Linhart, H.R. & Anor v Elms, E.E.E. Hon. Lionel Bowen, Attorney-General for the Commonwealth of Australia [1988] FCA 416

Linhart, H.R. & Anor v Elms, E.E.E. Hon. Lionel Bowen, Attorney-General for the Commonwealth of Australia [1988] FCA 416

The Court held that the requirements of double criminality and equivalence were satisfied in respect of specified charges (first three charges and 4(a), 4(b)), as the conduct, though relating to German institutions, would constitute offences under New South Wales law. However, for charges 4(c) to 4(x), the warrant lacked sufficient particularity of the acts or omissions as required by s.17(6)(a)(i)(C) of the Act, meaning the warrants of committal were invalid to that extent.

Parties
Appellant/cross Respondent: HARALD ROLF LINHART; Appellant/cross Respondent: PAULA BONGARDT; First Respondent: ELWYN EDGARD ERNEST ELMS; Second Respondent: THE HONOURABLE LIONEL BOWEN, HER MAJESTY'S ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA; Third Respondent/cross Appellant: THE FEDERAL REPUBLIC OF GERMANY
Jurisdiction
Australia
Judgment Date
20 June 1988
Procedural Posture
Appeal / On Appeal From a Single Judge of the Federal Court
Outcome
Appeal dismissed; cross-appeal partly allowed; most charges invalid for extradition except specified ones.
Legal Topics
Double Criminality, Extradition Requirements, Equivalence of Offences, Fraudulent Misrepresentation, False Statements, Accounting Failures
Criminal Law Extradition Law Company Law Double Criminality Extradition Requirements Equivalence of Offences Fraudulent Misrepresentation False Statements +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 13 Party arguments 2 Amounts and remedies 23
Sign in to unlock

Parties

HARALD ROLF LINHART

Appellant/cross Respondent

PAULA BONGARDT

Appellant/cross Respondent

ELWYN EDGARD ERNEST ELMS

First Respondent

THE HONOURABLE LIONEL BOWEN, HER MAJESTY'S ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

THE FEDERAL REPUBLIC OF GERMANY

Third Respondent/cross Appellant

Procedural Posture

Appeal / On Appeal From a Single Judge of the Federal Court

Legal Issues

  1. 1 Whether the requirement of double criminality was satisfied for extradition under the Extradition (Foreign States) Act 1966
  2. 2 Whether allegations and statutory equivalents established criminality under NSW law for the acts charged in Germany
  3. 3 Meaning of 'equivalent act or omission' in extradition procedure

Ratio Decidendi

The Court held that the requirements of double criminality and equivalence were satisfied in respect of specified charges (first three charges and 4(a), 4(b)), as the conduct, though relating to German institutions, would constitute offences under New South Wales law. However, for charges 4(c) to 4(x), the warrant lacked sufficient particularity of the acts or omissions as required by s.17(6)(a)(i)(C) of the Act, meaning the warrants of committal were invalid to that extent.

Court Disposition

Appeal dismissed; cross-appeal partly allowed; most charges invalid for extradition except specified ones.

Orders

  • The appeal be dismissed.
  • The cross-appeal is allowed so far as concerns the charges lettered (a) and (b) under the heading 'Relating to 4' in the warrant of arrest issued by the third respondent, and is otherwise dismissed.