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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Extradition - Review of decision of magistrate to commit fugitive to prison to await warrant for surrender to Republic of Italy - Alleged offences committed in 1979 and 1980 in course of campaign of opposition to school selection system - Powers of court reviewing magistrate's decision - Meaning of requirement in extradition Treaty that offences be "punishable" by not less than two years imprisonment - Admissibility in extradition proceedings of statements made by co-accused persons - Whether evidence in relation to charge of malicious damage showed necessary criminal intent - Admissibility, on tender by fugitive, of subsequent statements made by prosecution witnesses retracting or qualifying evidence relied on by prosecution - Admissibility of statement obtained as result of improper or unlawful questioning - Whether prima facie case against fugitive in respect of each charge - Content of "evidence sufficient to justify his trial" - Whether this formula involves consideration of reasonableness of putting fugitive on trial - Relevance of fact that evidence against fugitive is from accomplices in determining whether a jury "would not be likely to convict" the fugitive at a trial in New South Wales - Whether offences charged against fugitive are "offences of a political character" - Entitlement of magistrate to consider this question.Extradition (Foreign States) Act 1966 ss.13, 15, 16, 17, 18, 18A, 26
Extradition (Republic of Italy) Regulations Treaty of Extradition between Australia and the Republic of Italy Arts.11, X(2), XI(1) Administrative Decisions (Judicial Review) Act 1977 ss.5, 11, 15, 16
Justices Act 1902 (NSW) s.41
Bedgood v Keeper of Her Majesty's Penitentiary at Malabar (1975) 2 NSWLR 144, Carlin v Chidkhunthod (13 November 1985, not reported), R v Baskerville (1916) 2 KB 658, In re Castioni (1891) 1 QB 149 applied.
Riley and Butler v Commonwealth of Australia (1983) 50 ALR 593 (Fox J.), (1984) 57 ALR 249 (Full Federal Court), 19 December 1985 (High Court, not yet reported), Alpaslan v Minister for Immigration and Ethnic Affairs (unreported Gray J., 16 July 1985), Puharka v Webb (1983) 2 NSWLR 31, R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, R v Freeman (25 October 1985, New South Wales Court of Criminal Appeal, not reported), R v Governor of Brixton Prison; ex parte Schtraks (1964) AC 556, Beese v Governor of Ashford Remand Centre (1973) 1 WLR 1426, R v Governor of Brixton Prison; ex parte Mourat Mehmet (1962) 2 WLR 686, R v Governor of Brixton Prison; ex parte Sadri (1962) 1 WLR 1304, Wentworth v Rogers (1984) 2 NSWLR 422, Re Meunier (1894) 2 QB 415, R v Governor of Brixton Prison; ex parte Kolczynski (1955) 1 QB 540, R v Governor of Pentonville Prison; ex parte Cheng (1973) AC 931, R v Wilson; ex parte Witness T [1976] HCA 33; (1976) 135 CLR 179, R v Governor of Pentonville Prison; ex parte Budlong (1980) 1 WLR 1110 referred to. R v Phillips and Pringle (1973) 1 NSWLR 175, Malaysia-Singapore Airlines Limited v Parker (1972) 3 SASR 300 distinguished.
Extradition - Judicial review of decision of magistrate that applicant liable to be extradited and that he be imprisoned pending warrant for surrender - Alleged offences in course of campaign of protest against school selection methods in Italy - Meaning of requirement of extradition treaty that offences be "punishable" by not less than two years imprisonment - Admissibility of unsworn statements by co-accused - Admissibility of statements tendered by the accused at hearing by magistrate - Sufficiency of evidence - Admissibility of statements obtained by improper or unlawful questioning - Whether offences were "of a political character" and entitlement of magistrate to consider the question.
Words, Phrases and Maxims - "Punishable" - "Offence of a political character" - Extradition (Foreign States) Act 1966 (Cth), ss 13, 15, 17, 18, 18A, 26 - Extradition (Republic of Italy) Regulations - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11, 15, 16 - Justices Act 1902 (NSW), s 41 - Treaty of Extradition between Australia and The Republic of Italy, arts 11, X(2), XI(1). The applicant had been charged in Italy with various offences relating to complicity in a campaign of subversion and deliberate damage to government educational establishments. It was alleged that this campaign was carried out in protest at the methods used for the selection of students. The relevant Italian legislation provided for a maximum term of imprisonment upon conviction for a period greater than two years but in certain circumstances a lesser sentence could be imposed.
At the hearing before the magistrate, unsworn statements of persons co-accused with the applicant were tendered in support of the case for extradition. The magistrate ordered that the applicant was liable to extradition in respect of certain of the charges and committed the applicant to prison pending the issue of the warrant for surrender. The applicant sought review of these decisions alleging, inter alia, that the offences were of a political character and were not offences punishable by a period of imprisonment of not less than two years and that under the terms of the relevant Extradition Treaty with Italy he was not, therefore, liable to be extradited upon those charges.
Held: (1) When considering whether the offence charged is one "punishable" by a term of imprisonment of not less than two years, it would be erroneous to have regard to the fact that there may exist in the sentencing authority a discretion to impose a sentence of imprisonment of less than two years. If the offence is one which, in law, is able to be punished by imprisonment of two years or more, then it is an offence "punishable" by a tem of imprisonment of not less than two years, notwithstanding that in certain circumstances it may also be punishable by imprisonment for a lesser term.
(2) The unsworn (although authenticated) statements of the co-accused were properly admitted. It is erroneous to equate those statements to a record of interview of one accused tendered at a trial in New South Wales against another accused (which would, in those circumstances be inadmissible). Both the Extradition (Foreign States) Act 1966 (Cth) and the relevant Extradition Treaty envisaged that evidence may be provided by authenticated statements made out of court, obviously in order to avoid the impracticality of requiring foreign witnesses to give evidence orally in the requested State.
(3) A magistrate, in hearing extradition proceedings, is not required to conduct a preliminary trial of the fugitive and should simply evaluate the evidence presented in order to decide whether the whole of the evidence is sufficient to justify trial in the requested State. In New South Wales, pursuant to the provision of s 41 of the Justices Act 1902, the magistrate is therefore required to find, not only that a prima facie case exists against the fugitive but also that there is evidence capable of satisfying a reasonable jury properly instructed of the guilt of the fugitive, before he makes an order that the fugitive is liable to extradition.
(4) The question of whether the offences charged were of a political character fell within the jurisdiction of the magistrate to consider. An offence committed in the course of an organised prolonged campaign involving a number of people and directed to changing government policy would be such an offence, providing the offence was directed solely for that purpose, did not involve satisfaction of private ends, and was committed in the direct prosecution of that campaign. In the circumstances, the offences with which the applicant was charged fulfilled these requirements and the applicant was not liable to extradition.
(5) Although s 17(6A) of the Extradition (Foreign States) Act 1966 prevented the reception of evidence from the fugitive to controvert an allegation that the fugitive has committed the act in respect of which he has been charged, there was no reason why the applicant should not have been entitled to tender further material to assist the magistrate in understanding the proper extent of an allegation against him. Thus a further statement from a prosecution witness which amended certain matters in his previous statement which had been tendered against the applicant, was admissible and could be tendered by the applicant.
Bedgood v. Keeper of Her Majesty's Penitentiary at Malabar (1975) 2 NSWLR 144; Carlin v. Chidkunthod (unreported, 13 November 1985); R. v. Baskerville (1916) 2 KB 658; Re Castioni (1891) 1 QB 149, applied.
Riley v. Commonwealth of Australia (1983) 50 ALR 593; (1984) 57 ALR 249; (1985) 60 ALJR 106; Alpaslan v. Minister for Immigration and Ethnic Affairs (unreported, 16 July 1985); R. v. Ireland [1970] HCA 21; (1970) 126 CLR 321; Puharka v. Webb (1983) 2 NSWLR 31; Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54; Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1; Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1; R. v. Freeman 25 October 1985, (New South Wales Court of Appeal); R. v. Governor of Brixton Prison; Ex parte Schtraks (1964) AC 556; Beese v. Governor of Ashford Remand Centre (1973) 1 WLR 1426; R. v. Governor of Brixton Prison; Ex parte Mourat Mehmet (1962) 2 QB 1; R. v. Governor of Brixton Prison; Ex parte Sadri (1962) 1 WLR 1304; Wentworth v. Rogers (1984) 2 NSWLR 422; Re Meunier (1894) 2 QB 415; R. v. Governor of Brixton Prison; Ex parte Kolczynski (1955) 1 QB 540; R. v. Governor of Pentonville Prison; Ex parte Cheng (1973) AC 931; R. v. Wilson; Ex parte Witness T [1976] HCA 33; (1976) 135 CLR 179; R. v. Governor of Pentonville Prison; Ex parte Budlong (1980) 1 WLR 1110, referred to.
R. v. Phillips (1973) 1 NSWLR 275; Malaysia-Singapore Airlines Ltd v. Parker (1972) 3 SASR 300, distinguished.
HEARING
Sydney, 1986, January 24, 31; February 6. 6:2:1986Application for review of decisions of a magistrate that the applicant was liable to be extradited to Italy, and to commit the applicant to prison pending issue of the warrant for surrender.
S M Littlemore, for the applicant.
D F Rolfe QC and J V Agius, for the Attorney-General for the Commonwealth.Prosecutions.
Cur adv vultSolicitors for the applicant: Malcolm Johns & Co.
Solicitor for the Attorney-General of the Commonwealth: Director of Public
Solicitor for the respondents: H K Roberts, Crown Solicitor for New South
Wales.
SMW
ORDER
In respect of each of the five counts in relation to which the applicant was committed to prison to await the warrant of the Attorney-General for the Commonwealth of Australia for the surrender of the applicant to the Republic of Italy it be declared that:(a) the evidence adduced to the committing
magistrate, the respondent Richard Peter(b) the said offence was an offence which by
Miszalski, was not evidence sufficient to
justify his trial if the various acts or
omissions constituting the alleged
offences had taken place in New South
Wales; and
reason of the circumstances in which itand in lieu thereof it be ordered that the applicant be released.
was committed was an offence of a
political character in respect of which
the applicant was not liable to be
surrendered.The said decision of the respondent, Richard Peter Miszalski, be set aside
The respondent, the Attorney-General for the Commonwealth of Australia, pay
to the applicant his costs of the Application.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.Orders accordingly
DECISION
There are before the Court two Applications arising out of proceedings against the applicant, Libero William Prevato, under the Extradition (Foreign States) Act 1966. On 23 December 1985 Mr R P Miszalski SM, upon the application of the Attorney-General for the Commonwealth of Australia, made an order under s.17 of that Act committing the applicant to prison to await the warrant of the Attorney-General for his surrender as a fugitive to the Republic of Italy.2. The two Applications were heard together as a matter of urgency,
concluding on Friday 31 January 1986. The matters for determination
include
some questions of general importance in relation to which I considered it
desirable to take time in the expression of my
reasons. However, the
applicant was in custody. As I had reached the firm conclusion that he was
entitled to an order for release
from custody I made, on 31 January 1986, the
orders which appeared to me to be appropriate, reserving to a later date the
publication
of my reasons therefor. Those reasons now follow.
The proceedings
3. The first Application (No.G.6 of 1986) is an application for review made both pursuant to s.18 of the Extradition (Foreign States) Act and to the Administrative Decisions (Judicial Review) Act 1977. This Application challenges the validity of the magistrate's decision that the applicant is liable to be extradited. The second Application (No.G.16 of 1986), which is founded only upon the Administrative Decisions (Judicial Review) Act, seeks review of the decision to commit to prison, as distinct from ordering that the applicant be held elsewhere in custody, pending the issue of the warrant for surrender; in connection with that matter it is said that the magistrate denied to the applicant natural justice in that he afforded to him no opportunity to submit that he should be held in custody otherwise than in prison. The respondents to the proceedings are the Governor of the Metropolitan Remand Centre, in relation only to the first Application, Mr Miszalski and the Attorney-General. Only the Attorney-General, of the respondents, has taken an active part in the hearing, he putting submissions in support of the magistrate's order.
4. The applicant is an Australian citizen, having been born in this country on 7 May 1962. His parents, apparently, had come to Australia from Italy. They returned to Italy when the applicant was aged about four years, taking him with them. He grew up in Italy. During the last stage of his education, at least, he lived in Padua; and it is in respect of his attendance at an educational institution in that city that his present difficulties arise. It appears that, in the period 1979-1980, he became associated with a number of other young people -- mainly students -- who were opposed to what has been described in the evidence as "the school selection system". Neither the precise nature of this system nor the reasons for opposition to it appear from the evidence but neither of those matters is material. What does matter is that the applicant is said to have committed various criminal offences in the course of the campaign of opposition. It is in relation to these offences that his extradition is now sought.
5. During March and April 1982 some of the people involved in the campaign were interrogated. On 17 March 1982 a warrant was issued by the Deputy State Attorney at Padua for the apprehension of eleven named persons, including the applicant. The warrant charged 20 separate offences, not all involving all of the accused, but, as I understand the warrant, Mr Prevato was alleged by the warrant to have been associated with all but one offence. The numbers of the counts are discontinuous and reach to no.60. The warrant attributed to the applicant an address in Padua, but it appears that he was not then arrested. The evidence does not disclose his movements between that time and 29 September 1985, upon which date he was arrested in Sydney pursuant to a warrant issued by a local magistrate under the authority of s.16 of the Extradition (Foreign States) Act. The applicant was taken into custody at the Metropolitan Remand Centre, Long Bay Prison, Malabar, where he remained until my order for release on 31 January 1986.
6. Following the arrest of the applicant a requisition was made by the
Italian Government to the Attorney-General for the Commonwealth
of Australia
for the surrender of Mr Prevato. On 4 November 1985 the Attorney-General
issued a notice under s.15(1)(b) of the Act,
addressed to any magistrate
before whom Mr Prevato might be brought, indicating that a requisition had
been made to him as Attorney-General
by the Republic of Italy for the
surrender of Mr Prevato, "a fugitive who is accused of the offences of..... ".
There followed a
list of 14 offences identified by title and by reference to
the article in the Italian Penal Code creating the relevant offence.
Procedure for committal and review
7. Section 17 of the Extradition (Foreign States) Act deals with the proceedings before a magistrate in relation to the extradition of a fugitive. The section was heavily amended by the Extradition (Foreign States) Amendment Act 1985 -- which Act took effect from 1 July 1985 -- and it was further amended by the Statute Law (Miscellaneous Provisions) (No.2) Act 1985. It appears that no print of the latter Act is yet available but counsel for the Attorney-General have kindly made available a copy of the Bill. They indicate their instructions that the final form of the Act followed that of the Bill and that these latter amendments came into force shortly before the day, 23 December 1985, upon which the magistrate committed the applicant to prison.
8. The relevant provisions of s.17, as that section now stands, are:
"17Section 17A of the Act provides for review, in this Court or in the Supreme Court of the State or Territory in which the person was apprehended, of any order by a magistrate for the release of that person. The new section which was substituted as s.18 late last year provides for review of the validity of decisions of magistrates, inter alia, to commit a person to prison. The section relevantly provides:
...
(6) If the person was apprehended under
a warrant issued in pursuance of an authority
by the Attorney-General in a notice under
paragraph 15(1)(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 all the acts
or omissions in respect of
which the surrender of the
person is requested; or
(ii) ...
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
recognizances as the Magistrate
thinks appropriate, grant bail to
the person pending the signing of a
warrant by the Attorney-General for
the surrender of the person,
but otherwise the Magistrate shall order that
the person be released.
(6A) 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.
(7) Where the Magistrate is of the
opinion that it would be dangerous to the life
or prejudicial to the health of the person to
commit him to prison, he may, in lieu of
committing him to prison, by warrant, order
that he be held in custody at the place where
he is for the time being, or at any other
place to which the Magistrate considers that
he can be removed without danger to his life
or prejudice to his health, until such time as
he can without such danger or prejudice be
committed to prison or he is surrendered and,
in such a case, the warrant shall be in
accordance with the form prescribed for the
purposes of sub-section (6) with such
variations as are necessary to meet the
circumstances of the case.
(8) Where, in pursuance of this section,
a Magistrate commits a person to prison or
otherwise orders that he be held in custody,
or grants bail to a person, he shall forthwith
send to the Attorney-General a certificate to
that effect and such report, if any, relating
to the proceedings as he thinks fit ..."
"18(1) Where a person (in this section9. I make two comments about this section. First, there is no provision in the section for any extension of the period of 15 days allowed for the making of an application for review. The reason, no doubt, was that it was thought desirable to enable an early decision by the Attorney-General upon the question of surrender and, if the decision was to surrender, prompt surrender. Speed is desirable; in the interests both of the fugitive, who is being held in some form of custody pending a decision and who yet may not be surrendered or may be acquitted of the relevant charge or charges, and of the administration of justice in the requesting State. But the absence of any provision for extension of the relatively short time allowed for the making of an application for review throws a particular responsibility upon those acting on behalf of the fugitive to ensure that any application for review is made in time. No doubt this is one reason for the requirement of s.18(7) that the magistrate inform the fugitive of his position. In this connection it does not appear from the transcript of the proceedings in this case that any notification under s.18(7) was given by Mr Miszalski. Notwithstanding that apparent omission, those representing the applicant realised the position and -- despite the time of year -- filed Application G.6 of 1986 within the required 15 days.
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.
(8) ... "
10. The second comment is that s.18 contains no provision for the reviewing Court to suspend the operation of the magistrate's order, or to admit the fugitive to bail, pending the determination of the review. In my opinion this is unfortunate. In many cases, no doubt, it will be desirable to keep the fugitive in custody pending review; but this may not always be so. The present case is one where, upon the information presently available to me, it may have been appropriate to release the fugitive from custody pending the determination of his application for review. As will appear, the matters in respect of which the fugitive was committed to prison to await extradition are relatively minor. They took place a long time ago. The uncle of the fugitive, an Australian citizen who owns his own home in Sydney, has sworn an affidavit in which he offers to provide accommodation for the applicant. I was informed by counsel that the uncle was willing to enter into a surety for the appearance of the applicant as required. In the event the matter of release of the applicant pending the determination of the case was not pursued by his counsel. Counsel for the Attorney-General indicated that they would wish an opportunity to present evidence on that question and counsel for the applicant preferred to use the time which I was able to make available to argue the merits of the substantive Application. In the absence of any evidence which might have been adduced on behalf of the Attorney-General I speak tentatively, but it seems to me likely that a person in the position of Mr Prevato awaiting a trial in respect of like offences alleged to have been committed in Australia would be granted bail. A magistrate may grant bail to an apprehended fugitive pending consideration by the magistrate of the case in support of extradition: see s.17(2). It is difficult to see any valid objection to investing the superior courts with a like discretion in respect of the period during which an application for review is before them.
11. The observations I have just made are directed primarily to the operation
of s.18 in the Supreme Courts of the various States
and Territories. In this
Court there is an alternative procedure available: an application for review
pursuant to the Administrative Decisions (Judicial Review) Act. The making of
an order under s.17(6) of the Extradition (Foreign States) Act 1966 is a
decision to which that Act applies. The
recent case of Riley and Butler v
Commonwealth of Australia -- see (1983) 50 ALR 593, (Fox J.), (1984) 57 ALR
249 (Full Federal Court)
and the yet unreported decision of the High Court of
Australia given on 18 December 1985 -- was an example of the use of the
Administrative Decisions (Judicial Review) Act to obtain review of a
magistrate's decision to commit two fugitives to prison pending possible
extradition to the United States.
It does not appear that this position has
changed, despite the enactment of s.18 of the Extradition (Foreign States)
Act. The time
available for an application under the Administrative Decisions
(Judicial Review) Act is 28 days and this period may be extended upon good
cause being shown: see s.11(1)(c) of that Act. Moreover, s.15 of the
Administrative Decisions (Judicial Review) Act gives to the Court power to
make an interim order suspending the operation of the decision the subject of
review pending the determination
of the review. This power would appear
sufficient to enable the Court, in a proper case, to suspend the operation of
a committal
order upon appropriate conditions as to bail; cf Alpaslan v
Minister for Immigration and Ethnic Affairs (unreported, Gray J., 16
July
1985). It is curious that a more restrictive regime was selected in respect of
Supreme Courts -- or this Court under the Extradition
(Foreign States) Act --
than is available under the Administrative Decisions (Judicial Review) Act. It
seems unfortunate that the fugitive is required to be informed only of those
more restrictive rules.
The charges
12. Mr Miszalski committed the applicant to prison in respect of five only of
the charges referred to in the notification by the
Attorney-General. He held
in respect of the remainder that there was no evidence sufficient to justify
putting the applicant on
his trial. Those five charges were identified as
charges 2, 3, 44, 45 and 46 in the warrant of the Deputy State Attorney for
Padua.
Counts 2 and 3 relate to a single incident which is alleged to have
occurred on 29 January 1979 when the applicant -- then aged
only 16 years and
8 months -- was a student at the Marconi Technical Institute in Padua. It is
necessary to read those charges in
association with charge No.1, to which
charges 2 and 3 refer. Charges 1, 2 and 3, as recorded in the English
language version tendered
to Mr Miszalski, are as follow:
"1) ... in complicity with one another, the(The applicant was not named as one of the "promoters and organizers", being named last in the list of 11 names).
first 9 as promoters and organizers, in
execution of a program adopted by the 'Ronde
Armate Proletarie@ (proletarian armed patrols)
of which they were members, which program was
intended to oppose 'selection@ in schools, and
RUGGERO, PAESOTTO, GRIGGIO and PREVATO having
materially committed the facts - set fire to
the registers and class works of the teachers
of the Technical Institute 'Marconi@ in order
to destroy them, thus putting the school
building in danger of fire."
"2) ... in complicity with one another and inCharges 44, 45 and 46 each relate to an incident said to have occurred at the Selvatico Technical Institute on 8 September 1980, the applicant being then aged 18 years. Those charges read as follow:
the capacities mentioned bove (sic) -
destroyed the school registers (public deeds)
mentioned above.
3) ... in complicity with one another, in
their aforesaid capacities and in order to
make an attempt on public safety and to commit
the offences mentioned above - possessed
inflammable substances, and in particular a
can containing three litres of petrol."
"44) ... in complicity with one another and for13. The Extradition (Foreign States) Act is made to apply in relation to the Republic of Italy by the Extradition (Republic of Italy) Regulations; but the application is subject to the terms of the Treaty of Extradition between Australia and the Republic of Italy signed on behalf of the Governments of the two countries on 28 November 1973, a text of which is annexed to the regulations. The effect of making the application of the Act subject to the terms of the Treaty is to require, in any particular case, compliance with the requirements of both the Act and the Treaty: see Riley and Butler (1984) 57 ALR 249 at pp.252-253. Article II of the Treaty deals with offences for which extradition may be granted. Relevantly, it provides:
purposes of terrorism and eversion of the
democratic order - decided to damage and
subsequently damaged with metal bars an
electronic laboratory and an electronic
computer in the Secretary's Office of the
Technical Institute 'P. Selvatico@,
threatening persons and causing damage to
other items existing in said Institute
(telephone sets, arm-chairs, a writing-desk, a
chair, typewriters, an amplifier, a mini
computer, a painting by Manzu accent and a
polyptych by Tono Zancanaro), thus causing
said Institute to suffer heavy financial
damage (not less than ten million lire).
45) ... in complicity with one another, being
masked and in order to subvert the democratic
order - decided to threaten and actually
threatened public officials (teachers and
other members of the Institute 'P. Selvatico@
while in the exercise of their duties).
46) ... in complicity with one another and for
purposes of terrorism and eversion of the
democratic order - deprived the teaching and
non-teaching staff of the Institute
'Selvatico@ of their personal liberty, said
staff being public officials in the exercise
of their duties."
"1. Extradition shall be granted for anI have set out all of the offences listed in sub-para.(b) of para.1 arguably relevant to the present case.
act or omission constituting an offence coming
within any of the following descriptions of
offences if the offence is, according to the
laws of both Contracting Parties:
(a) punishable by a punishment not less
severe than imprisonment or other
form of detention for two years;
and
(b) one for which extradition can be
granted:
...
(viii) Kidnapping; abduction; false
imprisonment.
...
(xvi) Arson.
(xvii) Malicious damage to property.
...
(xxiii) Attempting ... to commit ...
any offence for which
extradition may be granted
under the present Treaty.
2. Extradition shall also be granted for
any other act or omission constituting an
offence if the offence is, according to the
laws of both Contracting Parties:
(a) punishable by a punishment not less
severe than imprisonment or other
form of detention for two years;
and
(b) one for which extradition can be
granted.
3. Extradition shall also be granted for
participation in an offence to which this
Article applies if the participation is
punishable by the laws of both Contracting
Parties by a punishment not less severe than
imprisonment or other form of detention for
two years.
..."
14. Offences "punishable" by two years imprisonment
15. It is a fundamental requirement of Art.II that, to be extraditable, an offence must be "punishable" by a punishment not less severe than imprisonment for two years. It is a characteristic of each of the five offences in respect of which the applicant was committed to prison that the maximum punishment which might be imposed under the Italian Penal Code is a term of imprisonment exceeding two years. But, in relation to each offence, provision is made for a minimum term of less than two years and -- at least on one interpretation of Art.225 of the Code -- this minimum term is subject to further reduction in the case of offences committed by "responsible minors", that is persons aged between 14 and 18 years. Under those circumstances counsel for the applicant argues that none of the offences falls within Art.II. He says that since it is lawfully open to the Italian court to impose in a particular case a sentence of less than two years imprisonment it cannot be said that the offence is "punishable" by imprisonment for more than two years. The offence may lawfully be punished -- and in the particular case may in fact be punished -- by a lesser term of imprisonment. Counsel draws attention to the circumstance that this Treaty -- unlike the Treaty with Sweden referred to in Puharka v Webb (1983) 2 NSWLR 31 at p.36 -- does not speak of a maximum term of imprisonment of two years.
16. I do not accept the construction of Article II urged on behalf of the
applicant. It appears to me erroneous to approach the
matter by reference to
the available minimum sentence. The requirement of the Article is that "the
offence is ... punishable by
a punishment not less severe than imprisonment
... for two years". In other words, the offence must, in law, be able to be
punished
by such a term. An offence is so able notwithstanding that it may
also be able to be punished by imprisonment for a lesser term.
Such an
interpretation not only accords with the natural meaning of the words but is
sensible in application. The purpose of the
provision is to prevent
extradition for offences of a trivial nature. As Deane J. said in Riley and
Butler "... it is a well-recognized
standard of the international community
... that extradition -- with its attendant deprivation of liberty and
disruption of lives
-- should only be requested or granted in cases where the
alleged offence is a serious one". Upon the construction of the words
advanced on behalf of the applicant no offence would be extraditable if,
either in Italy or Australia, it were lawfully open to a
court not to impose a
sentence of imprisonment; for example by imposing a fine or requiring the
offender to enter into a good behaviour
bond. The wide discretion given to
Australian courts, at least, to take those courses would immediately rule out
extradition for
almost all offences.
Admissibility of statements by co-accused
17. Section 17(6) of the Extradition (Foreign States) Act, in its present
form, does not require the production to the magistrate
of authenticated
proofs of evidence. However, s.17(6) makes it a prerequisite to an order by a
magistrate for committal to prison
to await a warrant for surrender that the
magistrate be "satisfied ... that the person is liable to be surrendeed to the
foreign
state that made the requisition for surrender". In the case of Italy,
extradition is only to be granted if such proofs are provided.
Article XI(1)
of the Treaty, provides:
"1. If a request for extradition relates18. Counsel for the Attorney-General tendered to the magistrate, Mr Miszalski, three authenticated statements referring to the participation of the applicant in the two events the subject of the five charges. Those statements constituted the whole of the material before the magistrate which arguably implicated the applicant in the alleged offences. Two of those statements were made by a person who was himself cited in the warrant as a co-offender. The third statement was made by a person separately charged in respect of the same offence. Each statement was obtained in the course of questioning by officials concerned with the prosecution of the offences, although they were generally in narrative form rather than in the form of responses to questions.
to an accused person, extradition shall not be
granted unless evidence is furnished that the
offence for which his extradition is sought is
one for which extradition may be granted under
the present Treaty and evidence which would
be, according to the law of the requested
Party, sufficient to justify his trial if the
act or omission constituting the offence had
taken place in its territory."
19. Counsel for the applicant contends that statements by accused persons are not admissible against a fugitive. He emphasises the requirement of Art.XI(1) that the evidence furnished in support of the request for extradition be "according to the law of the requested Party" -- that is, in this case, the law of the relevant part of Australia -- "sufficient to justify his trial" if the act or omission constituting the offence had taken place in that part, that is New South Wales. It follows, he says, that only evidence which would be admissible in a trial of the applicant in New South Wales is admissible in extradition proceedings against him; a record of interview not being so admissible these statements may not be received as evidence against his client.
20. I accept the first step in this argument. The matter was dealt with in
the judgment of the Full Court in Riley and Butler (1984)
57 ALR at p.271:
"The application of Art VI resolves one other21. However, it is in my opinion erroneous to equate the statements tendered in the present proceedings to a record of interview of one accused tendered at a trial against another accused. Such a document is inadmissible at a trial not because the author of the statements made therein is himself or herself an accused person or because the statements were elicited through the questioning of the author by police officers, but simply because it is defective in form. A document containing assertions as to the acts or omissions of another person is generally inadmissible against that person at his or her trial. Subject to some exceptions, which are not presently relevant, that principle applies to any extracurial statement, whoever be the author and whatever be the circumstances of its making.
issue debated before us: whether the evidence
upon which the magistrate may act is confined
to evidence admissible in criminal proceedings
in Australia. This question must be answered
affirmatively, but subject to the
understanding that the test is one of
substance, not of form."
22. Both the Extradition (Foreign States) Act and the Treaty with Italy
envisage that evidence in extradition proceedings shall be
provided by
authenticated statements made outside court: see s.26 of the Act and Art.X(2)
of the Treaty. Art.XV(1) of the Treaty
requires "the authorities of the
requested Party" to "admit as evidence, in any proceedings for extradition, a
sworn deposition or
affirmation taken in the territory of the requesting Party
.. if it is duly authenticated". The obvious reason for this procedure
is the
impracticality of having witnesses attend court in the requested State to give
oral evidence on oath. So it is not to the
point that the statements tendered
against the applicant were made out of court. (I interpolate that it does not
appear that the
statements have been sworn or affirmed, as envisaged by
Art.XV(1). However, Art.X(2) may permit the courts of the requested State
to
act upon unsworn, though authenticated, statements. As no point was taken
that the statements were unsworn, and the matter has
not been argued, I
express no opinion as to whether this would have been a good ground for their
rejection by the magistrate.) The
question, in relation to admissibility,
must be whether, if the authors of the statements were called at a trial to
give oral evidence
to the same effect as their written statements, that
evidence would be admissible, under the law of New South Wales, against the
applicant. Assuming for the moment the relevance and probative value of the
contents of the statements, this question must be answered
in the affirmative.
Under our law sworn evidence given at a trial by an accused person -- even a
person who is himself a defendant
in that trial -- touching the conduct of
another accused person is evidence against that person. And, of course, it
makes no difference
that the incriminating evidence is given in response to
questions put at the trial by a person concerned with the prosecution of
the
offences, such as in cross-examination by the Crown Prosecutor. This general
objection to the admissibility of the statements
must be rejected.
Count 2: prima facie case
23. I have already referred to the test posed by Art.XI regarding the evidence required to be adduced before any order for committal may be made, that is that it be "sufficient to justify his trial"; sufficiency being determined by local standards. There is a question -- to which I will return -- as to what is meant by that test but, upon any view, it must include the requirement that the evidence adduced to the magistrate be sufficient to indicate a prima facie case of the guilt of the fugitive in respect of the offences in relation to which his extradition is sought. By "prima facie case of guilt" I mean evidence which, if it stood alone at a trial, could be accepted by a reasonable jury, properly directed, as a basis for a finding of guilt. In order to constitute a prima facie case there must, of course, be evidence capable of acceptance against the fugitive in respect of each element in the relevant offence. It is convenient to first consider the submission put by counsel for the applicant -- in relation to each charge -- that no prima facie case has been made out against his client.
24. Count 2 arises out of the alleged incident at the Marconi Institute.
That incident is referred to in the statements of Diego
Ruggero and Mauro
Paesotto. In a statement made at 1625 hours on 14 March 1982 at the Police
Headquarters, Padua and in the presence
of the duty defence lawyer of the day,
Mr Ruggero dealt with a number of incidents in which he was involved;
incidents spread over
some years. The statement included this passage:
"After the abovementioned convalescence,25. Mauro Paesotto, the person named by Mr Ruggero as the leader of the group, provided a series of statements referring to many incidents. In a statement made on 16 March 1982 he mentioned the Marconi Institute incident, but without specifying the date upon which it occurred. He referred, without further identification, to "Prevato"; saying that "Prevato" did not take part in the organization of the attack because at that time he did not belong to the Ronde Armate Proletarie. His description of the incident reads as follows:
towards the end of 1978 when I was enrolled at
the ITIS Marconi College in the last year of a
course for Heating technicians, I decided to
join an Inter-College Committee which already
existed. This Committee could be described as
a people's public structure for all students
from Padua, set up to promote debates,
strikes, demonstrations and other activities
in the struggle against the education
authorities.
...
During the year when I joined the
Inter-College Committee, in December 1978, the
following were also members: Mauro PAESOTTO,
Mario MUNARI, Giampaolo BORTOLETTO, someone
called Gianni nicknamed "Trudi" and also a
person called "Isa", Raul FRANCESCHI, Edoardo
REPETTO (who left anyway a couple of months
later) and somebody called Lorezzo whom I saw
very little of at the meetings and I found out
later that he had gone off to India shortly
after I joined. Mauro PAESSOTTO (sic) was at
that time head of the Committee or rather in
charge of it and the armed bands.
Within the activities of this Committee, it
was decided in January 1979 to carry out an
action against the school 'selection@ system
which we thought was especially severe in my
college. I remember that this was the subject
of a number of discussions and at a meeting
held in the Student's Room in the Faculty of
Physics in via Marzollo, we decided to take
action. We planned to introduce a group of us
into the Istituto Marconi during the evening
of an holiday. They were to get the teachers'
registers and records and burn them.
Under the leadership of Paesotto, ALL those
named above attended this meeting and
altogether it was decided that I was to be
entrusted with this action, that I was to
choose someone from the same College to join
me and thata (sic) another two people - who
were not present and I don't know their names
- were to provide backup from the outside by
warning me with a walkie-talkie radio if the
Police or watchmen showed up.
I chose my friend Libero William PREVATO to
come with me and asked him to get us a
walkie-talkie radio. Once we had it I kept
one half and gave the other to Paesotto the
day before the planned action and agreed on
the timing of the said action with him.
It was a Sunday evening. Prevato and I
climbed over one of the outside gates at the
back of the school and entered the school
through a window after breaking the glass with
a stone. After entering the building we went
to the teachers' room - we knew exactly where
it was located - and got the school registers
out of the teachers' cupboards. We had to
force some of the locks of the latter. We
piled all the registers up in one of the
nearby corridors and poured about three litres
of petrol over them. I had bought the petrol
earlier and brought it along in a tank. We
set fire to the registers and the jerry-can as
well and then left by the same way we had
entered without meeting anyone. Everybody
went their respective ways home."
"As to the execution of the attack in which I26. I agree with counsel for the applicant that Mr Paesotto's statement furnishes no evidence that the applicant committed either of the offences alleged against him in respect of the Marconi Institute: destruction of the school registers and possession of petrol with intent to destroy the records. It is not made clear that Mr Paesotto observed Mr Ruggero and the applicant to enter the College, but even assuming that the statement should be so construed, it says no more than that. The statement makes no reference to petrol, to a jerry-can or to any other equipment taken on the mission, other than a walkie-talkie. No information is provided as to what was done in the college by Mr Ruggero and the applicant. Mr Paesotto does say that "the action" was successful but he does not describe the nature of "the action", still less does he indicate that he himself observed it being successfully completed.
confirm I took part, I remember it was
executed on a Sunday evening and the operative
group consisted of RUGGERO, PREVATO, Lauretta
GRIGGIO and I.
RUGGERO and PREVATO entered into the College
which they knew because they were students of
it. Lauretta and I waited outside; we
pretended to be a couple in love; we had a
Walkie-Talkie PREVATO had got before, so we
tried to keep track of him and RUGGERO, since
they also had the same instrument. But the
connection wasn't possible because the
instruments didn't work. In spite of this,
the action was successful."
27. Counsel for the Attorney-General drew attention to a passage in the Full Court judgment in Riley and Butler at (1984) 57 ALR 272 in which reference was made to authorities upholding the admissibility of evidence in extradition proceedings in which a conclusion is expressed; the evidence not specifically indicating that the conclusion was derived from the personal observations of the witness. But the basis upon which such evidence was admitted in those cases was that it appeared from the evidence that the witness was in fact in a position to speak from his personal knowledge; though he omitted to say that he was actually so doing. That approach can have no application to a case, such as the present, in which the evidence shows that the witness was not in fact in a position to observe the relevant acts. The statement indicates that Mr Paesotto remained on watch outside the College with Lauretta Griggio. It follows that, in stating his conclusion that "the action was successful", Mr Paesotto must have been relying on what he was told by someone else.
28. In a subsequent statement, made on 7 April 1982, Mr Paesotto repeated that "Prevato" had no part in planning the attack on the Marconi Institute. He said that "Prevato" did not join the Ronde until shortly before 3 December 1979. He confirmed what he had previously stated regarding the execution of the attack but he took the account no further.
29. Counsel for the applicant concedes that the statement of Mr Ruggero -- if, contrary to his submission, admissible against his client -- establishes the physical acts necessary to make out a prima facie case against his client in respect of count 2. However, he urges two reasons why it should be held that no prima facie case has been established: that the evidence does not establish the necessary criminal intent and that, by reason of something emerging from a later statement of Mr Ruggero, the magistrate should have refused to act in reliance upon material in the statement of 14 March 1982.
30. In relation to the first matter, criminal intent, counsel refers to R v Phillips and Pringle (1973) 1 NSWLR 175, wherein the New South Wales Court of Criminal Appeal set aside the convictions of the appellants for malicious injury to property arising out of their action in sawing down the goal posts of the Sydney Cricket Ground during the 1971 tour of the South African Rugby team. Kerr C.J. and Jacobs P. held that the trial judge should have left to the jury, in connection with the issue of malice, the question whether the accused had any "lawful cause or excuse". Jacobs P. explained at p.289 that this phrase does not mean a legal right. Rather, as the examples given by both their Honours make plain, it means an explanation inconsistent with a guilty mind.
31. It seems to me that Phillips and Pringle is distinguishable from the present case. In Phillips and Pringle the accused had relied at their trial upon various United Nations' resolutions upon racial discrimination. The question on the appeal was whether, this matter having been raised, the prosecution had established beyond reasonable doubt the absence of malice, that is the absence of lawful cause or excuse. The case says nothing about the usual situation where no claim of lawful excuse is made and in relation to which -- although the prosecution always retains the onus of proof -- malice may be inferred from the mere fact of deliberate damage to property; unless, of course, something appears to suggest that the usual inference is inappropriate. There was material to raise an issue upon that question in Phillips and Pringle; there is none in the present case. Mr Ruggero and the applicant may well have thought themselves to be morally justified, in pursuit of their cause, in destroying the registers; but there is no suggestion of objective facts which would amount to lawful cause or excuse or of any belief by them of their entitlement to take such action. The clandestine nature of the operation is a clear indication to the contrary.
32. I turn to the second submission, based upon the later statement. On 29 March 1982, two weeks after his statement to the prosecution authorities, Mr Ruggero appeared before an Investigating Judge. He made a statement revising his earlier statement. In relation to some matters he confirmed what he had previously stated; in relation to other matters he denied or corrected what had been said. He said nothing, one way or the other, about the Marconi Institute incident involving the applicant. But in explanation of his mistake about a name mentioned in connection with another matter he said: "at the time of my examination by the Public Prosecutor I was highly agitated. I had not slept or eaten for two or three days and I was taking tranquillizers".
33. The statement of 29 March 1982 was part of the extradition material sent by the Government of Italy to Australia in connection with its request for extradition. However, it was not tendered to the magistrate by counsel for the Attorney-General. When the statement was tendered to the magistrate by counsel for Mr Prevato, counsel for the Attorney-General objected to its admission upon the basis that s.17(6A) of the Extradition (Foreign States) Act forbids the reception of evidence from the fugitive "to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person is requested". This provision, it is said, precludes the reception by a magistrate from the fugitive of any evidence which might tend against the case set up by the Attorney-General.
34. Subsection (6A) appears to have been inserted into the legislation in order to make it clear that the task of the magistrate, in relation to the question whether the evidence is sufficient to justify a trial, is merely to evaluate the case against the fugitive. The magistrate is not to conduct a preliminary trial of the fugitive in which he hears evidence in denial of the allegations from the fugitive or from witnesses called on his or her behalf. It would be difficult, if not impossible, satisfactorily to resolve a contest in relation to guilt by weighing evidence in the form of statements made by absent witnesses against sworn evidence on behalf of the fugitive about which there may be no opportunity even to obtain instructions.
35. The interpretation I have suggested is consistent with an explanation
given by the Attorney-General in his Second Reading speech
upon the
Extradition (Commonwealth Countries) Amendment Bill 1985, which Bill was
debated at the same time as the Extradition (Foreign
States) Amendment Bill
1985 and which was designed, inter alia, to insert into the Extradition
(Commonwealth Countries) Act 1966
a subsection in like terms to s.17(6A) of
the Extradition (Foreign States) Act. Mr Bowen said of the relevant
sub-clause:
"Evidence that may be led by a fugitive: AnSee House of Representatives Weekly Hansard, 20 March 1985, p.596.
extradition hearing is not intended to
determine the guilt or innocence of the
fugitive but whether a case exists which would
justify the fugitive's trial in the requesting
country. Magistrates have in the past
permitted fugitives to lead evidence to
challenge the merits of the prima facie case
sought to be established by the requesting
country. This amendment will make it clear
that such evidence may not be led. The
fugitive may of course argue that a prima
facie case is not established."
36. It is not inconsistent with the interpretation I have suggested and the intention referred to by the Attorney-General that the magistrate should be entitled to receive material which emanates from, or is adopted by, the prosecution witness who is the maker of the relevant allegation and which qualifies, explains or casts doubt upon that allegation. The prohibition in s.17(6A) is upon the reception of "evidence to controvert an allegation". To "controvert" is to dispute. The notion is one of contest between an allegation made by one person and evidence emanating from another. There may, of course, be some internal inconsistency in the evidence of the accuser -- the whole of which constitutes the "allegation" -- but this merely means that the whole of the evidence must be considered in order to determine what, in the end, is alleged by that person against the fugitive. Counsel for the Attorney-General accept that their argument involves the proposition that, in a case in which a witness had on page one of his statement named A as the perpetrator of a criminal act and on page two had corrected this identification stating that he was mistaken and that the perpetrator was in fact B, the Attorney-General would be entitled, in extradition proceedings against A, to tender page one alone and to have page two rejected under s.17(6A). Fortunately, as it seems to me, this is not the law. The question for the magistrate is the nature of the allegation made by the witness, that is the allegation current for consideration at the time of the proceedings for committal to prison. If the witness has made only one statement, the magistrate is entitled to have the whole of the relevant statement so that he or she may understand the context and be satisfied that incriminating material in one part is not cut down elsewhere. The same position must apply if the witness happens to have dealt with the matter in two separate statements. The second statement would not be tendered in controvertion of the witness' allegation but in proof of what the allegation now is. Accordingly, I am of the view that the statement of 29 March was admissible before the magistrate in relation to his evaluation of the earlier statment.
37. The argument put on behalf of the applicant is that the later statement showed that the earlier statement was obtained under such circumstances that an Australian court would, in the exercise of its discretion, exclude it from evidence. Reference was made to the well-known line of cases relating to the tender of evidence of admissions made by accused persons where it is shown that those admissions have been obtained as a result of improper or unlawful questioning: see R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1.
38. There are difficulties about transposing the rules governing the reception of evidence of extracurial admissions made by an accused person -- which rules are based upon the need for fairness to such a person -- to extracurial statements, relevantly admissible in curial proceedings, tendered against others. Fairness to the maker of the statement is not, in such a case, a relevant consideration. The real question is the reliability of the statement. If it appears, perhaps from the subsequent statement, that the earlier statement was made under such circumstances as to be unreliable, it will be appropriate to omit it from consideration. Indeed, if this is known in advance, it may be preferable to reject its tender as being a document having no probative value. But the process is one of evaluation of the earlier document in the light of the later document.
39. In the present case the magistrate was entitled to take the view, as he apparently did, that the contents of the later statement did not require him to discard the allegations made by Mr Ruggero against Mr Prevato in the earlier statement. Despite the claim of lack of sleep, Mr Ruggero did not suggest that everything he had previously stated was incorrect or that he had not appreciated what he was saying. He corrected certain particular items but, perhaps significantly, not this allegation. The earlier statement was not made under circumstances which indicated ex facie unreliability. On the contrary the interview was in the early afternoon in the presence of a lawyer attending to protect the interests of Mr Ruggero. Admittedly, the lawyer may not have known much about the case but he would presumably have intervened if it had appeared to him that Mr Ruggero was in such a condition as to not appreciate what he was saying.
40. I reject each of the arguments put by the applicant in answer to the
contention that the statement establishes a prima facie
case in respect of
count 2 and hold that there is such a case.
Count 3: prima facie case
41. The charge referred to in count 3 of the warrant, possessing an inflammable substance, is not an offence listed in Art. II(1)(b) of the Treaty. However, it is said on behalf of the Attorney-General that the alleged offence is made extraditable by para.3 of Art.II, the offence being punishable by a term of imprisonment of not less than two years in both Italy and New South Wales. This appears to be correct: see Art.435 of the Italian Penal Code and s.249 of the Crimes Act 1900 (NSW).
42. The evidence relating to count 3 has already been quoted, in the context of discussion of count 2. That evidence indicates that it was Mr Ruggero, not the applicant, who brought the petrol to the Marconi Institute. There is no evidence that, at any stage, the applicant had physical control of the petrol or that he was aware of the contents of the jerry-can being carried by Mr Ruggero. But it is said on behalf of the Attorney-General that this does not matter, that the possession of the jerry-can by Mr Ruggero was possession pursuant to the common purpose between him and the applicant so that such possession constituted possession by the applicant. Counsel referred to Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.
43. One difficulty about this submission is that there is no evidence as to
any preconcert between Mr Ruggero and Mr Prevato to set
alight the registers
or to take an inflammable substance into the Institute. Mr Ruggero's
statement makes it clear that the applicant
did not attend the meeting at
which the attack was planned; he was not then a member of the group. The
applicant was brought into
the matter because he was a friend of Mr Ruggero
and he was asked to get a walkie-talkie radio, which Mr Ruggero gave to Mr
Paesotto
on the day before the planned action. The statement is silent as to
what, if anything, Mr Prevato was told about the planned activity.
Surmise is
an insufficient basis for a finding of common purpose. The members of the
High Court who decided Tripodi emphasised
-- at p.7 -- the need to prove
preconcert:
"When the case for the prosecution is that in44. A further difficulty about count 3 arises out of the inclusion in the charge of the allegation that the accused possessed the petrol "in order to make an attempt on public safety". This is not mere surplusage. Article 435 of the Italian Penal Code, upon which the charge is based, provides as follows:
the commission of the crime a number of men
acted in preconcert, reasonable evidence of
the preconcert must be adduced before evidence
of acts or words of one of the parties in
furtherance of the common purpose which
constitutes or forms an element of the crime
becomes admissible against the other or
others, that is to say of course, unless some
other ground for admitting the evidence exists
in the given case. ...
It must be remembered that the basal reason
for admitting the evidence of the acts or
words of one against the other is that the
combination or preconcert to commit the crime
is considered as implying an authority to each
to act or speak in furtherance of the common
purpose on behalf of the others."
"435. Whoever, for the purpose of anAlthough the term is not defined, "public safety" appears to be used in the sense of danger to members of the public; that is to life and limb. There is no evidence of any such danger in relation to the destruction of the registers. The incident took place on a Sunday evening. So far as the evidence indicates, the building was deserted. Counsel for the Attorney-General submits that the mere lighting of a fire, doused with petrol, would create a risk of a conflagration of the building; which conflagration might attract fire fighters who might thereby be injured. Perhaps so; although it would be impossible to assess the extent of that risk without more information about the corridor in which the fire was lit. But even if the possibility of injury to fire fighters be conceded, this possibility is not enough. Article 435 requires that the offender have the inflammable materials in his or her possession "for the purpose of an attack against public safety". Count 3, recognizing the necessity for intent, alleges that the petrol was possessed "in order to make an attempt on public safety". Possession with intent to use in such a manner as may incidentally create a danger of injury to members of the public is not enough.
attack against public safety, manufactures,
acquires or possesses dynamite or other
explosive, asphyxiating, blinding, toxic or
inflammable materials, ... shall be punished
by imprisonment for from one to five years".
45. The evidence does not disclose a prima facie case in relation to count
3.
Counts 44, 45 and 46: prima facie case
46. Counts 44, 45 and 46 each relate to the incident said to have occurred at the Selvatico Institute on 8 September 1980, by which date the applicant is said to have become a member of the Ronde Armate Proletarie. The three counts may be considered together.
47. In a statement furnished to the Deputy State Attorney on 1 March 1982,
Walter Buzzi, a person who was charged by a separate warrant,
admitted to
having "taken part in the episode that occurred in the 'P. Selvatico@
Institute on 8 September 1980". He named as "participants"
11 persons
including "Prevato", without fuller identification. Later he said that
"twenty or so others called in for the occasion"
also took part in the raid on
the Institute. Mr Buzzi attended a meeting which took place a few days before
8 September, at which
"Prevato" was present. He went on:
"The meeting took place at about 5 p.m. and the48. At a subsequent interview, made on 6 April 1982 in prison before the Investigating Judge, Mr Buzzi recanted the allegations made in the statement of 1 March 1982, and in one later statement; claiming that he had been subjected to psychological pressure and had been slapped and punched by a police officer so that he preferred to admit all the charges and to name "the youngsters I knew because I used to meet them in Piazzi dei Signori or at the movement meetings. They were the names of persons depicted in the photographs I was shown in the police station". Despite certain comments by the Investigating Judge Mr Buzzi maintained this position, asserting that "What I said to the Public Prosecutor in my previous two examinations is not true. I am extraneous to the facts with which I have been charged, and I know nothing about said facts".
action was discussed and decided selectively.
According to our intention, it was to be a
demonstrative action within the context of the
struggle against selection in the schools. We
decided to gather at 11 a.m. on the 8th
September outside the 'Selvatico@ and then to
go inside in separate groups: one was to take
the teachers in their respective classrooms
and concentrate them in the hall; another one
was to make the demonstrative 'writings@;
another one was to go to the premises where
the video terminal was installed, wanting to
stop this from working, but I do not know the
precise reason for that. It was also decided
that each participant should take some garment
for purposes of disguise, and a wooden stick.
Lastly, we agreed to concentrate in two
different places: one group of about twenty
youngsters was to be in the public gardens by
the 'Siamic@ coach station; another group,
perhaps a bigger one, was to gather in front
of, or rather close to the Institute.
The morning of the 8th September, at the
arranged time, I joined the second group,
which was shortly afterwards joined by the
other one. We all went in together: one
group headed for the classrooms, another one
went along the corridors to write up the
words, and another one headed for the room
where the video terminal was. We were all
disguised with handkerchiefs and scarves and
were holding sticks. I personally was
disguised with a red handkerchief.
Among those taking part in the action I
recognized all those I have named, because,
shortly before entering the Institute, I had
seen them with their faces not covered over.
We disguised ourselves only the moment we
crossed the entrance to the Institute. On the
basis of the task assigned to me, I joined the
group (consisting of 10/1? youngsters)
supposed to carry out the action in the
classrooms, to take the teachers out of them.
We went to more or less all the classes and
there was no violence. The teachers were
invited to line up in the corridors and in the
hall. During these operations, one of us, I
believe it was Paesotto, used a whistle to
coordinate the actions of the groups.
During the phases I have described, some of us
stayed by the entrance to prevent anyone from
coming in or going out.
The action lasted in all six or seven minutes.
When we left the Institute, we split up, each
of us going his own way."
49. Whatever may be the truth about the circumstances in which the first statement was made, the fact of the recantation makes Mr Buzzi's evidence a dubious basis for the making of any finding about the applicant's participation in the raid at the Selvatico Institute. And it is the only evidence offered as to the events of that day. Mr Paesotto refers in one of his statements to a meeting, attended both by himself and "Prevato", at which the raid was planned but he asserts -- in contradiction of Mr Buzzi who had him (Paesotto) blowing a whistle -- that on the day itself he "had some mishaps at home" and could not go to the Selvatico Institute. But even if weight is given to Mr Buzzi's first statement, it establishes no more against the applicant than that he participated in the planning of the raid and that he was one of those who assembled outside the Institute immediately before the raid. Nothing is said as to the applicant's subsequent actions. He may have joined one of the three groups -- according to Mr Paesotto it was planned that he would be in the second group which would take the teachers from their classrooms and assemble them in the hall -- but whether he did so is not shown. Whether he participated in any of the actions referred to in counts 44, 45 or 46 does not appear.
50. There is no prima facie case against the applicant in respect of any of
counts 44, 45 or 46.
Evidence sufficient to justify trial
51. My finding that there is no prima facie case in respect of each of counts 3, 44, 45 and 46 means that there was not evidence adduced to the magistrate sufficient to justify the trial of the applicant upon any of those counts. But I have held that there is a prima facie case in respect of count 2 and this makes it necessary to consider whether, as counsel for the applicant submits, the evidence would nevertheless be insufficient to justify his trial if the relevant acts had taken place in New South Wales.
52. Counsel for the applicant puts two submissions in relation to this issue. He says that, in considering the sufficiency of the evidence, the magistrate was required to have regard not only to the probative value of the evidence upon the issue of guilt or innocence but also to the surrounding circumstances which that evidence disclosed and which related to the question whether it would be a proper course to require the applicant now to stand his trial in Italy. Counsel points out that the relevant alleged offence is said to have occurred seven years ago, when the applicant was aged only 16 years and 8 months, that the applicant was not then a member of the group but became involved only because of his friendship with Mr Ruggero -- who was six years his senior -- that, so far as appears, the damage resulting from the offence was merely the destruction of some records of the Institute and that the applicant has already spent four months in prison in Australia in relation to the extradition proceedings. It is inconceivable, counsel suggests, that a person in the situation of Mr Prevato would be required to stand trial in New South Wales. He refers to R v Freeman (25 October 1985, unreported) in which the New South Wales Court of Criminal Appeal had regard to the fact that the relevant conduct took place over six years previously, and that the appellants had served a brief period in custody and undergone a lengthy trial, in declining to order a new trial after setting aside their convictions.
53. I agree with counsel that it is highly unlikely that a person in the position of Mr Prevato would now be asked to stand his trial in New South Wales; but it is not clear to me that the magistrate was entitled to take that matter into account. Counsel for the applicant refers to Malaysia-Singapore Airlines Limited v Parker (1972) 3 SASR 300 in which Bray C.J. considered an application to register in South Australia a default judgment obtained in Singapore. The relevant South Australian statute made registrable such a judgment, inter alia, where "the circumstances in which jurisdiction was assumed by the original court justify recognition of the judgment on the basis of comity ...". His Honour read the word "justify" as meaning "justified according to the view taken by the court, in the exercise of a judicial discretion, of questions of policy, juristic propriety and international co-operation". In determining that question the Chief Justice considered all of the circumstances surrounding the obtaining of the judgment. However, I do not think that this decision is of assistance in the present case. In Malaysia-Singapore Airlines the court was required to consider "the circumstances" in which the judgment was obtained. In the present case the question posed by Art.X1(1) is whether there is evidence sufficient to justify a trial. I think that the relevant inquiry is limited to the strength of the evidence to support the charge, that is whether it is sufficiently probative of guilt to justify a trial. The Article does not require consideration of the question whether the circumstances relating to the fugitive, or surrounding the offence or the proceedings for extradition, are such as to justify a trial. No doubt these are matters to which the Attorney-General may have regard in considering whether to allow the extradition to proceed -- both the initiation of extradition proceedings (see s.15(1)) and the issue of a warrant for surrender (see s.18A(1)) are discretionary matters -- but they are not matters for the magistrate.
54. The content of the phrase "sufficient to justify his trial" has been considered in a number of cases. In the United Kingdom the view has been taken that it is enough that the evidence disclose the existence of a prima facie case, in the sense defined above: see R v Governor of Brixton Prison; ex parte Schtraks (1964) AC 556 at pp.580, 600, 609, Beese v Governor of Ashford Remand Centre (1973) 1 WLR 1426 at p.1429; although compare R v Governor of Brixton Prison; ex parte Mourat Mehmet (1962) 2 WLR 686 and R v Governor of Brixton Prison; ex parte Sadri (1962) 1 WLR 1304 in which the test applied was "strong or probable presumption of guilt". But whatever be the position in the United Kingdom, Art.X1(1) of the Australian-Italian Treaty specifies the presently relevant test. That Article requires evidence which would, according to the law of the part of the requested State in which the magistrate is sitting, be sufficient to justify a committal for trial. In a jurisdiction where the law requires a higher standard of evidence for a committal for trial than a mere prima facie case that higher standard will apply. That is the position in New South Wales. Although the wording of the relevant statutory provision has altered, it has long been recognised that the test applied in proceedings for committal for trial applies to extradition proceedings: see Bedgood v Keeper of Her Majesty's Penitentiary at Malabar (1975) 2 NSWLR 144 at p.150.
55. The Justices Act 1902 (NSW) requires a magistrate, in proceedings for committal for trial first to consider whether there is evidence capable of satisfying a reasonable jury, properly instructed, of the guilt of the defendant beyond reasonable doubt: see s.41(2) read with s.41(8). If that question is answered affirmatively, certain procedures are to be taken including the provision of an opportunity to the defendant to give evidence. Upon completion of those procedures the magistrate must determine whether a reasonable jury, properly instructed, "would not be likely to convict the defendant". Only if the magistrate is not of that opinion may he commit for trial: see s.41(6).
56. Section 41(6) was amended following the decision of the New South Wales
Court of Appeal in Wentworth v Rogers (1984) 2 NSWLR 422. In Carlin v
Chidkhunthod (13 November 1985, not reported) O'Brien C.J. of Cr.D analyzed
the requirement of the present subsection. His Honour
referred to the
necessity for the magistrate to give attention "to the weight and
acceptability of the evidence in relation to the
character of the evidence
itself and the credibility of the witnesses who gave it" but he rejected the
argument that the word "likely"
imported an inquiry as to the probability of a
conviction. He went on:
"By this stage of the proceedings the57. In the present case the only evidence offered against the applicant in respect of count 2 is that contained in the statements of Mr Ruggero and Mr Paesotto. The statements were each made -- apparently for the first time -- some three years after the incident at the Marconi Institute. That fact, in itself, must affect their weight. The deponents are each persons accused by the same warrant as that which names the applicant as having committed the same offence. The evidence adduced to the magistrate does not indicate whether they have been dealt with for their alleged offence. It cannot be said that, in a trial held under New South Wales law, they would be compellable witnesses. Each is an accomplice; indeed a person much more involved in the instigation and planning of the alleged offence than is the applicant. In Davies v Director of Public Prosecutions (1954) AC 378 at p.397 Lord Simonds, L.C., speaking for the House of Lords, approved R v Baskerville (1916) 2 KB 658, in which the Court of Criminal Appeal set out at p.663 the law relating to the evidence of accomplices in these terms:
magistrate has determined that upon all the
evidence for the prosecution, if believed, a
jury could reasonably find the offence proved
beyond reasonable doubt. Having heard all
that evidence and then the evidence for the
defence he is to make a forecast of the effect
all the evidence would have upon such a jury.
...
In determining then whether a defendant should
be committed for trial the function intended
by s.41(6) as best serving the interests or
competing interests of all concerned is, in my
opinion, that the defendant should be
discharged when an opinion can affirmatively
be reached that there is no real chance or
prospect of conviction but that in the absence
of such an opinion the defendant should be
committed."
"There is no doubt that the uncorroboratedThe Court went on to discuss what constituted corroborative evidence; concluding at p.667 with this statement:
evidence of an accomplice is admissible in
law: ... But it has long been a rule of
practice at common law for the judge to warn
the jury of the danger of convicting a
prisoner on the uncorroborated testimony of an
accomplice or accomplices, and, in the
discretion of the judge, to advise them not to
convict upon such evidence; but the judge
should point out to the jury that it is within
their legal province to convict upon such
unconfirmed evidence: ...
This rule of practice has become virtually
equivalent to a rule of law, and since the
Court of Criminal Appeal Act came into
operation this Court has held that, in the
absence of such a warning by the judge, the
conviction must be quashed: ... If after the
proper caution by the judge the jury
nevertheless convict the prisoner, this Court
will not quash the conviction merely upon the
ground that the accomplice's testimony was
uncorroborated. It can but rarely happen that
the jury would convict in such circumstances."
"We hold that evidence in corroboration must be58. Counsel for the Attorney-General argues that the statement of Mr Paesotto furnishes corroboration of the statement of Mr Ruggero. I do not think that it does. I put to one side the deficiencies in that statement which I have already noted: the lack of proper identification of the person referred to as "Prevato", the lack of a date for the incident and the lack of any indication that Mr Paesotto himself saw Mr Prevato on the evening in question. If these matters be assumed against the fugitive, there is material tending to confirm that on an unidentified Sunday evening Mr Prevato entered the Marconi Institute in company with Mr Ruggero; Mr Paesotto standing watch outside with Miss Griggio. But there is no admissible evidence in Mr Paesotto's statement to show "that the crime has been committed", still less to show that Mr Prevato committed it. And, in any event, a jury would have to be warned that Mr Paesotto was himself an accomplice so that even his corroboration must be treated with extreme caution. Given the age, sources and lack of particularity of the statements a reasonable jury, properly instructed, would, in my opinion, be likely to regard the evidence they contained as insufficiently probative to warrant the conviction of the applicant on count 2. In the words of O'Brien C.J. in Cr.D. the appropriate opinion is that there would be "no real chance or prospect of conviction" upon this evidence; so that a magistrate applying the test set out in s.41(6) of the Justices Act would decline to commit. It follows that the evidence does not satisfy Art.X1 of the Treaty.
independent testimony which affects the
accused by connecting or tending to connect
him with the crime. In other words, it must
be evidence which implicates him, that is,
which confirms in some material particular not
only the evidence that the crime has been
committed, but also that the prisoner
committed it."
59. Section 13(1) of the Extradition (Foreign States) Act provides that a person is not liable to be surrendered to a foreign state "if the offence to which the requisition for his 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 the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character". Article VIII of the Treaty between Australia and Italy contains a similar, although not identical, provision.
60. The wording of s.13 of the Extradition (Foreign States) Act is similar in substance to that contained in s.3(i) of the Extradition Act 1870 of the United Kingdom. There have been a number of decisions in English courts relating to the application of that provision but counsel for the Attorney-General submit that it is unnecessary for the Court, in the present case, to consider those authorities because, in this case, the question whether any of the alleged offences was an offence of a political character is a matter for the Attorney-General alone, and not for the Court. Counsel draw attention to the scheme of the Act, pointing out that , if at the relevant time the Attorney-General is of the opinion that the relevant offences are of a political character, he or she is forbidden both to initiate extradition proceedings in an Australian court (s.15(2)) and to issue a warrant for the surrender of the fugitive (s.18A(1)). Counsel concede that the magistrate is entitled to have regard to the question whether the offence is one of a political character in a case where the fugitive has adduced evidence to that effect. This concession is made upon the basis that s.17(6)(b) permits evidence to be adduced by the fugitive on that issue, a permission which would be pointless if the magistrate was required to disregard that evidence. But it is said that where no such evidence is presented the magistrate -- and on review this Court -- is not concerned with the question.
61. I do not accept this construction of the Act. Section 13(1) provides that a person "is not liable to be surrendered" for extradition if the relevant offence is an offence of a political character. By s.17(6)(b) the magistrate is required to be satisfied, before making an order for committal of a person, that the person "is liable to be surrendered". This means that, in any case in which any claim is made of non-liability to surrender pursuant to s.13 (see Riley and Butler at (1984) 57 ALR 255), the magistrate must be satisfied that the claim is unfounded and that the person is in law liable to be surrendered. For the purposes of determining that matter the magistrate is required to consider "any evidence properly adduced by the person"; but it is not a pre-condition of such determination that evidence has been adduced. The political character of the relevant alleged offence may appear from the evidence adduced to the magistrate on behalf of the Attorney-General; cf. the comment of Lord Goddard C.J. in R v Governor of Brixton Prison; ex parte Kolczynski (1955) 1 QB 540 at p.550. It is true, as counsel for the Attorney-General points out, that it is likely that the Attorney-General will have had all of this material before him at the time when he decided to institute the extradition proceedings so that, if no evidence is adduced on behalf of the fugitive, the magistrate is placed in the position of being asked to review the opinion of the Attorney-General upon that point. But there is no anomaly in that; it is unrealistic to expect that the Attorney-General would have had the same opportunity as the magistrate for unhurried consideration of the case and, of course, the Attorney-General would lack the benefit of argument on behalf of the fugitive. The policy of the Extradition (Foreign States) Act is to ensure that, at each stage of the extradition process, consideration is given to any material suggesting that the offence was of a political character; as was said by Viscount Radcliffe in Schtraks at p.586 in relation to the similar scheme of the United Kingdom Act: "it seems to be the evident intention of the statute that the issue" (of political character) "should be considered as a substantive matter at any stage by any authority, magistrate, court or Secretary of State, which has a duty to perform in relation to the extradition". In that case fresh evidence upon that issue was permitted to be adduced even in the House of Lords. The question whether the offences in relation to which the extradition of Mr Prevato is sought are offences of a political character fell within the jurisdiction of the magistrate. Upon an application for review of the magistrate's decision it is a matter for this Court.
62. The first case under s.3(i) of the United Kingdom statute was In re Castioni (1891) 1 QB 149, a case in which extradition was sought upon a charge of murder. The prisoner was said to have participated in an armed insurrection against the government of the canton of Ticino in Switzerland in the course of which he shot a member of the State Council of the canton. The Divisional Court upheld the fugitive's claim that the offence was one of a political character. All members of the Court emphasized that it was not enough that the alleged offence had taken place in the course of a political disturbance -- a person might use such a disturbance as a cloak for an act of private vengeance or greed -- but that the crime was political if committed as part of a political activity and with a political object in mind. Each member of the Court accepted that an offence was of a political character if, with the requisite object, it occurred in the course of a political disturbance.
63. No attempt was made in Castioni to frame an exhaustive definition of "offences of a political character". Neither was it necessary to determine whether it was an essential characteristic of such an offence that there be a disturbance of the peace or that there be political parties contending for power; both features were present in Castioni. The latter question, however, arose three years later in Re Meunier (1894) 2 QB 415; a case in which France sought the extradition of a self-confessed anarchist on charges of wilfully causing certain explosions, occasioning death. The Divisional Court held that, in order to constitute an offence of a political character there must be two or more parties competing for government in the requesting State, each seeking to impose the government of their choice upon the other. As the party with whom M Meunier was associated was opposed to all governments, this condition was not fulfilled.
64. In more recent times the narrow interpretation adopted in Meunier has been rejected. Thus in Kokczynski the Divisional Court upheld a claim of political character made by seven members of the crew of a Polish fishing trawler who took charge of the ship whilst it was in the North Sea -- assaulting and/or imprisoning certain officers in the process -- and brought it into port at Whitby, where they sought political asylum. In answer to extradition proceedings brought by Poland, based upon various charges of assault, wounding and damage to property, the seven men argued that the offences were of a political character in that it was a rebellion against the political officers commanding the ship; or alternatively that the requisition had been made with a view to trying or punishing them for an offence of a political character. Notwithstanding that Poland was a one party State, and that the seven men were not members of a political group, they succeeded on the second ground. The Court was satisfied that the offences for which the men would be tried were the offences alleged in the extradition proceedings -- all of which were extraditable offences and not obviously political in character -- but that, having regard to evidence as to the recording of their conversations and the circumstances in which the rebellion occurred, the prosecution would in fact be a political prosecution.
65. The concept of an "offence of a political character" received extensive
attention in the House of Lords in Schtraks. The fugitive
claimed that the
offences of perjury and child stealing alleged against him by Israel fell
within this description because they arose
out of his intervention to ensure
that the child, his nephew, was brought up in the orthodox Jewish faith. Both
the issue of religious
upbringing and the case itself were matters of
political controversy in Israel but the fugitive had acted merely out of
personal
conviction and not as a member of any political party. His claim of
political character failed. Lord Reid pointed out, at p.581,
that the list of
extraditable crimes did not include any offences which were overtly political,
so that the question for the court
must always be to determine whether an
offence which is, on its face, an ordinary criminal offence has in fact a
political character.
At p.583 he observed that the court was not concerned
with the question whether any political cause espoused by the fugitive was
good or bad -- and compare the observation of Denman J. in Castioni at p.158
that the court is not concerned with the wisdom of carrying
out the relevant
act in the advancement of that cause -- but that "the motive and purpose of
the accused in committing the offence
must be relevant and may be decisive".
His Lordship went on to reject the necessity for open insurrection or for an
intention to
change the composition of the government:
"An underground resistance movement may be66. Viscount Radcliffe thought that the concept of a political offence should be limited to opposition between citizen and government; that it is not enough that there be a contest between opposing political forces not in power. He said at pp.591-592:
attempting to overthrow a government and it
could hardly be that an offence committed the
day before open disturbances broke out would
be treated as non-political while a precisely
similar offence committed two days later would
be of a political character. And I do not see
why the section should be limited to attempts
to overthrow a government. The use of force,
or it may be other means, to compel a
sovereign to change his advisers, or to compel
a government to change its policy may be just
as political in character as the use of force
to achieve a revolution. And I do not see why
it should be necessary that the refugee's
party should have been trying to achieve power
in the State. It would be enough if they were
trying to make the government concede some
measure of freedom but not attempting to
supplant it."
"In my opinion the idea that lies behind the67. I have referred extensively to Schtraks because this decision, and especially the quoted passage from the speech of Viscount Radcliffe, was adopted by the High Court of Australia upon the only occasion, of which I am aware, that any Australian court has had to consider the nature of an offence of a political character: The Queen v Wilson; ex parte Witness T [1976] HCA 33; (1976) 135 CLR 179. In that case a prospective witness sought to prohibit a magistrate from taking evidence, under s.27 of the Extradition (Foreign States) Act, in relation to a pending criminal trial in the Federal Republic of Germany. The offences were alleged to have occurred in White Russia during the wartime occupation of that area by Germany. Barwick C.J., with whom Gibbs and Stephen JJ. agreed in terms and Mason J. agreed in substance, applied the words of Viscount Radcliffe to dismiss the claim. At p.184 his Honour said:
phrase 'offence of a political character@ is
that the fugitive is at odds with the State
that applies for his extradition on some issue
connected with the political control or
government of the country. The analogy of
'political' in this context is with
'political' in such phrases as 'political
refugee,' 'political asylum' or 'political
prisoner.' It does indicate, I think, that
the requesting State is after him for reasons
other than the enforcement of the criminal law
in its ordinary, what I may call its common or
international, aspect. It is this idea that
the judges were seeking to express in the two
early cases of In re Castioni and In re
Meunier when they connected the political
offence with an uprising, a disturbance, an
insurrection, a civil war or struggle for
power: and in my opinion it is still
necessary to maintain the idea of that
connection. It is not departed from by taking
a liberal view as to what is meant by
disturbance or these other words, provided
that the idea of political opposition as
between fugitive and requesting State is not
lost sight of: but it would be lost sight of,
I think, if one were to say that all offences
were political offences, so long as they could
be shown to have been committed for a
political object or with a political motive or
for the furtherance of some political cause or
campaign. There may, for instance, be all
sorts of contending political organisations or
forces in a country and members of them may
commit all sorts of infractions of the
criminal law in the belief that by so doing
they will further their political ends: but
if the central government stands apart and is
concerned only to enforce the criminal law
that has been violated by these contestants, I
see no reason why fugitives should be
protected by this country from its
jurisdiction on the ground that they are
political offenders."
"Here, the offences of which Albert Kruger is68. I will refer shortly to two recent English decisions cited by counsel: R v Governor of Pentonville Prison; ex parte Cheng (1973) AC 931 and R v Governor of Pentonville Prison; ex parte Budlong (1980) 1 WLR 1110. Cheng was a case in which the United States of America sought the extradition of a Taiwanese citizen, resident in the United States, who was a member of an organization opposed to the ruling Nationalist Party government in Taiwan. Mr Cheng was accused of the attempted murder of the Taiwanese vice-premier during a visit of the latter to the United States. By majority, Lord Hodson, Lord Diplock and Lord Salmon, Lord Wilberforce and Lord Simon of Glaisdale dissenting, the House of Lords rejected his claim that the offence was one of a political character. The majority applied the words of Viscount Radcliffe in Schtraks to hold that there must be conflict upon a political matter between the fugitive and the government of the requesting State. In the case under consideration the fugitive had no quarrel with the United States government -- the requesting State -- but only with the Taiwanese government.
accused are founded upon acts which are not
shown to have been done in any sense by way
of, or in performance of, political opposition
by him to Germany as it formerly was, or to
West Germany which now prosecutes him: nor is
it shown that they were done in the course of
a political disturbance."
69. The facts of Cheng are remote from the present case but the speech of
Lord Diplock is interesting for its emphasis upon single
purpose. At p.945
his Lordship said:
"So, even apart from authority, I would hold70. Budlong was also a case in which the United States sought extradition; on this occasion of two persons said to have been involved in burglaries of various offices of United States government agencies. The burglaries were committed by members of the Church of Scientology with the purpose of obtaining information regarding actions taken against the Church by those agencies. The Divisional Court rejected the claim of political character, saying at p.1124:
that prima facie an act committed in a foreign
state was not 'an offence of a political
character@ unless the only purpose sought to
be achieved by the offender in committing it
were to change the government of the state in
which it was committed, or to induce it to
change its policy, or to enable him to escape
from the jurisdiction of a government of whose
political policies the offender disapproved
but despaired of altering so long as he was
there."
"...that the applicants did not order these71. Counsel for the Attorney-General points out that in Budlong there was no reference to the object of changing government policy; but the case cannot be regarded as authority for the view that such an object may not be sufficient to institute an offence of a political character. This would be inconsistent with the speeches in both Schtraks and Cheng.
burglaries to take place in order to challenge
the political control or government of the
United States; they did so to further the
interests of the Church of Scientology and its
members..."
72. The evidence in the present case, emerging from the statements of all three witnesses, was that the acts in relation to which Mr Prevato is charged occurred in the course of a long and bitter campaign to induce a change in educational policy in government schools in Padua. The evidence does not show whether these schools were conducted by the national government or by a provincial or local government but it is not an essential requirement of a political offence that the relevant contest be with the national government. Castioni shows that. The early debate upon the necessity for there to be a campaign to change the government itself was decisively resolved in the negative in Schtraks; it is enough that there be a concerted campaign to change government policy. Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organized, prolonged campaign involving a number of people. The offence must be directed solely to that purpose; it must not involve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the campaign may be a political offence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be.
73. In the present case these requirements are all satisfied. The matter of
purpose does not depend only upon the statements of
the three co-accused men.
It is fundamental to the case alleged by the Republic of Italy against Mr
Prevato. Not only is there no
suggestion of private purpose; count 1 of the
warrant alleges that the 11 persons named therein carried out the alleged
offences
"in execution of a program adopted by the 'Ronde Armate Proletarie'
of which they were members, which program was intended to oppose
'selection@
in schools". The incidents at the Marconi Institute and the Selvatico
Institute were not acts preliminary or incidental
to the campaign; they were
active acts of protest, part of the political campaign itself. Once it is
determined that there is no
necessity for the relevant campaign to be one
seeking a change in government, that it is enough that the campaigners seek a
change
of government policy, there is no valid distinction between this case
and Castioni. To adopt the words of Lord Reid in Schtraks,
this was a case of
"the use of force ... to compel a government to change its policy" and, upon
the evidence and the allegations,
for no other purpose. For these reasons I
am of the opinion that the offences alleged against the applicant are all
offences of
a political character, so that -- even if there were evidence
sufficient to justify his trial for those offences -- his surrender
may not
lawfully be ordered.
Orders
74. For the reasons I have set out it seemed to me proper, on 31 January 1986, to make orders in Application G.6 of 1986, in respect of each of the five counts in relation to which the applicant was committed to prison, that it be declared that the evidence adduced before Mr Miszalski was not sufficient to justify his trial if the various acts or omissions constituting the alleged offences had taken place in New South Wales and that the offence was an offence which, by reason of the circumstances in which it was committed, was an offence of a political character, in respect of which the applicant was not liable to be surrendered. I ordered that the decision of Mr Miszalski be set aside and in lieu thereof that the applicant be released and that the Attorney-General pay the applicant's costs.
75. As I have mentioned, Application G.16 of 1986, is directed to a limited issue: the question whether the magistrate accorded natural justice in relation to the question whether the applicant should be imprisoned, as distinct from being held in some other form of custody pending the decision of the Attorney-General. In view of the views I have formed, and the orders I have made, in matter G.6 of 1986 that question is now academic. I propose to express no view on the question raised but simply to order that Application G.16 of 1986 be dismissed with no order as to costs.
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