond consideration of these matters.)

The functions entrusted to designated magistrates under s 17(6) of the Extradition Act differ in character from committal proceedings which traditionally constitute the first step in the curial process possibly culminating in the presentation of an indictment and trial by jury. Such committal proceedings have been held to have a close if not essential connection with the exercise of judicial power; this has the result that s 68(2) of the Judiciary Act (which deals with, inter alia, committal by State courts for trial on indictment for offences against the laws of the Commonwealth) has been held to be a law enacted pursuant to s 77(iii) of the Constitution and to invest the State courts with federal jurisdiction with respect to matters arising under federal laws: R v Murphy (1985) 158 CLR 596.

The proceedings before a magistrate exercising functions described in s 17(6) of the Extradition Act are to determine whether upon the materials then before him the fugitive should be released or committed to prison to await the Attorney-General's warrant for his surrender. The magistrate has to be satisfied, after taking into account any evidence properly adduced by the person in question, that that person is liable to be surrendered to the foreign State which made the requisition for the surrender. In the present case, Mr Armati ordered the release of the appellant because he was not liable to be surrendered unless, as was not shown to be the case, the Federal Republic had given an undertaking under the speciality provision of s 13(2).

However, in terms of s 12, the appellant remained a fugitive liable to be apprehended and surrendered subject to compliance with the provisions of the Extradition Act and any regulations thereunder which were applicable to him. The effect of what Mr Armati decided was that at that time there had not been such compliance; but to decide that did not foreclose the possibility of subsequent compliance. The point was put as follows by Brandeis J speaking for the United States Supreme Court (and in circumstances where *524 the release of the fugitive had been effected by an order for habeas corpus) in Collins v Loisel 262 US 426 at 430 (1923):

"[A] judgment in habeas corpus proceedings discharging a prisoner held for preliminary examination may operate as res judicata. But the judgment is res judicata only that he was at the time illegally in custody, and of the issue of law and fact necessarily involved in that result. [Emphasis supplied.]"

The extradition laws of various foreign States have been construed in similar fashion: see, for example, Re Gerhard (No 3) (1901) 27 VLR 655 (a decision upon the Extradition Act 1870); Collins v Loisel; Atkinson v United States Government [1971] AC 197 at 235; Re Wisconsin and Armstrong (1972) 8 CCC (2d) 452 at 455 and Re Rees [1986] AC 937 at 961-962. In Australia, Great Britain, the United States and Canada, learned writers on extradition in international law and practice have expressed similar opinions: see, for example, I A Shearer, Extradition in International Law (1971), p 195; Bedi, Extradition in International Law and Practice, p 141-142; V E H Booth, British Extradition Law and Procedure (1980), Vol 1, p 63; M L Friedland, Double Jeopardy (1969), pp 270-272; La Forest, Extradition to and from Canada (2nd ed), p 118. I mention these decisions and writings because statutes such as the Extradition Act should be construed, so far as the language permits, so as not to clash with international comity and practice: Zachariassen v Commonwealth (1917) 24 CLR 166 at 181.

The steps which led to Mr Armati's decision to release the appellant had commenced with, and were consequent upon, the receipt from the Federal Republic of the first requisition, that dated 24 November 1987. The appellant was a fugitive from the Federal Republic and by reason of s 12 liable, within the meaning of the Extradition Act, to be apprehended and surrendered to the Federal Republic because he was a "fugitive" as defined in s 4(1). The term "fugitive" is therein stated to mean, inter alia, a person accused of an extradition crime that is alleged to have been committed. An offence is an "extradition crime" for the purposes of the Extradition Act if it is an offence (to apply the statute to the facts of the present case) against the law of the Federal Republic "for which a requisition for the surrender of [the appellant] has been made to the Attorney-General" and if the offence satisfies the other requirements spelled out in s 4(1A) and (1B) of the Extradition Act.

In the case of the requisition dated 24 November 1987, there was not given by the Federal Republic an undertaking as required by s 13(2) of the Extradition Act. It followed from the opening words of that subsection, that the appellant was "not liable to be surrendered" to the Federal Republic. Section 12 which in terms rendered every fugitive liable to be apprehended and surrendered was subject to the provisions of the Extradition Act, including s 13(2). The second requisition dated 29 April 1988 included the undertaking specified in s 13(2). Therefore, subject to the other requirements of the Extradition Act being satisfied, the appellant was a fugitive liable, pursuant to s 12, to be apprehended and surrendered to the Federal Republic. The appellant was not permanently absolved from that liability to apprehension and surrender by the circumstance that it was not until 29 April 1988 that the appropriate undertaking was received. In the terms of s 13(2), the appellant was not liable to be surrendered to the Federal Republic unless the appropriate undertaking had been given by the *525 Federal Republic. That undertaking had not been given at the time of the proceedings before Mr Armati. It had been given at the time of the proceedings before Mr Miszalski. There is, as Beaumont J put it in Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 162, nothing to suggest that only one extradition was possible.

Accordingly, in my view, Davies J correctly concluded that the principles of res judicata or of final determination did not operate upon the decision of Mr Armati on 27 April 1988 to release the appellant, in such fashion as to preclude the taking of the subsequent steps which led on 31 May 1988 to the issue by Mr Miszalski of the warrant under s 17(6) of the Extradition Act for the committal of the appellant to prison to await the warrant of the Attorney-General for his surrender.

What I have said as to lack of finality when dealing with the alleged res judicata also indicates why reliance upon the principles of issue estoppel was misplaced: see Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 232, per Deane J; cf Thrasyvoulou v Secretary of State for the Environment [1988] QB 809 at 819, 823.

In Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 17, Jordan CJ said of estoppel arising from the decisions of tribunals:

"It extends to any matters in fact raised and judicially decided for the purpose of arriving at the decision ... and also to any matters necessary to be determined in order to found the decision, provided always that the tribunal has jurisdiction to determine these matters for all purposes between the parties, that is, jurisdiction to determine them directly and immediately as well as merely incidentally."

English authority as to issue estoppel arising from proceedings of administrative tribunals is to like effect: Thrasyvoulou v Secretary of State for the Environment at 821-822.

However, in this Court, as is indicated by Commonwealth v Sciacca (1988) 17 FCR 476 at 480 and Bogaards v McMahon (1988) 80 ALR 342, there is serious doubt as to the applicability of principles of issue estoppel to proceedings before bodies or decision-makers which are not courts of record. The rules of evidence may not apply to their deliberations, or may apply in a much qualified form, the issues which arise in proceedings may not be defined or isolated by any pleading system, and there may be no obligation to give reasons or only a limited obligation to do so.

Whatever view is taken of the general applicability of the principles of issue estoppel in administrative law, there will always be the threshold question as to the width and effect of the decision-making power entrusted by the legislature to the body in question. This is apparent from the remarks of Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson already quoted, and also from a later passage (at 19):

"Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred."*526

There are additional concerns where (as was not the position in the above case) federal law is the source of the rights or liabilities as to which an issue estoppel is said to arise from something other than the exercise of the judicial power of the Commonwealth. First, as I have earlier mentioned, issues going to constitutional facts or jurisdictional facts, stand in a special position as regards judicial review; secondly, where the subject-matter of the alleged issue estoppel is found in the decision of a body exercising its authority not under federal law but under State law, the question will arise as to the efficacy of proceedings under State law to pre-empt and prejudge issues involved in the subsequent determination of rights and liabilities arising under federal law: cf D M W v C G W (1984) 151 CLR 491; Simplicity Funerals Ltd v Simplicity Funerals Pty Ltd (1987) 16 FCR 129; R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26.

I agree that Davies J was correct in treating principles of issue estoppel as inapplicable to the proceedings before him.

The objections I have indicated as to the applicability of the doctrines of res judicata and issue estoppel apply a fortiori to any attempt (made but faintly on the present appeal) to rely upon the species of equitable estoppel deriving from Henderson v Henderson (1843) 3 Hare 100 at 114-115; 67 ER 313 at 319. This doctrine is that it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings. The High Court discussed the operation of doctrine in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Chamberlain v Deputy Commissioner of Taxation (Cth) (1988) 164 CLR 502. As I have said, the proceedings before the magistrates which were drawn into question before Davies J and Pincus J and on these appeals, did not involve the exercise of judicial power by the magistrates, nor were they ancillary or preparatory to the exercise of judicial power as would have been the case had they been committal proceedings: R v Ngalkin (1984) 71 FLR 264. The magistrates were acting not as such but as personae designatae, pursuant to s 24 of the Extradition Act, who were executing a law of the Commonwealth not exercising the judicial power of the Commonwealth. In that setting, it is an inapt use of language to characterise what took place as an abuse of process.

I should refer to Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589. Section 55 of the Bankruptcy Act 1966 (Cth) provided that by force of the section, a debtor became bankrupt upon acceptance by the Registrar of his own petition. No judicial order was made nor was the Registrar given any relevant discretion. However, this Court had power to annul such a bankruptcy if satisfied that the petition ought not to have been presented: s 154(1). The High Court (at 598-599) used the expression "abuse of process" to describe the use by a debtor of the procedure provided by s 55 for the purpose of making it impossible for a creditor to obtain a sequestration order on a pending petition and for the purpose of shortening the period of relation back; where there had been such a "abuse of process", the debtor's petition ought not to have been presented, s 154(1) applied, and the court might annul the bankruptcy. The term "abuse of process" was used in this setting, not to describe the exercise of discretion reposed in any administrator by legislation, but to provide guidance as to the quality of conduct by a debtor which would entitle the court to say, within the meaning of s 154(1), that the petition ought not to have been presented. Their *527 Honours were not directing their minds to the use of the term "abuse of process" in administrative law.

It is true that in Re Rees [1986] AC 937 at 962, Lord Mackay of Clashfern, in dealing with the Extradition Act 1870 (Imp), said that initiation by the executive of new proceedings after release of a fugitive "may, in some circumstances, amount to an abuse of process": see also Dallal v Bank Mellat [1986] QB 441 at 462-463. But the term "abuse of process" may be used more loosely in Britain, given the absence there (i) of the sharp distinctions produced in the Australian federal system between judicial and non-judicial power and between those who may exercise those powers, and (ii) of the precision of thought and expression fostered by those distinctions. Caution thus is required in relying here upon what is said in the courts of the other country.

Again, in Herron v McGregor (1986) 6 NSWLR 246 at 250-254 and X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 597, the New South Wales Court of Appeal took the view that the supervisory jurisdiction of the Supreme Court to stay criminal as well as civil proceedings in inferior courts for abuse of process extended to supervision of disciplinary tribunals, in particular those established under the Medical Practitioners Act 1938 (NSW). Some uncertainty has been expressed as to the nature of the supervisory jurisdiction to stay criminal proceedings in inferior courts. It may be based in correction of jurisdictional error and thus be exercised "by analogy with prerogative relief": see Jago v District Court of NSW (1988) 12 NSWLR 558 at 563, 571, 583. However that may be, what has been said as to the legal system of New South Wales does not, in my view, identify or describe the basis upon which courts exercising federal jurisdiction entertain "matters", in the constitutional sense, in which an applicant seeks review of the execution of a law of the Commonwealth by those exercising the executive power of the Commonwealth provided for in s 61 of the Constitution. The doctrine of separation of powers does not form part of the constitutional structure of the States: Clyne v East (No 1) (1967) 68 SR (NSW) 385; cf Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10-11. Thus, developments by the State courts in the content of their "inherent" jurisdiction are not necessarily a sufficient guide when dealing with federal administrative law.

But that is not to deny that in a given case the institution and continuation of repetitious administrative procedures purportedly pursuant to discretion reposed in the administrator by a law of the Commonwealth may attract judicial review. In Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 161-162, Beaumont J described abuse by the executive of extradition procedures by multiplicity of needless actions as an example of "improper purpose": see also, de Smith, Judicial Review of Administrative Action (4th ed, 1980), pp 322-336, discussed by Burchett J in his judgment. Sections 5(1)(e) and 5(2) of the ADJR Act, which substantially reproduce the general law, provide between them a description of the various deficiencies in administration which in law amount to an abuse or improper exercise of a power conferred by statute upon a decision-maker. Where the discretion, the exercise of which is called into question, affects the personal freedom of the individual, well-established principles of statutory interpretation exemplified in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520, 523, 532-533, may qualify the nature of the power and thus assist in indicating what in a given *528 case is an abuse or improper exercise of power. It is true that, as indicated at the commencement of these reasons, when referring to the judgment of Burchett J, the Extradition Act itself offers limited areas for review of decisions made under it. However, the jurisdiction of the High Court under s 75(v) of the Constitution is entrenched. The means of review of administrative action for which it provides comes to this Court under s 39B of the Judiciary Act.

No such issue concerning the exercise of any relevant discretion under the Extradition Act arose on the application to Davies J. If such a point had been taken, it would on the facts of this case no doubt have failed.

It remains only to add that what has been said earlier as to res judicata and cognate estoppels does not affect the subject of estoppel by representations made by those exercising statutory powers and discretions. That topic was recently discussed in this Court in Formosa v Secretary to the Department of Social Security (1988) 9 AAR 260 at 268-269.

Conclusion

In my view, both appeals should be dismissed with costs.

The Court orders as follows:

Matter G982 of 1988

That the appeal be dismissed with costs.

Matter G1148 of 1988

That the appeal be dismissed with costs.

Solicitor for the appellant: Sly & Weigall.

Solicitor for the respondent: Director of Public Prosecutions.

R R S Tracey

END OF DOCUMENT

History

(Showing 4 of 5 documents)

Direct History

Wiest v Director of Public Prosecutions, 1988 WL 860993, 86 ALR 464, 38 A Crim R 358, 17 ALD 149, 23 FCR 472 (FCA Dec 21, 1988)

Negative Indirect History (Australia)

Disapproved by

Hellenic Republic v Tzatzimakis, 2003 WL 194924, [2004] ALMD 3330, 127 FCR 130, [2003] FCAFC 4 (FCA Jan 31, 2003) (NO. V 209 OF 2002)

Distinguished by

Forrest v Kelly and Another, 1992 WL 1288996, 105 ALR 573, 34 FCR 74 (FCA Feb 06, 1992)

Hellenic Republic v Tzatzimakis, 2002 WL 461785, [2002] FCA 340 (FCA Mar 27, 2002) (NO. 731 OF 2000)