Re Terrence Andre Stanton and Sarah Clarke v the Director of Public Prosecutions and the Republic of the Phillippines [1993] FCA 3 (12 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: TERRENCE ANDRE STANTON and SARAH CLARKE
And: THE DIRECTOR OF PUBLIC PROSECUTIONS and THE REPUBLIC OF THE PHILLIPPINES
No. Q G121 of 1992
FED No. 20
Number of pages - 28
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Extradition - review of magistrate's order - whether an extradition objection involves consideration of quality of evidence in material supporting extradition request - whether an extradition objection - discussion of extradition objection based on political opinions - Attorney-General's discretion - sufficiency of evidence with regard to 'conduct constituting the offence'.

Extradition - relationship of Extradition Act to Extradition (Republic of the Philippines) Regulations - whether inconsistency between Act and treaty - extradition objection distinguished from grant of extradition.

Extradition Act 1988 ss. 5, 7, 12, 15, 16, 19, 21, 22

Unkel v. Director of Public Prosecutions (1990) 95 ALR 44

Zoeller v. Federal Republic of Germany (1989) 91 ALR 341

HEARING

BRISBANE
12:1:1993

Counsel for the applicants: Mr Sumner-Potts
instructed by: McIntyre Stower and Bovey

Counsel for the respondents: Miss S. Cornack with Mr G. Davey

instructed by: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The application to review is dismissed.

2. The order of Mr Fitzsimon S.M. of 14 August 1992 is confirmed.

3. There be no order as to costs.

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

DECISION

SPENDER J. This is an application pursuant to s. 21 of the Extradition Act 1988 ('the Act') for a review of an order made by Mr Robert Fitzsimon, Stipendiary Magistrate of the Cairns Magistrates Court, on 14 August 1992, who ordered pursuant to subsection 19(9) of the Act that Terrence Andrew Stanton and Sarah Cabibijan Clarke (also known as Stanton) be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order by the Attorney-General under s. 22(5) of the Act.

2. The magistrate said, without giving reasons:

" Terrence Andrew Stanton has not satisfied me that there are
substantial grounds for believing that there is an
extradition objection in relation to the offence alleged.
Sara Cabibijan Clarke (also known as Stanton) has not
satisfied me that there are substantial grounds for
believing that there is an extradition objection in relation
to the alleged offence. "

3. The second applicant is now the wife of the first applicant, having married after the making of the orders by the magistrate of which review is sought.

4. The Republic of the Philippines ('the Philippines') is an "extradition country" within the meaning of s. 5 of the Act, having been so declared by the Extradition (Republic of the Philippines) Regulations 1991, which regulations commenced on 18 January 1991. The law relevant to this review is contained not only in the Act, but also in the regulations, a schedule to which is a Treaty on Extradition between Australia and the Philippines.

5. Regulation 5 of those regulations provides:

" The Act applies in relation to the Republic of the
Philippines subject to the treaty on Extradition Between
Australia and the Republic of the Philippines done at Manila
on 7 March 1988 (being the treaty a copy of which is set out
in the Schedule). "

6. Unlike the treaty between Australia and the United States of America considered by Pincus J. in Unkel v. Director of Public Prosecutions (1990) 95 ALR 44, there is no limitation, condition, qualification or exception in the treaty between Australia and the Philippines incorporating a "sufficient evidence" test or "a prima facie evidence" test as a necessary prerequisite to the application of the Act: cf. subsections (1), (4) and (5) of s. 11 of the Act.

7. The Philippines in an extradition request dated 15 October 1991 asked:

" for the extradition to the Philippines of Terrence (Terry)
Andre Stanton, an Australian national and his wife Sarah
Cabibihan (Cabibijan), a Filipino national, both of whom may
be found within the territorial jurisdiction of Australia.
The Stanton spouses stand charged and are wanted for
prosecution before Branch 3, Regional Trial Court of Guiuan,
Eastern Samar, 8th Judicial Region for the murder of one
John Thomas Hulmes, a citizen of Australia. "

8. The extradition request was accompanied by an authenticated copy of a Warrant of Arrest issued by Judge Paterno T. Alvarez, of the Regional Trial Court of Guiuan, Eastern Samar, 8th Judicial Region, Branch 3, for the arrest of the Stantons. The warrant is dated 20 February 1991.

9. The Information which is attached to the extradition request alleges that on or about 10 June, 1990 at about between the hour of 2:00 o'clock and 3:00 o'clock in the afternoon at a beach in Eastern Samar, the Stantons:

" ...with intent to kill, and with treachery and evident
premiditation (sic), did, then and there, wilfully,
unlawfully and feloniously, attack, assault, hacked and
stabbed one JOHN THOMAS HOLMES (sic), another Australian
citizen with a bolo which they conveniently provided
themselves for the purpose, thereby inflicting upon the
latter, injuries that resulted in the amputation of the left
forearm of victim and other wounds which could have caused
shock from hemorrhage and eventually caused his death. "

The information is dated 19 February 1991.
10. There is a Certification, also dated 19 February 1991, by Prosecutor Vicente C. Catudio in the following terms:

" I HEREBY CERTIFY, that an ex-parte preliminary investigation
has been conducted in this case, that I have personally
examined the complainant and his witnesses and on the basis
of the sworn statements and other evidence submitted before
me, there is reasonable ground to believe that the offense
charged has been committed and that the accused is probably
guilty thereof. "

11. The material suggests that the body of John Hulmes was found on 13 June 1990 on a beach at East Samar. The body was exhumed from the beach some five months later on 6 November 1990. The exhumation was at the request of the Australian Embassy. The body had been buried without a coffin on the beach, about twenty feet from the shoreline, four feet below the ground. The body was examined by a medical practitioner on 7 November 1990. The exhumation report noted "a complete, clean-cut fracture, distal third, radius, left, suggestive of application of antemortem violence" and stating "he could have died from the concomitant and/or internal effect(s) of the complete, clean-cut fracture of the radius".

12. Article 248 of the revised Penal Code of the Philippines creates the offence of murder. The death penalty has been abolished in the Philippines.

13. The remains of Mr Hulmes were ordered to Australia and, importantly, a report by Director C.J. Griffiths of the Westmead Hospital Dental Clinical School dated 20 February 1991 to the Coroner at Glebe in New South Wales, refers to the finding, after radiography, of a bullet in the base of the skull.

14. On 21 February 1992 and again on 3 April 1992 documents were certified by the Consul at the Australian Embassy in Manila. On 18 March 1992, Sarah Clarke became an Australian citizen.

15. On 25 May 1992 in respect of each applicant the Attorney-General for the Commonwealth signed a notice under s. 16(1) of the Act. The Stantons had been arrested on provisional warrant on 14 April 1992. The s. 16(1) notices recited that in the opinion of the Attorney-General each of the applicants is an extraditable person for the purposes of the Act in relation to the Philippines; that the conduct constituting the offence of murder if it had occurred in Australia would have constituted an extradition offence in relation to Australia and that the Attorney-General is not of the opinion that there is an extradition objection in relation to the extradition offence for which the extradition is sought, namely, murder.

16. The proceedings before Mr Fitzsimon S.M. were held on 19 June, 15 July, 7 August and 13 August 1992. The grounds of the application for a review of the order of the magistrate are:

" (a) That the Magistrate was in error in determining that
the applicants were eligible for extradition to the
Philippines;
(b) That the Magistrate misdirected himself as to the true
meaning of the Extradition Act 1988 and the
Extradition (Republic of the Philippines) Regulations
1991;
(c) That the Magistrate was in error in failing to be
satisfied that there are substantial grounds for
believing that there is an extradition objection in
relation to the offence alleged. "

17. On the application for review, the applicants through their counsel acknowledged that ground (c) was simply the particularisation of ground (a).

18. It is necessary to refer to the statutory provisions in some detail.

19. Section 5 of the Act defines "extradition country" and "extradition offence", and it is common ground that the Philippines is an extradition country and murder is an extradition offence.

20. Section 12 of the Act provides for the issuing of a provisional warrant on an application made on behalf of an extradition country, where a magistrate is satisfied, on the basis of information given by an affidavit, that a person is an extraditable person in relation to an extradition country.

21. By s. 15, a person arrested under a provisional warrant is required to be brought as soon as practicable before a magistrate in a State or Territory in which the person is arrested and such person may be remanded in custody or on bail.

22. Section 16(1) of the Act provides:

" Where the Attorney-General receives an extradition request
from an extradition country in relation to a person, the
Attorney-General may, in his or her discretion, by notice in
writing in the statutory form expressed to be directed to
any magistrate, state that the request has been received. "

23. Section 19 is of particular importance to the present review. It relevantly provides:

" (1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under
subsection 16(1) in relation to the person;
(c) an application is made to a magistrate by or on behalf
of the person or the extradition country concerned for
proceedings to be conducted in relation to the person
under this section; and
(d) the magistrate considers that the person and the
extradition country have had reasonable time in which
to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine
whether the person is eligible for surrender in relation to
the extradition offence or extradition offences for which
surrender of the person is sought by the extradition
country.
(2) For the purposes of subsection (1), the person is only
eligible for surrender in relation to an extradition offence
for which surrender of the person is sought by the
extradition country if:
(a) the supporting documents in relation to the
offence have been produced to the magistrate;
...
(c) the magistrate is satisfied that, if the conduct
of the person constituting the offence in
relation to the extradition country, or
equivalent conduct, had taken place in the part
of Australia where the proceedings are being
conducted and at the time at which the
extradition request in relation to the person
was received, that conduct or that equivalent
conduct would have constituted an extradition
offence in relation to that part of Australia;
and
(d) the person does not satisfy the magistrate that
there are substantial grounds for believing that
there is an extradition objection in relation to
the offence.
(3) In paragraph (2)(a), 'supporting documents', in
relation to an extradition offence, means:
(a) if the offence is an offence of which the person
is accused - a duly authenticated warrant issued
by the extradition country for the arrest of the
person for the offence, or a duly authenticated
copy of such a warrant;
...
(c) in any case:
(i) a duly authenticated statement in writing
setting out a description of, and the
penalty applicable in respect of, the
offence; and
(ii) a duly authenticated statement in writing
setting out the
conduct constituting the offence.
...
(5) In the proceedings, the person to whom the proceedings
relate is not entitled to adduce, and the magistrate is not
entitled to receive, evidence to contradict an allegation
that the person has engaged in conduct constituting an
extradition offence for which the surrender of the person is
sought.
...
(7) 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:
(a) it purports to be signed or certified by a
judge, magistrate or officer in or of the
extradition country; and
(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
...
(9) Where, in the proceedings, the magistrate determines
that the person is eligible for surrender to the extradition
country in relation to the extradition offence or one or
more of the extradition offences, the magistrate shall:
(a) by warrant in the statutory form, order that the
person be committed to prison to await surrender
under a surrender warrant or temporary surrender
warrant or release pursuant to an order under
subsection 22(5);
(b) inform the person that he or she may, within 15
days after the day on which the order in the
warrant is made, seek a review of the order
under subsection 21(1); and
(c) record in writing the extradition offence or
extradition offences in relation to which the
magistrate has determined that the person is
eligible for surrender and make a copy of the
record available to the person and the
Attorney-General. "

24. Section 21 dealing with review relevantly provides:

" (1) Where a magistrate of a State or Territory makes an
order under subsection 19(9) or (10) in relation to a person
whose surrender is sought by an extradition country:
(a) in the case of an order under subsection 19(9) - the
person...
may, within 15 days after the day on which the magistrate
makes the order, apply to the Federal Court, or to the
Supreme Court of the State or Territory, for a review of the
order.
(2) The Court may, by order:
(a) confirm the order of the magistrate; or
(b) quash the order and direct a magistrate to:
(i) in the case of an order under subsection 19(9) -
order the release of the person
...
(3) The person or the extradition country, whether or not
the person or country was the applicant for review under
subsection (1), may appeal to the Full Court of the Federal
Court from the order of the Federal Court or the Supreme
Court.
(4) The person or the extradition country is not entitled
to appeal to the Full Court more than 15 days after the day
on which the order of the Federal Court or the Supreme Court
is made.
...
(6) Where the person or the extradition country:
(a) applies under subsection (1) for a review of an
order;
...
the following provisions have effect:
(d) the court to which the application or appeal is
made shall have regard only to the material that
was before the magistrate;
...
(g) if the court to which the application or appeal
is made determines that the person is eligible
for surrender, within the meaning of subsection
19(2), in relation to an extradition offence or
extradition offences - the court shall include
in its judgment on the review or appeal a
statement to that effect specifying the offence
or offences. "

25. Section 22 provides that the surrender determination is to be made by the Attorney-General. Section 22(2) provides:

" The Attorney-General shall, as soon as is reasonably
practicable, having regard to the circumstances, after a
person becomes an eligible person, determine whether the
person is to be surrendered in relation to a qualifying
extradition offence or qualifying extradition offences. "

Subsection (3) provides that the eligible person is only to be surrendered in relation to a qualifying extradition offence if, amongst other things, the Attorney-General is satisfied that there is no extradition objection in relation to the offence and the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence: see paras. 22(3)(a) and 22(3)(f).

26. The meaning of "extradition objection" is to be found in s. 7 of the Act, which provides:

" For the purposes of this Act, there is an extradition
objection in relation to an extradition offence for which
the surrender of a person is sought by an extradition
country if:
(a) the extradition offence is a political offence in
relation to the extradition country;
(b) the surrender of the person, in so far as it purports
to be sought for the extradition offence, is actually
sought for the purpose of prosecuting or punishing the
person on account of his or her race, religion,
nationality or political opinions or for a political
offence in relation to the extradition country;
(c) on surrender to the extradition country in respect of
the extradition offence, the person may be prejudiced
at his or her trial, or punished, detained or
restricted in his or her personal liberty, by reason
of his or her race, religion, nationality or political
opinions;
... "

27. It was submitted by Mr Sumner-Potts of counsel who appeared on behalf of the applicants that in considering the question of whether there is an extradition objection pursuant to s. 7(c), the Court is entitled to look at the quality of the evidence referred to in the material in support of the extradition request. This submission, in my opinion, is unfounded, the extradition objection contemplated by that paragraph being one of prejudice which exists "by reason of" a person's "race, religion, nationality or political opinions".

28. Under the regime established by the present Act and the Extradition (Republic of the Philippines) Regulations 1991, the question of sufficiency of evidence or the quality of it is a matter which may be relevant to the exercise by the Attorney-General of the discretion conferred by him under s. 22 of the Act, but it is not a matter relevant to the exercise by a magistrate of the obligations imposed on him by s. 19 of the Act, nor is it relevant to a review by the Federal Court pursuant to s. 21 of the Act, except that it is necessary that "a duly authenticated statement in writing setting out the conduct constituting the offence" be produced to the magistrate (ss. 19(2)(a) and 19(3)(c)(ii)), and that the magistrate be satisfied that "if the conduct of the person constituting the offence in relation to the extradition country,...had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia;" (s. 19(2)(c)). Section 19(5) prohibits the receipt of evidence to contradict the allegation that the person has engaged in conduct constituting the extradition offence.

29. As the Treaty on Extradition between Australia and the Republic of the Philippines makes plain, the obligation to extradite is an obligation placed on the requested country and the question of surrender is one which, pursuant to s. 22(2) of the Act rests on the Attorney-General. Once enquiry establishes the existence of the minimum requirements of the Act, the question of surrender becomes a political one for the Attorney-General.

30. In that context reference may be made to certain clauses in Article 4 of the treaty, particularly clause 2(a).

31. Article 4, clause 1(b) provides:

" Extradition shall not be granted in any of the following
circumstances:
...
(b) if there are substantial grounds for believing that a
request for extradition for an ordinary criminal
offence has been made for the purpose of prosecuting
or punishing a person on account of that person's
race, religion, nationality or political belief or
that that person's position may be prejudiced for any
of those reasons;
..."

Clause 2 provides, inter alia:

" Extradition may be refused in any of the following
circumstances:
(a) if the person whose extradition is requested is a
national of the Requested State. Where the Requested
State refuses to extradite a national of that State it
shall, if the other State so requests and the laws of
the Requested State allow, submit the case to the
competent authorities in order that proceedings for
the prosecution of the person in respect of all or any
of the offences for which extradition has been
requested may be taken if that is considered
appropriate. Nationality shall be determined at the
time of the commission of the offence for which
extradition is requested;
...
(e) if the Requested State, while also taking into account
the nature of the offence and the interests of the
Requesting State, considers that, in the circumstances
of the case, including the age, health or other
personal circumstances of the person whose extradition
is requested, the extradition of that person would be
unjust, oppressive, incompatible with humanitarian
considerations or too severe a punishment.
... "

32. A person is eligible for surrender if and only if the requirements of s. 19(2) are made out.

33. So far as may be derived from the somewhat diffuse submissions on behalf of the applicants, it was submitted the magistrate should have been satisfied that each of them had discharged the onus of satisfying him that there was an extradition objection in relation to each of them; namely, that each of them may be prejudiced at his or her trial, or punished detained or restricted in his or her personal liberty by reason of his/her nationality or his/her political opinion.

34. So far as an extradition objection based on nationality is concerned, the submission on behalf of both applicants can shortly be summarised as follows: Australians are known to own the majority of the bars in the Philippines and recruit bar girls from the poorer areas of the Philippines which include Eastern Samar; further, both applicants were seen in the company of a person who was an owner of a bar in Manila. Both applicants are Australians by nationality, and the magistrate should have concluded that they each would therefore suffer prejudice at their trial by reason of that nationality.

35. The male applicant is the holder of an Australian Passport issued on 28 September 1988. Contrary to what one would expect on an application of this kind, the status of Sarah Stanton on the material before the magistrate is not clear. The extradition request of 15 October 1991 refers to the female applicant as a Filippino national and an affidavit dated 14 February 1992 deposes to her holding a Philippine Passport issued on 4 October 1988. She was born in Eastern Samar in the Philippines, she had married an Australian, one Clarke, and had lived in Western Australia. She became an Australian citizen in 1992 after the date of the extradition request.

36. Accepting for present purposes that her nationality is Australian, I am not satisfied that the magistrate was in any way in error in not being satisfied that either applicant would suffer prejudice at their trial by virtue of their nationality. The trial in Eastern Samar is by judge alone. Accepting that there is a general attitude of dislike of Australians in Eastern Samar for the reasons advanced, in my opinion it is not a necessary conclusion that either applicant might be prejudiced at their respective trials by reason of their nationality. In my view, the evidence before the magistrate did not require him to be satisfied that either applicant might be prejudiced at his/her trial by reason of that person's nationality.

37. As to an extradition objection based on the applicants' political opinions, it was submitted that the female applicant has relatives who are connected with an insurgent political group, the New People's Army, and the magistrate therefore ought to have been satisfied that she may be prejudiced by reason of her own political opinions as perceived by the Philippines authorities. It was submitted that so far as any prejudice to Mr Stanton by reason of his political opinions is concerned, that had to be read in an expansive way to include prejudice he may suffer by his association with his wife who, in turn, has to be assessed in the context of her relationship with her relatives who had connections with the New People's Army.

38. The extradition objection referred to in paragraph 7(c) of the Act requires prejudice (or the other ill effects referred to in the paragraph) by reason of the political opinions of the person for which the surrender is sought by the extradition country. There was no evidence before the magistrate to establish what the political opinions of either applicant were, and a fortiori there is no basis on which it can be sensibly submitted that the magistrate was in error in not being satisfied that there were substantial grounds that either applicant would prejudiced at his/her trial or punished, detained, or restricted in his/her personal liberty by reason of his/her political opinions.

39. It is not an extradition objection that a person might suffer prejudice because that person has a connexion with another person who holds certain political opinions, still less is it an extradition objection that a person might suffer prejudice because that person has a connexion with another person who in turn has a connexion with a further person who holds certain political opinions.

40. The valiant attempt to base an extradition objection on political opinions is based on an impermissible extension of the plain words of s. 7(c).

41. I am therefore of the opinion that no error has been demonstrated in the magistrate concluding that he was not satisfied that there were substantial grounds for believing that an extradition objection existed in relation to the offence.

42. As to ground (b) of the application for review, the contention by the applicants was that there was an inconsistency between the Act and the treaty.

43. Section 7 of the Act establishes that there is an extradition objection if on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his/her trial or punished or detained or restricted in his/her personal liberty by reason of his/her race, religion, nationality or political opinions: s. 7(c). Regulation 5 provides that the Act applies in relation to the Republic of the Philippines subject to the treaty, which is set out in the schedule to the regulations. Article 4 clause 1(b) of that treaty provides:

" Extradition shall not be granted in any of the following
circumstances:
...
if there are substantial grounds for believing that a
request for extradition for an ordinary criminal offence has
been made for the purpose of prosecuting or punishing a
person on account of that person's race, religion,
nationality or political belief or that that person's
position may be prejudiced for any of those reasons: "

44. It was said that there was an inconsistency between the requirement of the Act that an extradition objection existed if a person might be prejudiced at his/her trial or punished, detained or restricted in his/her personal liberty by reason of the matters set out in s. 7(c) and the provision of the treaty that extradition is not to be granted if a person's "position" may be prejudiced on account of race, religion, nationality or political belief. It was submitted that the difference in terminology promoted an inconsistency.

45. In my opinion, there is no inconsistency in these provisions. Section 7 is concerned with the existence or otherwise of an extradition objection; Cl. 1(b) of Article 4 of the treaty imposes a particular exception to the grant of extradition. The question of an extradition objection is a matter to be considered in the first instance by the magistrate. The question of the grant of extradition is one to be considered by the Attorney-General. Even if there be a difference in the width of the circumstances of application contemplated by the Act on the one hand and by the treaty on the other, a matter which I do not accept, there is no inconsistency. The magistrate was required to consider the existence or otherwise of an extradition objection under s. 7 of the Act, which is what he in fact did.

46. The magistrate was satisfied that all necessary supporting documents in relation to the offence had been produced within the terms of paragraph 19(2)(a). There was no submission on behalf of the applicants before me to the contrary.

47. The material before the magistrate included a duly authenticated copy of the warrant issued by the Philippines for the arrest of the applicants for murder. Duly authenticated written statements describing the offence of murder and the corresponding penalty also appeared both in extract form in the original bundle of seventeen documents given by the Embassy of the Philippines to the Australian Department of Foreign Affairs and Trade on 15 October 1991 and also in the two affidavits of Mr Aurelio Trampe of 17 July 1991 and 14 February 1992 respectively. Finally, several duly authenticated statements in writing making reference to the conduct said to constitute the offence were also present: in the Information filed on 19 February 1991 by the Philippine authorities against the applicants, in the Certification Report of the same date, Agent Tonelete's progress report of 17 January 1991, in the National Bureau of Investigation (N.B.I.) report of 28 February 1991 and in the two affidavits of Mr Aurelio Trampe.

48. The magistrate was satisfied, within the terms of paragraph 19(2)(c), that if the conduct of the applicants constituting the offence in relation to the Philippines, or equivalent conduct, had taken place in Australia at the time the extradition request was received, that conduct would have constituted an extradition offence in relation to Australia.

49. An "extradition offence in relation to Australia" is defined by s. 5 as an offence against a law of Australia or part of Australia which makes the offender liable to at least one year's imprisonment.

50. By subsection 10(2), the reference to "conduct of the person constituting the offence" in paragraph 19(2)(i) is a reference to the acts by virtue of which the offence is alleged to have been committed. As Pincus J. explained in Unkel v. D.P.P. (1990) 95 ALR 44 at p 50, the magistrate must consider whether the acts alleged, if they had taken place in Australia, would constitute an Australian offence carrying at least twelve months' imprisonment. The "acts alleged" are the "conduct constituting the offence" set out in the s. 19(3)(c)(ii) statements: Zoeller v. Federal Republic of Germany (1989) 91 ALR 341, at p 357. If the conduct alleged of the applicants by the Philippine authorities in the s. 19(3)(c)(ii) statements referred to earlier had occurred in Australia, the applicants would have been guilty of an extraditable offence in relation to Australia, namely, murder. In summary form, those statements assert that the conduct constituting the offence consisted in the applicants, with premeditation and in concert, attacking Hulmes with a bolo with such severity that his left arm was severed, and from which he died.

51. As the elements of subsection 19(2) were therefore satisfied, the magistrate could only conclude that both the applicants were eligible to surrender in relation to the extradition offence of murder. Accordingly, the magistrate was obliged to make an order by warrant under paragraph 19(9)(a) of the Act that the applicants be committed to prison to await surrender or an order of release by the Attorney-General under subsection 22(5). I therefore confirm the magistrate's orders pursuant to paragraph 21(2)(a) and dismiss the application to review.

52. This conclusion is not the end of the matter. In determining whether the applicants are to be surrendered, the Attorney-General has a discretion under paragraph 22(3)(f). The discretionary nature of the surrender determination is also reflected in Article 4, clause 2 of the Treaty on Extradition between Australia and the Republic of the Philippines.

53. In exercising his discretion under paragraph 22(3)(f), the Attorney-General will no doubt give attention to the circumstances of the case and the nature of the allegations against the applicants. It is at this stage of the process that the qualitative merit of the request for extradition has to be assessed, and the responsibility for that assessment under the Act is that of the Attorney-General.

54. In this regard, a number of disturbing features should be noted about the evidence in this case. These features raise serious doubts about the quality of the police investigation conducted in the Philippines and, at worst, the genuineness of the charges laid against the applicants.

55. The case against the applicants rests solely on circumstantial evidence: in particular, evidence of opportunity. Statements were taken from a number of witnesses in Eastern Samar who gave accounts of their sightings of the applicants at various times on 10 June 1990. These statements indicate that John Hulmes remained with the applicants until the trio reached a point somewhere in the vicinity of Jagnaya around 3 p.m. that afternoon, but that the applicants were alone on their return journey to Guiuan, which they reached at about 4 p.m. These accounts are consistent with the case put by the Philippine authorities: that between 2 p.m. and 3 p.m., the applicants murdered Hulmes on the isolated beach at Jagnaya before returning to Guiuan. By contrast, although some conflict in the two accounts given by Mrs Stanton emerged at the hearing, both the applicants have at all times claimed that Hulmes accompanied them back to Guiuan that afternoon.

56. The only other evidence relied on to support the charges appears in the statement of German Cabibijan, Mrs Stanton's father, who said that he found some blood stains on the roof, engine block and seats of his vehicle after it was returned by the applicants on 10 June 1990. However, no laboratory tests were ever conducted on these stains. In the N.B.I. report of 28 February 1991, reference is made to a sworn statement by Police Corporal Francisco Acosta of the Salcedo Police Station in Eastern Samar. Acosta allegedly said that there were indeed blood stains found in the engine block and on the seats of the vehicle when it was impounded by the police. Acosta's statement did not form part of the supporting material before the magistrate. The N.B.I. report also states that on the date the body was found (13 January 199 0) the police took pictures of the vehicle. These pictures do not appear in the supporting material. By contrast, in his progress report of 17 January 1991, Agent Tonelete of the N.B.I. said laboratory tests were not carried out because the "I.N.P." were only able to view the vehicle after it had already been cleaned. Thus, even assuming the stains were present on the vehicle, it has not been established that they were the victim's blood, or even blood at all.

57. A worrying feature about this case is the Philippine authorities' assessment of the cause of death. The information laid against the applicants alleges that they murdered Hulmes by attacking, assaulting, hacking and stabbing him with a bolo. Consistently with this, the Exhumation Report of Dr Floro Camenforte, Medico-Legal Officer with the N.B.I., identifies the probable cause of death as being the "concomitant and/or internal effect(s) of the complete, clean-cut fracture of the radius" (i.e. shock from the severance of the left forearm). However, it appears from the report of Dr Griffiths of the Westmead Hospital Dental Clinical School that when the victim's body was brought back to Australia for the purposes of identification, a bullet was found in the base of the skull. This is the only reference in the whole of the supporting material to what now appears to be the fact that Hulmes was killed by shooting. No further information is provided concerning the type of bullet or even its current location.

58. One possible reason for this lapse lies in the unusual manner in which the victim's body was dealt with by the police. Shortly after its discovery on the beach at Jagnaya on 13 June 1990, the body was buried without a coffin on the beach approximately twenty feet from the shoreline. It was not until its exhumation on 6 November 1990 at the request of the Australian Embassy that an autopsy was performed. By then, according to Dr Camenforte's autopsy report, the body had been transformed into a skeleton with minimal soft tissue. No reason is given for the five months delay involved.

59. According to the N.B.I. report of 28 February 1991, the Salcedo police, having found the case too complicated to handle, called in the N.B.I. on 26 June 1990. A similar request for N.B.I. assistance was made by the mayor of Salcedo. However, four of the eight statements taken from residents of Eastern Samar seem to have been taken prior to the N.B.I.'s involvement. Two sketches of the crime scene which appear in the supporting material are referred to in the N.B.I.'s report, but the date of their creation is uncertain.

60. There seems no doubt that Hulmes was murdered by somebody. There are, however, no witnesses to the crime, no confessional statements implicating the applicants, and a complete lack of supporting forensic evidence. The limited nature of the circumstantial evidence is compounded by the improbable circumstances of the alleged murder. Many important questions remained unanswered. Why, if the killing was premeditated as alleged, would the applicants make no attempt to conceal the victim's body or his personal effects (cigarette lighter, cigarettes, shoes, watch, sunglasses and T-shirt) which were found strewn about the surrounding area? Why would the applicants have used a bolo, a traditional Philippine weapon? What type of gun was used in the shooting? Have any of the murder weapons been located? Were the applicants seen with any such weapons in their possession? Why would the applicants not only shoot Hulmes (execution-style) but also savagely attack him with a bolo? What possible motive exists for the murder? The N.B.I. seem to have been prepared to leave the determination of motive until after the applicants' arrest in Australia. They suggested several possible motives: for example, the desire to obtain insurance moneys (seemingly based on a suspicion arising from the death of Mrs Stanton's former husband in circumstances in which she was the beneficiary under her husband's substantial life insurance policy), business rivalry or a double-cross, or a love triangle. Each of these is equally unsupported by the evidence, and no other motive is readily apparent.

61. So far as one can presently assess, the general tone of the investigation in the Philippines does little to allay the fears that arise. The N.B.I. report is titled "The Case of the Deadly Australian Couple" and exhibits a disturbing degree of sensationalism and prejudgment. Objective analysis is also absent in other passages in the report. For example, paragraph four of the report reads:

" It was obvious that the real purpose of Subjects was not
purely sightseeing. They were actually looking for a
place wherein they could carry out their evil design to
kill JOHN THOMAS HOLMES. The poor man was thinking all
along that the couple were just trying to entertain him."

62. The approach to the investigation revealed in the "supporting documents" raises the serious possibility of fabrication of witnesses' statements. There were suggestions at the hearing before the magistrate that some of the witnesses in Eastern Samar had been interfered with or had disappeared. Some of the statements do not seem altogether convincing. Why, for example, would German Cabibijan (Mrs Stanton's father) volunteer to the authorities the information about the blood stains on the vehicle, apparently as an afterthought, in his affidavit dated 25 June 1990?

63. Another concern lies in the authorities' apparent failure to investigate any scenario other than the guilt of the applicants. Evidence given before the magistrate by Dr Brian Fegan, a senior lecturer in anthropology and comparative sociology at Macquarie University who specialises in activities in the Philippines, raised the possibility of the N.P.A., the Army, or paramilitary or vigilante groups (affiliated with the Army or just generally counter-insurgent in nature) being responsible for the killing. The activities of these groups are well documented in Amnesty International's 1988 Report, "Philippines: Unlawful Killings by Military and Paramilitary Forces" and in journals such as the Far Eastern Economic Review, both of which were in evidence at the hearing.

64. Any alternative explanation suffers some difficulties, but no more so than the scenario alleged in the supporting documents. The documented accounts of past murders (albeit usually of Filipinos suspected of involvement with rival groups) reveal that they are almost inevitably marked by stabbing, hacking (which often involves dismemberment) and/or shooting. In particular, it appears that many vigilante groups use bolos and other traditional weapons. The manner of killing in this case is therefore consistent with that adopted by such groups, and their involvement is by no means an irrelevant possibility.

65. In short, it is apparent there are serious questions about the "conduct constituting the offence" revealed in the supporting documents, and the report of the National Bureau of Investigation of 28 February 1991 is wholly lacking in conviction.

66. In my respectful view, the particular circumstances of this matter indicate that the question of surrender under s. 22(3)(f) of the Act calls for a most careful scrutiny by the Attorney-General.

67. For the reasons expressed earlier, the application to review the orders of Mr Fitzsimon S.M. is dismissed. The Court orders that the orders of the magistrate on 14 August 1992 in respect of Terrence Andre Stanton and Sarah Cabibijan Clarke (also known as Stanton) under s. 19(9) of the Act be confirmed.