Mehl v Federal Republic of Germany [2009] FCA 36 (30 January 2009)

Last Updated: 30 January 2009

FEDERAL COURT OF AUSTRALIA

Mehl v Federal Republic of Germany [2009] FCA 36

EXTRADITION – eligibility for surrender – dual criminality – obtaining money or any financial advantage by deception – whether the conduct or the equivalent conduct of fraudulently acquiring commission payments and other pecuniary profits from mobile phone service providers in the Federal Republic of Germany would be a criminal offence with a maximum sentence of imprisonment for a period of not less than 12 months if committed in New South Wales pursuant to subs 19(2)(c) of the Extradition Act 1988 (Cth)

HELD – dual criminality requirement is satisfied

Criminal Code Act 1995 (Cth) s 475.2(1) 
Extradition Act 1988 (Cth) ss 5, 19, 21
Telecommunications Act 1997 (Cth) ss 16, 87
Crimes Act 1900 (NSW) ss 176A, 178A, 178BA, 179

Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121 cited
Davies v Flackett [1973] RTR 8 cited
Harris v Attorney-General (Cth) (1994) 52 FCR 386 cited
Holt v Hogan (No 2) [1993] FCA 543; (1993) 46 FCR 145 cited
In re Holmes [2005] 1 WLR 1857 cited
Kennison v Daire (1985) 38 SASR 404 cited
Linhart v Elms (1988) 81 ALR 557 cited
R v Baxter [1988] 1 Qd R 537 cited
R v Fischetti (2003) 192 FLR 119 cited
R v Steels (1867) 32 JP 309 cited
Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 cited
United States v Holt [1994] FCA 1115; (1994) 49 FCR 501 cited
Zoeller v Republic of Germany (1989) 23 FCR 282 cited

WALLY MEHL v FEDERAL REPUBLIC OF GERMANY
NSD 566 of 2008

EDMONDS J
30 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 566 of 2008

BETWEEN:

WALLY MEHL Applicant

AND:	FEDERAL REPUBLIC OF GERMANY Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	30 JANUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 566 of 2008

BETWEEN:

WALLY MEHL Applicant

AND:	FEDERAL REPUBLIC OF GERMANY Respondent

JUDGE:	EDMONDS J
DATE:	30 JANUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application, filed on 22 April 2008, pursuant to subs 21(1) of the Extradition Act 1988 (Cth) (‘the Act’) for review of an order, made on 8 April 2008 under subs 19(9) of the Act, determining that the applicant (‘Mr Mehl’) was eligible for surrender to the Federal Republic of Germany. There is no issue that the learned magistrate who made the determination subsequently complied with the requirements of paras (a) – (c) inclusive of subs 19(9).
2. Subsection 21(1) relevantly provides that within 15 days of the magistrate’s determination of eligibility under subs 19(9) of the Act, a person may apply to this Court ‘for a review of the order’. The review is by way of rehearing, rather than the more restricted function the Court exercises when engaging in judicial review in the strict sense: see Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121 per Black CJ at [20] – [31], Jacobson J at [45] – [47] and Rares J at [73] – [90].
3. Subsection 21(2) relevantly provides that the Court may, by order, either confirm the order of the magistrate, or quash the order and direct a magistrate to order the release of the person.
4. Pursuant to subs 21(6)(d), the court to which the application is made shall have regard only to the material that was before the magistrate.

THE PROCEEDINGS BEFORE THE MAGISTRATE

5. As these review proceedings are a rehearing of the proceedings before the magistrate, it is relevant to set out the provisions of the Act relating to those proceedings.
6. Subsection 19(1) of the Act stipulates four conditions precedent or jurisdictional facts, the existence or satisfaction of which obliges the magistrate to conduct the proceedings. No issue is taken that all of these conditions were met.
7. Subsection 19(2) of the Act stipulates four conditions precedent or jurisdictional facts, the existence or satisfaction of which must be met before a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country. No issue was taken that the conditions in (a) (production of ‘supporting documents’) and (b) (production of any other documents) were met; nor that the condition in (d) (lack of satisfaction as to substantial grounds for believing there is an extradition objection in relation to the offence) was met.
8. The only live issue before the magistrate, and on review of the magistrate’s determination before this Court, was whether the magistrate could be satisfied as to the dual criminality requirement in subs 19(2)(c) of the Act. That condition is in the following terms:

(a) ...

(b) ...

(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) ...

9. The term ‘extradition offence’ is relevantly defined in s 5 of the Act to mean:

(a) ...

(b) in relation to Australia or a part of Australia—an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.

THE DUAL CRIMINALITY REQUIREMENT

10. It was common ground that what is required is not complete identicality of offences, but in substance, duality of criminality: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 411; Holt v Hogan (No 2) [1993] FCA 543; (1993) 46 FCR 145 at 149 – 151 per Lee J. The issue is whether the conduct or the equivalent conduct referred to in the subs 19(3)(c)(ii) authenticated statement, if committed in New South Wales, would be a criminal offence with a maximum sentence of imprisonment of at least 12 months: United States v Holt [1994] FCA 1115; (1994) 49 FCR 501 at 504; Zoeller v Republic of Germany (1989) 23 FCR 282 at 297 and 299 – 300.

THE RELEVANT CONDUCT

11. As to the conduct constituting the offences in relation to Germany, the respondent, in a schedule to its written submissions, set out a summary of the conduct taken from the Arrest Warrant issued by the Regional Court in Düsseldorf. No issue was taken with the accuracy of this summary, and it is set out verbatim in [12] and [13] below. Mr Mehl is charged with 10 offences, which fall into two categories.

Category One Offences

12. The first category comprises nine offences that involved, in summary, the following conduct:
    1. In or before June 2004, Mr Mehl agreed with Chaykh-El-Najarin (‘El-Najarin’) to fraudulently acquire commission payments and other pecuniary profits from mobile phone service providers by using a network of companies to sell mobile phones, and mobile phone pre-paid card contracts.
    2. With the intention of implementing this agreement, Mr Mehl, El-Najarin and two others, caused a company (‘Pluscall’) operated by the four of them and of which Mr Mehl was Managing Director, to enter into a contract with a service provider (‘Mobilcom’).
    3. Under the contract with Mobilcom:

(a) Pluscall promised to sell mobile phones and phone cards together as a bundle and promised not to sell them separately, in return for which Pluscall was to receive a discount of 20 euros per phone; and

(b) Pluscall promised to act as agent for Mobilcom and to represent its interests and to prevent abuse of the network activating system.

4. At the time of entering into this contract Mr Mehl intended to separate the phones and the cards and sell them separately contrary to the promise made to Mobilcom in return for the discount;
5. Mr Mehl and El-Najarin then received nine deliveries of pre-paid bundles from Mobilcom and sold the mobile phones separately from and without the cards to a third party or his company (‘Telesonic’) for resale in Eastern Europe;
6. In order to conceal the fact that the bundles had not been sold to paying customers, and thereby avoiding the obligation of paying back advance commission received at an average of 15 euros per bundle, Mr Mehl and others misrepresented to Mobilcom that they had sold the bundles to paying end customers in regular business transactions by:
   • registering the bundles in the names of persons selected at random from telephone books by Mr Mehl and others; and
   • registering and activating several hundred bundles with a company called ‘Titanid’ that was not in truth, a paying end customer of any bundle.

Category Two Offence

13. The second category comprises one offence which involved the following conduct:
    1. Mr Mehl and two others in or about November 2003, agreed to continuously make profits by committing fraud offences to the disadvantage of telephone network operators.
    2. Pursuant to this agreement, a company (‘Star.Way.Com’) purchased telephone minutes from ‘MCI’, being a global telecommunications services provider.
    3. Mr Mehl and the two others intended in the initial phase to pay the invoices issued by MCI for the telephone minutes provided to Star.Way.Com, but at a later stage they intended to receive further minutes but to stop paying the invoices and to leave the charged sums unpaid.
    4. Some time after November 2004, in accordance with the agreement between Mr Mehl and the two others, and in accordance with the intention they had formed to do this, Star.Way.Com stopped paying the amounts charged for the telephone minutes they used.
    5. In order to conceal who the actual receiver was of these telephone minutes (namely a German company (‘Mowatel’)) Mr Mehl hired some racks (or electronic modules) in Paris to transfer the telephone minutes to Mowatel.
    6. Soon after November 2004, Star.Way.Com considerably increased its network time with MCI. MCI, on realising the increase, asked for increased security.
    7. Mr Mehl and the two others provided as security a forged bond in the sum of 200,000 euros dated 22 April 2005 and a further forged bond in the sum of 600,000 euros dated 6 May 2005.
    8. MCI continued to supply Star.Way.Com in the belief that supply was secured by these bonds.
    9. MCI is owed over 2.3 million euros by Star.Way.Com.

THE RESPONDENT’S CASE

14. The respondent’s case was that the dual criminality requirement of subs 19(2)(c) was satisfied. Its case was principally predicated on the applicability of the provisions of s 178BA of the Crimes Act 1900 (NSW) (‘the Crimes Act’) to the relevant conduct, but in the alternative, it relied on ss 176A, 178A and 179 of the Crimes Act with respect to the relevant conduct constituting the Category One Offences and s 474.2(1) of the Schedule to the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) with respect to the relevant conduct constituting the Category Two Offence.
15. For conduct contravening them, all these provisions provide maximum penalties by way of terms of imprisonment of between five and ten years.

THE RELEVANT LAWS OF NEW SOUTH WALES AND AUSTRALIA

16. Section 178BA of the Crimes Act provides:

178BA Obtaining money etc by deception

(1) Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years.

(2) In subsection (1):

“deception” means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:

(a) a deception as to the present intentions of the person using the deception or of any other person, and

(b) an act or thing done or omitted to be done with the intention of causing:

(i) a computer system, or

(ii) a machine that is designed to operate by means of payment or identification,

to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.

(3) For the purposes of and without limiting Part 1A, the necessary geographical nexus exists between the State and an offence against this section if the offence is committed by a public official (within the meaning of the Independent Commission Against Corruption Act 1988) and involves public money of the State or other property held by the public official for or on behalf of the State.

17. Section 176A of the Crimes Act provides:

176A Directors etc cheating or defrauding

Whosoever, being a director, officer, or member, of any body corporate or public company, cheats or defrauds, or does or omits to do any act with intent to cheat or defraud, the body corporate or company or any person in his or her dealings with the body corporate or company shall be liable to imprisonment for 10 years.

18. Section 178A of the Crimes Act provides:

178A Fraudulent misappropriation of moneys collected or received

Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of:

(a) such money or valuable security or the proceeds thereof, or

(b) any balance of such money, valuable security, or proceeds thereof after any authorised deductions or payments have been made thereout,

fraudulently misappropriates to his or her own use or the use of any other person, or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years.

For the purposes of this section any such money, valuable security, or proceeds thereof, or any balance thereout shall be deemed to be the property of the person who authorised the collection or receipt of the money or valuable security or from whom the money or valuable security was received notwithstanding that the accused may have been authorised to make any deduction thereout on his or her own behalf, or any payment thereout to another person, or to mix such money, valuable security, or proceeds thereof, or such balance with his or her own moneys.

19. Section 179 of the Crimes Act provides:

179 False pretences etc

Whosoever, by any false pretence or by any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, obtains from any person any property, with intent to defraud, shall be liable to imprisonment for five years.

20. Division 474 of the Schedule to the Criminal Code (Cth) relevantly provides:

Division 474 -- Telecommunications offences

Subdivision A--Dishonesty with respect to carriage services

474.1 Dishonesty

(1) For the purposes of this Subdivision, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact.

474.2 General dishonesty with respect to a carriage service provider

Obtaining a gain

(1) A person is guilty of an offence if the person does anything with the intention of dishonestly obtaining a gain from a carriage service provider by way of the supply of a carriage service.

Penalty: Imprisonment for 5 years.

THE RESPONDENT’S SUBMISSIONS

21. In relation to the application of each of these provisions to the relevant conduct, the respondent made the following submissions:

Dual criminality of Category One

If the conduct or equivalent conduct constituting these offences had taken place in New South Wales, at the time when the extradition request was received on 9 January 2008, it would have constituted an extradition offence, namely the offences of:

(a) dishonestly obtaining any money or a valuable thing or a financial advantage by deception contrary to section 178BA of the Crimes Act, in that the conduct involved Mr Mehl:

(i) obtaining for himself or another person, namely, Pluscall, or one or more of the persons referred to in [12.1] and [12.2] above;

(ii) dishonestly and by deception, namely (1) the fraudulent entry into the contract by Pluscall referred to in [12.3] above, at a time when Mr Mehl had made the agreement with El-Najarin referred to in [12.1] above, and when he intended as stated in [12.4] above, to separate the bundles, and sell them separately, and (2) the fraudulent registration of telephone bundles by Mr Mehl and others done to deceive Mobilcom referred to in [12.6] above;

(iii) any money or valuable thing or financial advantage of any kind whatsoever, namely, the discount on the sale of each bundle of 20€, and the advance commission averaging 15€ per bundle.

(b) fraudulent misappropriation of, or fraudulent omission to account for or pay the whole or any part of, monies collected or received upon terms requiring him to account for or pay to any person the whole or part of such money or the balance thereof contrary to s 178A of the Crimes Act, in that the conduct involved Mr Mehl:

(i) fraudulently misappropriating to the use of himself or any other person, namely, Pluscall, or one or more of the persons referred to in [12.1] and [12.2] above, by engaging in the conduct set out in [12.1] – [12.6] above including fraudulently receiving advance commission payments at a time when Mr Mehl intended to separate the phones and the cards and sell them separately, and falsely registering the sale of the bundles as set out in [12.6] in order to avoid paying back the advance commissions received;

(ii) or, alternatively, fraudulently omitting to account for or pay the whole or part of any such money or the whole or any part of any such money, by engaging in the conduct set out in [12.1] – [12.6] above including fraudulently receiving advance commission payments at a time when Mr Mehl intended to separate the phones and the cards and sell them separately, and falsely registering the sale of the bundles as set out in [12.6] in order to avoid paying back the advance commissions received;

(iii) the whole of any part of money, namely, the advance commission payments of an average of 15€ per bundle;

(iv) received upon terms requiring him to deliver or account for or pay to, namely, to repay the advance commissions in the event that the applicable bundle was not sold;

(v) any person, namely, Mobilcom.

(c) obtaining property with intent to defraud by any false pretence or by any willfully false promise contrary to s 179 of the Crimes Act in that the conduct involved Mr Mehl:

(i) by a false pretence, namely, the conduct referred to in [12.6];

(ii) alternatively by a willfully false promise, namely, the promises referred to in [12.3] above made at a time when Mr Mehl had the intention referred to in [12.4] above and had made the agreement referred to in [12.1] above;

(iii) in the further alternative, partly by the false pretence referred to in sub-paragraph (i) and partly by the willfully false promise referred to in sub-paragraph (ii);

(iv) obtaining from any person, namely, Mobilcom;

(v) any property, namely, the bundled mobile phones and phone cards;

(vi) with intent to defraud, namely, to engage in the conduct referred to in [12.1] and [12.4] above, or alternatively [12.1], [12.4] and [12.6] above.

(d) as a director, officer, or member, of any body corporate, cheating or defrauding any person contrary to section 176A of the Crimes Act , in that the conduct involved Mr Mehl:

(i) as a director, officer, namely managing director, or as a member;

(ii) of any body corporate, namely Pluscall;

(iii) cheating or defrauding any person, namely Mobilcom, such cheating or defrauding being the use of the dishonest means referred to in [12.1] to [12.6] above to obtain the discounts and commissions to which he and Pluscall had in truth no right, and which, further, were to the prejudice of Mobilcom;

(iv) in his dealings with the body corporate, Mobilcom, namely, the entry into the contract referred to in [12.2] above, and the receipt of the nine deliveries, at a discount, and the advance commissions, referred to in [12.5] and [12.6] above.

Dual criminality of Category Two

If the conduct or equivalent conduct, had taken place in New South Wales, at the time when the extradition request was received on 9 January 2008, it would have constituted an extradition offence, namely the offences of:

(a) dishonestly obtaining any money or a valuable thing or a financial advantage by deception contrary to section 178BA of the Crimes Act, in that the conduct involved Mr Mehl:

(i) obtaining for himself or another person, namely Star.Way.Com, or any one or more of the persons referred to in [13.1] above (‘others’);

(ii) dishonestly and by any deception, namely any one or more of:

(1) the fraudulent continued receipt from MCI of minutes when Mr Mehl and others had agreed (see [13.1] above), and had formed the intention (see [13.3] above), to stop paying for any such minutes;

(2) the concealment by Mr Mehl referred to in [13.5] above of who was actually receiving the minutes; and

(3) the provision to MCI of the two forged bonds referred to in [13.7] above;

(iii) a valuable thing or financial advantage of any kind whatsoever, namely, the telephone minutes supplied by MCI after the intention referred to in [13.3] above had been formed.

(b) doing anything with the intention of dishonestly obtaining a gain from a carriage service provider by way of the supply of a carriage service contrary to section 474.2(1) of the Schedule to the Criminal Code, in that the conduct involved Mr Mehl:

(i) doing a thing, namely, engaging in the conduct referred to in [13.1], [13.2] and [13.3] above, or [13.1] – [13.3] , [13.5] and [13.7] above;

(ii) with the intention of obtaining a gain, namely, the continued receipt from MCI of telephone minutes;

(iii) dishonestly, namely, by engaging in any one or more of the items of conduct referred to in (a)(ii)(1)-(3) above;

(iv) from a carriage service provider, namely, MCI;

(v) by way of the supply of a carriage service, namely, the continued provision by MCI to Star.Way.com of the telephone minutes.

THE APPLICANT’S SUBMISSIONS

22. In relation to the application of each of these provisions to the relevant conduct, the applicant made the following submissions:

Dual Criminality of Category One

Section 178BA Crimes Act 1900

(1) Section 178BA requires the accused to have practised a deception. According to the translated copy of the Arrest Warrant, the co-accused, El-Najarin, signed the contract with Mobilcom. There is no allegation that the applicant had any personal dealings with Mobilcom, that could be considered to have been deceptive. Thus, there is no allegation that the applicant practised a deception.

(2) For s 178BA to be satisfied, there must be a causal connection between the deception practised and the advantage obtained. There is no issue that a financial advantage was obtained but whether it be the 15 euros advance commission or the 20 euros discount in respect of the purchase price, they were both obtained prior to the registration of the SIM cards, and for that reason there can be no causal connection between the two.

(3) The registration of the SIM cards under false names could not constitute a relevant deception because registration occurred using a computer system called maui. The registration of the SIM cards occurred not through an employee of Mobilcom; where no person is deceived but rather a computer system, no criminal liability can attach: see In re Holmes [2005] 1 WLR 1857, 1862 – 1863 at [11] – [12] per Stanley Burnton J; Davies v Flackett [1973] RTR 8 per Bridge J; Kennison v Daire (1985) 38 SASR 404 per O’Loughlin J (‘a machine cannot be the subject of deception’), cited with approval R v Baxter [1988] 1 Qd R 537, 539 per Connolly J and R v Fischetti (2003) 192 FLR 119, 124 at [22] per Gray J. In this context, the respondent may not place reliance upon the extended definition of deception in s 178BA(2)(b) of the Crimes Act because there is no suggestion that the applicant or his co-accused were not authorised to register SIM cards. On the contrary, it appears to have been the very purpose of the contract with Mobilcom. Therefore, the registration of the SIM cards was not a relevant deception for the purposes of s 178BA, even if the data entered was ‘false’.

Section 178A Crimes Act

(4) In the alternative, the respondent submitted that the relevant conduct would be punishable under s 178A Crimes Act. The respondent relied upon the receipt of what are termed ‘advance commission payments’. However, there is no suggestion in the copy of the arrest warrant or indeed in any document whatsoever, that the applicant was to apply such advance commission payments in any particular way, that being a requirement of s 178A. Overall, not one of the documents discloses the purpose of the advance commission payments. Although there is reference to such payments, the purported terms upon which such payments were purportedly made are not specified in any supporting document. Thus, there is insufficient information, upon which this Court could determine whether the conduct would also be punishable in New South Wales.

(5) Moreover, there is no allegation that the applicant collected, or even received, any moneys. Since the terms of the contract are not set out in any detail whatsoever, it may, for example, have been that Mobilcom was contractually bound to pay at a particular point in time. Where moneys have not in fact been received, there can be no liability under s 178A Crimes Act.

Section 179 Crimes Act

(6) The respondent next contended that dual criminality is satisfied in respect of s 179. However, this argument suffers from the same defect as that relating to s 178BA. Firstly, the respondent suggests that the false pretence was the ‘fraudulent registration’ of the mobile telephones. However, there is no suggestion whatsoever that the act of registration was done in order to obtain the telephones; and nor could it be, since they were all obtained much earlier. Indeed, such a suggestion would be absurd, since the phones would have to have been already in the possession of Pluscall, before they could be registered. For liability to attach, the false pretence must occur before the property is obtained: R v Steels (1867) 32 JP 309.

(7) Insofar as the respondent relies upon the concluding of the contract with Mobilcom, this too cannot found the basis for criminal liability, since there is no allegation that the applicant made any false pretence. Furthermore, there is no allegation that the respondent ‘obtained any property’ as required by s 179. At best, the company, Pluscall, obtained the property. Again, there could be no conviction pursuant to s 179 for the conduct alleged.

Section 176A Crimes Act

(8) Where a person is charged with an offence contrary to s 176A, ‘the prosecution [must] prove that the [accused] used dishonest means to prejudice the rights of such a person in his or her dealings with [the body corporate]’: Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603, 631 at [81] per Gaudron, McHugh, Gummow and Hayne JJ. As set out in respect of s 178BA, there is no allegation that the respondent employed such dishonest means. Accordingly, double criminality would not be satisfied in respect of s 176A.

Dual Criminality of Category Two

(9) In relation to the final offence, the respondent again relies upon s 178BA of the Crimes Act. However, as before, there is absolutely no allegation that the applicant dealt with MCI, except in relation to the alleged provision of purportedly false bank ‘bail bonds’, a translation that is patently incorrect and inadequate. The word used in the original German document is ‘Bürgschaft’, which correctly translates into English as ‘guarantee’. Notwithstanding that, and any other possible errors, absent an allegation that the applicant practised a particularised deception upon MCI, upon which it relied, the applicant could not be guilty of an offence contrary to s 178BA.

(10) Reliance is also placed upon the fact that minutes were transferred to a company in Germany by Star.Way.Com. However, there is no allegation that this fact would in any way have impacted upon MCI’s willingness to provide telephone minutes, upon condition that it is paid. Thus, this act cannot be said to be causal in respect of the granting of a financial advantage.

(11) Thus, the only conduct, which might be said to be relevant, would appear to be the provision of the forged guarantees. However, the purported copy of the arrest warrant, and of course its translation, is, once again, inadequately vague. It merely states, ‘The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...’ Once again, here the word ‘demands’ is quite misleading. The word ‘Förderungen’ in the original German correctly translates to ‘claims’, in the sense of legal claims. Apart from that, the warrant fails to disclose the precise conduct, which is alleged against the respondent. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else, who, in turn, provided it to MCI? In particular, there is no allegation whatsoever that the applicant knew that the guarantee was forged. Compare Linhart v Elms (1988) 81 ALR 557, 588 per Foster J:

Although sub-subpara (c) clearly does not require that the whole of the available evidentiary material be laid before the magistrate in Australia, it does, in my view, at least require that precise allegations of the ‘manner and means’ of the making of the basic fraudulent representations be provided.

(12) Section 474.2(1) of the Criminal Code suffers from the same problems. Additionally, the offence would not apply, had the same conduct occurred in Australia. In order to satisfy the provision, the person must obtain a gain from a ‘carriage service provider’. That term is, in turn, defined by s 87 of the Telecommunications Act 1997 (Cth) to include persons providing a ‘listed carriage service’, a term defined by s 16 of the Act. These provisions demonstrate that there must be at least one point of connection with Australia. Since, the warrant does not allege that MCI had any connection with Germany, the conduct would not fall within s 474.2(1).

ANALYSIS AND CONCLUSION

23. If I find that the dual criminality requirement of subs 19(2)(c) of the Act is satisfied by reference to s 178BA of the Crimes Act with respect to both the Category One Offences and the Category Two Offence, then it is not necessary to consider satisfaction of that requirement by reference to the alternative provisions relied upon by the respondent; the application would have to be dismissed.
24. The first of the applicant’s submissions in relation to the non-applicability of s 178BA of the Crimes Act is that the Arrest Warrant contains no allegation that the applicant practised a deception on Mobilcom; it is said that there is no allegation that he had any personal dealings with Mobilcom; moreover, his co-accused, El-Najarin, and not he, signed the contract with Mobilcom. However, this submission does not withstand scrutiny in the face of the following extract from the terms of the Arrest Warrant:

While implementing their intentions [to fraudulently acquire commission payments and other pecuniary profits from mobile phone service providers] ... the accused person together with Chaykh-El-Najari[n], Caliskan and Kundt, who are prosecuted in a separate case, have concluded a so-called retailer and intermediary contract between the company Pluscall GmbH Kleve, which had been operated by them, and the provider Mobilcom ...’ (Emphasis added)

In other words, the allegation is that all four individuals, through the instrumentality of Pluscall, concluded the contract with Mobilcom to implement their intentions to fraudulently acquire commission payments and other pecuniary profits from Mobilcom. Clearly, this is an allegation that the applicant practised a deception on Mobilcom; the fact that one of them, not being the applicant, actually signed the contract on behalf of Pluscall – there could be no suggestion that the Arrest Warrant alleges that El-Najarin signed the contract in his own right – is beside the point.

25. The second of the applicant’s submissions in relation to the non-applicability of s 178BA of the Crimes Act is that there is no causal connection between the deception practised and the advantage obtained; whether the advantage obtained is the advance commission or the discount of the purchase price, they were both obtained prior to the registration of the SIM cards and for that reason there was no causal connection between the two. But the Arrest Warrant makes clear that the allegation is that, at least in the case of the advance commission, it would have to be paid back unless the SIM cards were registered. The Arrest Warrant provides:

In order not to pay back the average advance commission payment of 15.00 € per bundle to Mobilcom, the respective bundles had been registered with the names of persons who had been picked randomly from telephone books by the accuses [sic] and Chaykh-El-Najarin as well as by Houggati [an employee] ...’

On the basis of this allegation, there is a direct nexus between the deception practised and the financial advantage obtained, and counsel for the applicant conceded as much.

26. The third of the applicant’s submissions in relation to the non-applicability of s 178BA of the Crimes Act is that because registration of the SIM cards was effected not through an employee of Mobilcom but through a computer system called ‘maui’, there could be no relevant deception. In this context, it was submitted that the extended definition of deception in s 178BA(2)(b) had no application because there is no suggestion that the applicant or his co-accused were not authorised to register the SIM cards; on the contrary, this was the very purpose of the contract with Mobilcom. There are, in my view, two answers to this submission. First, the Arrest Warrant alleges that the act of registration was done manually ‘... with the names of persons who had been picked randomly from telephone books by the accuses [sic] ...’ and that it was only the activation of those registrations which were effected through the ‘maui system’. That the Arrest Warrant suggests the acts of registration and activation are separate and discrete is not surprising; there are many other areas of economic activity where the act of registration or issue are separate and discrete from the activation of the card through which the relevant facility will be operated. Second, the suggestion that the applicant and his co-accused were authorised to register the SIM cards in the manner they did, by registering them in the names of persons picked randomly from the telephone directory, has no foundation in the Arrest Warrant or any other document; no such authority existed, on my reading of the Arrest Warrant, to obviate the operation of s 178BA(2)(b) of the Crimes Act.
27. It follows, in my view, that the dual criminality requirement of subs 19(2)(c) of the Act in relation to the Category One Offences is satisfied by recourse to s 178BA of the Crimes Act; it is unnecessary to have recourse to any other provision for reliance that the requirement is satisfied in relation to those offences.
28. The applicant’s submission as to the non-application of s 178BA of the Crimes Act in relation to the Category Two Offence relies on the absence of an allegation that the applicant practised a particularised deception upon MCI. The criticism here seems to be directed at the generality or vagueness of the alleged deception: ‘The accused person as well as Houggati and Mohamed Kazzaz then provided as a security for the present and future demands of MCI from Star.Way.Com a forged bail bond ...’. It is said that the Arrest Warrant fails to disclose the precise conduct, which is alleged against the applicant. Did the applicant, in fact, provide the guarantee? Did he provide the guarantee to someone else who in turn provided it to MCI? In particular, it is said that there is no allegation whatsoever that the applicant knew that the guarantee was forged. Reference was made to what was said in Linhart v Elms (1988) 81 ALR 557, 588 per Foster J.
29. On my reading of the Arrest Warrant, there is no doubt that it alleges that the applicant, together with the others named, provided the bail bond (guarantee) to MCI, and not to some third party that provided it to MCI. It is true that there is no specific allegation that the applicant knew that the bail bond (guarantee) was forged, but the implication is self-evident.
30. I am of the view that the dual criminality requirement of subs 19(2)(c) of the Act in relation to the Category Two Offence is satisfied by recourse to s 178BA of the Crimes Act.
31. The application must be dismissed with costs.
    

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 30 January 2009

Counsel for the Applicant:	Mr P Lange
Solicitor for the Applicant:	LawyersCorp Pty Ltd
Counsel for the Respondent:	Mr NJ Beaumont
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions

Date of Hearing:	24 July 2008
Date of Judgment:	30 January 2009