Federal Republic of German & Anor v. Schlieske, J.I. & Anor [1987] FCA 58

Federal Republic of German & Anor v. Schlieske, J.I. & Anor [1987] FCA 58

Because reg.4 of the Extradition (Federal Republic of Germany) Regulations made liability to surrender conditional on evidence of an act or omission by the fugitive being produced in connection with the requisition, and because no evidence of guilt was placed before the magistrate, the magistrate was correct not to be satisfied under s.17(6)(b) that the appellant was liable to be surrendered. The condition was not solely for the Attorney-General, and the presumption of regularity could not supply the required satisfaction.

Jurisdiction
Australia
Judgment Date
03 March 1987
Procedural Posture
Appeal in Extradition Proceedings / Appeal From Orders of Sweeney J on an Application for Review Under S.17 A(1) of the Extradition (foreign States) Act 1966
Outcome
Appeal allowed.
Legal Topics
['extradition From Australia to a Foreign State' 'evidence Before Magistrate' 'relationship Between Extradition (foreign States) Act 1966 and Regulations' 'liability to Be Surrendered' 'presumption of Regularity of Official Acts']
['extradition' 'administrative Law' 'criminal Procedure'] ['extradition From Australia to a Foreign State' 'evidence Before Magistrate' 'relationship Between Extradition (foreign States) Act 1966 and Regulations' 'liability to Be Surrendered' 'presumption of Regularity of Official Acts']

Case Brief

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Procedural Posture

Appeal in Extradition Proceedings / Appeal From Orders of Sweeney J on an Application for Review Under S.17 A(1) of the Extradition (foreign States) Act 1966

Legal Issues

  1. 1 ["Whether the Federal Republic of Germany was required to place evidence of the appellant's guilt before the magistrate seeking his extradition." 'Whether regulations applying the Extradition (Foreign States) Act 1966 to the Federal Republic of Germany imposed a condition requiring evidence of an act or omission to be produced in connection with the requisition.' 'Whether the magistrate was concerned with compliance with limitations, conditions, exceptions or qualifications in the regulations, or whether that question was for the Attorney-General alone.' 'Whether the presumption of regularity of official acts could satisfy the magistrate that the appellant was liable to be surrendered.']

Ratio Decidendi

Because reg.4 of the Extradition (Federal Republic of Germany) Regulations made liability to surrender conditional on evidence of an act or omission by the fugitive being produced in connection with the requisition, and because no evidence of guilt was placed before the magistrate, the magistrate was correct not to be satisfied under s.17(6)(b) that the appellant was liable to be surrendered. The condition was not solely for the Attorney-General, and the presumption of regularity could not supply the required satisfaction.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders made by Sweeney J be set aside and in lieu thereof it be ordered that the application for review be dismissed with costs.' 'The order made by Sheppard J on 3 October 1986 in relation to the keeping in custody of the appellant, Jens Ingo Schlieske, be rescinded.' 'The first...