Re Federal Republic of Germany v Jamal Abdul Kadar Haddad [1990] FCA 31 (12 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: FEDERAL REPUBLIC OF GERMANY
And: JAMAL ABDUL KADAR HADDAD
No. G573 of 1989
FED No. 63
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus(1), Foster(1) and Von Doussa(1) JJ.

CATCHWORDS

Extradition - authentication of supporting documents - document in German language bearing seals - whether admissible without translation - principle that proceedings conducted in English.

Extradition Act 1988, s.19

HEARING

SYDNEY
12:2:1990

Counsel for the appellant: Mr M.F. Adams QC and

Ms E.L. Fullerton

Solicitors for the appellant: Director of Public Prosecutions

Counsel for the respondent: Mr L.P. Robberds QC and
Mr P. Kintominas

Solicitors for the respondent: Benjamin and Khoury

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of and incidental to the appeal, to be taxed.

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

DECISION

This is an appeal from a judgment of a single judge of this Court (Wilcox J.) brought under s.21(3) of the Extradition Act 1988. By the judgment under appeal, the primary judge quashed a magistrate's decision in extradition proceedings brought by the present appellant.

2. On 19 April 1983, the appellant pleaded guilty to certain charges in the Local Court at Ludwigsburg in the Federal Republic of Germany. He was sentenced to a juvenile prison sentence of one year and six months, which was by a subsequent order (made on 21 December 1983) suspended. A probation order was made on the latter date, the period being two years. During that period the respondent left the Federal Republic and he gave evidence before the magistrate that he did so with the consent of his probation officer. However, on 30 May 1986, the Local Court at Ludwigsburg made an order revoking the suspension of sentence on the basis of failure to obtain the consent of the respondent's probation officer before changing his place of residence and failure to notify a change of address. The evidence suggested that credit would be given for imprisonment before trial, leaving one year and 79 days to be served.

3. The respondent was brought before the Local Court in this State in September 1988, under a warrant issued pursuant to the Extradition (Foreign States) Act 1966. An application for extradition followed and, as we have mentioned, succeeded; on 11 May 1989, the learned magistrate ordered that the respondent be committed to prison to await surrender, pursuant to s.19(9) of the Extradition Act 1988 ("the Act").

4. The learned primary judge dealt with a number of points in his reasons for judgment but, when the matter was called on in this Court, we were informed in effect by counsel for the appellant that, subject to examination of certain original exhibits, it was not thought that the primary judge's decision could be attacked successfully, because of lack of compliance with s.19(7) of the Act. The relevant exhibits were thereafter examined and counsel for the appellant confirmed the attitude he had initially taken. That is, it was in substance admitted that the requirements of s.19(7) were not complied with at the hearing before the magistrate. Nevertheless, counsel for the appellant invited the Court to hear argument on what might be described as a more substantial point in the case, namely whether it appeared from the material before the magistrate that "the whole or a part of a sentence imposed on" the respondent "as a consequence of the conviction remains to be served", within the meaning of s.6(a)(ii)(B) of the Act.

5. It is convenient to set out our views on the s.19(7) point.

6. Exhibit 3 was tendered to establish matters mentioned in s.19(3) of the Act, namely the conviction, the sentence imposed, the extent to which it had not been carried out, a description of and the penalty applicable in respect of the offence and the conduct constituting the offence: see paras.(b) and (c) of s.19(3) of the Act. The exhibit consists of some material in the German and some in the English language, and speaking generally, the English material is a translation of the German. However, the last sheet of the exhibit headed "Bescheinigung", which has two seals upon it and appears to be intended to be an authentication of what precedes it, is not translated.

7. Section 19(2)(a) has the effect that the respondent was only eligible for surrender in relation to an extradition offence where:

"... the supporting documents in relation to the
offence have been produced to the magistrate".

The expression "supporting documents" is defined by s.19(3), referred to above, in such a way as to include, in the instant case, documents in Exhibit 3. Under s.19(6), subject to an irrelevant exception -

"... any document that is duly authenticated is
admissible in the proceedings."

8. It was not suggested that Exhibit 3 was admissible otherwise than under the terms of s.19(6). That is, unless Exhibit 3 was "duly authenticated" within the meaning of s.19, it was not admissible, with the result that the necessary "supporting documents" were not properly before the magistrate.

9. The last sheet of Exhibit 3 to which we have referred was relied on successfully before the magistrate as constituting sufficient compliance with s.19(7)(b). The sub-section reads in part as follows:

"A document that is sought by or on behalf of an
extradition country to be admitted in the
proceedings is duly authenticated for the purposes
of this section if:
...
(b) it purports to be authenticated by the oath or
affirmation of a witness or to be sealed with
an official or public seal:
(i) in any case - of the extradition
country or of a Minister, Department
of State or Department or officer of
the Government, of the extradition
country; or ..."

10. It will be noted that the sub-section permits authentication to be achieved in either of two ways: firstly, by the purported oath or affirmation of a witness, or, secondly, by purported sealing with an official or public seal. The magistrate expressed herself to be satisfied that the documents marked as Exhibit 3 complied with s.19(7) of the Act. Her reasons, as recorded, read as follows:

"I am satisfied that the documents marked as Exhibit
'3' are to be treated as one document, bound up
under seal, together with the English Translation,
the totality of the document assigned (sic) by the
Judge and sealed with official seal in accordance
with S.19.7 and are therefore duly authenticated."

11. The primary judge, on the other hand, regarded Exhibit 3 as not having been duly authenticated. He pointed out that there was no translation of the last page and said:

"It may be that this last sheet was intended to
authenticate the whole bundle, possibly including
the English translations, but this is not apparent
to people who cannot read German."

His Honour went on to say that -

"... without some knowledge of the German language,
it is impossible to determine whether that
certificate complies with s.19(7)."

His Honour's reference to "that certificate" was obviously intended to be to the material on the untranslated last page.

12. The learned primary judge added that Australian courts act only on the basis of evidence in the English language and that Exhibit 3 should have been rejected.

13. His Honour's judgment was the subject of some observations in Zoeller v. Federal Republic of Germany and Ors (Full Court, unreported, 20 December 1989). In their Honours' reasons, the view is expressed that a document authenticated under s.19(7) "can only be acted upon if it is understood". The Court held that:

"For a tribunal to act upon the document, applying
its own understanding of the foreign language
uncommunicated to the parties will involve an abuse
of natural justice."

14. What the Full Court had to say about the necessity for translation of documents to be placed before the Court did not have to do with material such as that with which we are concerned - the last page of Exhibit 3; it was directed rather to what might be called the substantive, not the authenticating, material. Further, it was obiter.

15. However, it appears to us, with respect, that this principle necessarily applies to the last page of Exhibit 3. A person familiar with the German language might well have understood, as the learned magistrate apparently did, that the authentication was intended to be constituted only by one of the seals and that the rest of the writing on the page and the other seal were irrelevant to the question of authentication. However, we are of opinion that, wholly untranslated as it was, the last page was simply inadmissible and that the magistrate was in error in holding that one of the seals on that page satisfied s.19(7)(b) partially quoted above and holding, by implication, that the rest of it was irrelevant. It was not a proper course, in our view, to speculate as to what was the effect of any of the material on the last page of Exhibit 3. We have, in arriving at this conclusion, followed and somewhat extended the statement of principle of the Court in Zoeller's case; we act on the view that material placed before the Court to satisfy the requirements of s.19(7)(b) should not be received, if written in a language other than English, unless its English meaning is proved or admitted.

16. The appeal must therefore be dismissed and indeed we do not understand that such an order is now opposed. We should add, however, that we have given consideration to the submission made by counsel for the appellant that, in view of the possibility that a further attempt may be made to extradite the respondent, we should deal with the other point alluded to above, namely whether within the meaning of s.6(a)(ii)(B) the whole or part of the sentence imposed on the respondent remains to be served. The argument foreshadowed was that Wilcox J. was wrong in going behind the order of the Local Court of the Federal Republic, made on 30 May 1986. But if a further attempt to extradite the respondent is made, it would seem to us likely that the magistrate would not simply be left to guess as to whether or not the Court's orders made in Ludwigsburg truly had the effect, under German law, that the sentence remained to be served. At the hearing before Wilcox J., there was apparently some discussion as to whether German law enabled a probation order to be revoked after expiration or enabled a person to be imprisoned after the end of his or her sentence (p 18 of reasons). It seems to us undesirable that this Court should enter upon such considerations, particularly when any statements made on the point must necessarily be obiter.

17. As we have said, the appeal must be dismissed and with costs.