Klepp, H.H. v Gibb, W.P. & anor [1988] FCA 374

Klepp, H.H. v Gibb, W.P. & anor [1988] FCA 374

The material produced by the Republic of Austria did not contain a duly authenticated statement that sufficiently particularised the offence for which the applicant's extradition was sought, nor did it clearly identify the elements of the relevant offence or the applicable maximum penalty as required by the Act and the Treaty. Therefore it was not open to the Magistrate to be satisfied that the applicant was liable to be surrendered, and the committal and warrant must be set aside and the applicant released.

Parties
Appellant: Hans Heinz Klepp; First Respondent: William Paterson Gibb; Second Respondent: Republic of Austria
Jurisdiction
Australia
Judgment Date
18 July 1988
Procedural Posture
Appeal / Full Federal Court Appellate Review From a Single Judge
Outcome
Appeal allowed. Committal and warrant set aside. Applicant to be released. Respondent to pay costs.
Legal Topics
Interpretation of Extradition (foreign States) Act 1966 (cth), Interpretation of Extradition Treaty Requirements, Admissibility and Authentication of Foreign Documents, Procedural Requirements for Extradition, Role and Authority of Magistrates
Extradition Administrative Law Criminal Law Interpretation of Extradition (foreign States) Act 1966 (cth) Interpretation of Extradition Treaty Requirements Admissibility and Authentication of Foreign Documents Procedural Requirements for Extradition Role and Authority of Magistrates

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 6 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Hans Heinz Klepp

Appellant

William Paterson Gibb

First Respondent

Republic of Austria

Second Respondent

Procedural Posture

Appeal / Full Federal Court Appellate Review From a Single Judge

Legal Issues

  1. 1 Whether the documents relied on by the requesting state were duly authenticated and admissible in evidence before the Magistrate
  2. 2 Whether the material before the Magistrate contained a sufficiently particularised statement or description of the offence for which extradition was sought and the penalty applicable to it
  3. 3 Whether, if the acts or omissions alleged were committed in Victoria, such acts would constitute a relevant offence under Victorian law with the requisite penalty

Ratio Decidendi

The material produced by the Republic of Austria did not contain a duly authenticated statement that sufficiently particularised the offence for which the applicant's extradition was sought, nor did it clearly identify the elements of the relevant offence or the applicable maximum penalty as required by the Act and the Treaty. Therefore it was not open to the Magistrate to be satisfied that the applicant was liable to be surrendered, and the committal and warrant must be set aside and the applicant released.

Court Disposition

Appeal allowed. Committal and warrant set aside. Applicant to be released. Respondent to pay costs.

Orders

  • The appeal be allowed.
  • The orders made on 18 November 1987 be set aside and in lieu thereof: (i) the decision and warrant of 7 August 1987 be set aside; (ii) the applicant (Hans Heinz Klepp) be released; (iii) the Republic of Austria to pay the applicant's costs of the application;