Dutton v O'Shane & Anor

[2003] HCATrans 503

[2003] HCATrans 503

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S495 of 2003

B e t w e e n -

EDWARD ISAAC DUTTON

Applicant

and

PATRICIA JUNE O’SHANE

First Respondent

THE REPUBLIC OF SOUTH AFRICA

Second Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 10.45 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   May it please the Court, I appear for the applicant with my learned friend, MS S.E. PRITCHARD.  (instructed by Fox & Staniland Lawyers) 

MR P.W. NEIL, SC:   May it please the Court, I appear for the second respondent with my learned friend, MS P. McDONALD.  (instructed by Commonwealth Director of Public Prosecutions) 

McHUGH J:   Before you commence, Mr Game, the Deputy Registrar has certified that she has been informed by the solicitor for the first respondent in this matter that the first respondent submits to the order of the Court save as to costs.  Yes, Mr Game.

MR GAME:   If the Court pleases, there are three discrete questions that we ‑ ‑ ‑

McHUGH J:   Not four?

MR GAME:   There are four, but there is 1(a) and (b).  1(b) is whether or not it is for the court to determine – whether or not the reviewing magistrate has to determine whether or not they are extradition offences, but 1(b) depends on 1(a), so ‑ ‑ ‑

McHUGH J:   That part of your special leave application that deals with the proper approach to the review required by section 21(1) of the Act – it is difficult to see any special leave points there, for various reasons, including the fact that at least one of them was not argued in the Full Court on the points.  What about your other points?  You have three points, have you not?

MR GAME:   Your Honour, I have three points.

McHUGH J:   You have a point as to the proper construction of the definition of “extradition offence”.

MR GAME:   Yes.  We have a point about dual criminality and a point about the nature of the review.

GUMMOW J:   The first two look a bit more attractive than the third.

McHUGH J:   When you argue whether or not the court is entitled to give weight to the credibility findings of the magistrate, well, how is that a special leave point?  You have to say that Justice James’ approach is erroneous.  How else he is to deal with it, apart from giving weight to it? 

MR GAME:   Your Honour, it is taking my argument a little bit out of turn, or completely out of turn, but what I ‑ ‑ ‑

McHUGH J:   All I am putting to you is that it seems to me, at the moment, that you have some arguable grounds for special leave on these other ones, but the 21(1) approach points seem to me to be – at the moment, anyway – not really special ‑ ‑ ‑

MR GAME:   Can I say something about these shortly, but what we do say about them is that when you have a constrained review, as it were, in which the reviewing judge ‑ ‑ ‑

GUMMOW J:   Now, wait a minute.  We looked at this in Pasini, did we not?

MR GAME:   You did, your Honour, but this case raises questions about excluded evidence and curtailed cross‑examination and credibility findings, and, as I recall, in Pasini you were at pains to point out that that case did not adequately raise the issues with respect to the constitutional point.  Here we do have a real problem, we would submit, which is, with respect to the section 21 review ‑ ‑ ‑

GUMMOW J:   Wait a minute, that is what I am trying to get you to focus on.  What does Pasini say about the nature of the magistrate’s function?

MR GAME:   The magistrate’s function is an administrative function. 

GUMMOW J:   That is right.  Justice James was exercising judicial power for the first time.

MR GAME:   Yes, your Honour, and then he had to determine for himself, as it were, the admissibility of the material.  I do not want to get too distracted on this, because I might lose ‑ ‑ ‑

GUMMOW J:   No, we have invited you not to be, but you would seem to persist.

MR GAME:   Well, I will go back to the other points, and, if I have time at the end, I will come back to this.  The first point is the point about the proper construction of section 7 with respect to “extradition offences”.  If you look at the application book at page 154, this was the point on which we carried one judge in the Full Court.  If you look at the top of 154, the offences here were offences in respect of which the penalty was at large.  Now, we say that little ‑ ‑ ‑

GUMMOW J:   Now, where do we find that it is at large?

MR GAME:   If you look at page 154, you will see an extract from Mr de Vries’ affidavit.

GUMMOW J:   Yes.  So the highest penalty seems to be that list.

MR GAME:   Yes, your Honour, but the problem is that we say that (i) must take its sense from the context of (ii), and (ii), where it says:

does not carry a penalty – 

that means, as we point out in our submissions at 255, that there is no specified penalty.  If there is no specified penalty, the next ‑ ‑ ‑

GUMMOW J:   What do you mean by “specified”?

MR GAME:   No identified penalty or a penalty at large.

GUMMOW J:   It is identified, is it not?  The range is identified.

MR GAME:   Your Honour, that would mean that any offence in which the penalty was at large – say, for example, contempt – then would fall within (i), and it is put against us that contempt would fall in (ii).  It is really a question of working out what – that would leave no work at all for (ii), if that is the ‑ ‑ ‑

McHUGH J:   That is not what your opponent says, is it?  Your opponent says that it would still have work to do because it would apply in a situation where a treaty had been ratified automatically and has the force of law in a country.

MR GAME:   That is true, but, your Honour, even in those cases, it is not to say that there is no penalty.  There is no identified or specified penalty.  There is a penalty, for example – or there is an unspecified penalty for genocide and the like, and if one looks at the second reaching speech, which we have extracted a passage from at the bottom of 225, it refers to:

no specific penalty has been prescribed –

That is at the footnote from the second reading speech.  What we do say, your Honours, is that this is a well arguable point.  If it is correct, then the whole process has miscarried from the beginning, but the Full Court – the majority – really did not deal with our argument at all, did not address what the proper construction of (ii) was at all and did not address the problem of what it meant, because the Full Court thought that “no penalty” meant “no penalty at all”.  We see that, your Honours – or:

no penalty is prescribed – 

I beg your pardon, top of page 158.  They did not go on to address our arguments at all, and you can see that by looking at what appears at paragraph 46. 

There are problems which can be exposed if one takes the approach taken by the respondent, which is, there are two possible constructions on the respondent’s approach to (i).  Is any offence where the penalty is at large an offence in (i), or do you have to put on evidence of the kind that they have put on here about likely penalties? 

Now, we would submit that no such uncertainty was intended by the legislation, your Honours.  So that, for example, take, for instance, only No 13 was left.  What would be the likely penalty for number 13?  Because presumably that was addressed to the concurrent effect of all of them.  So is all that affidavit just surplusage?  Does it not mean a thing?  As I say, our point is that we have a reasonably arguable point on this construction point.  The problems with the construction taken by the respondent have not been addressed by the court at all, and it is obviously a matter of significant importance.  That is the extradition offence point.  Now, we come to the dual criminality point.  If your Honours go to page 159 ‑ ‑ ‑

McHUGH J:   Just before you leave that, what do you say to the contention of the respondent that even if your argument is generally right about your first point, nevertheless, there was no unacceptable level of uncertainty in this case because Mr de Vries’ affidavit was not contested by the applicant?

MR GAME:   Your Honour, first of all, you may not be able to even lead evidence, because there is a section that says that you cannot lead evidence to prove that you did not commit the offence, and I am not sure whether that would be caught, but, your Honour, the magistrate made a specific finding that these were extradition offences.  So she actually did address the point, and Justice James set that out, but our point is a question of construction.

We say what Mr de Vries had to say about likely penalties is of no assistance whatsoever in relation to the construction point.  It only points up the difficulties of the construction that the respondent advances and that these are not “extradition offences”, on a proper construction, for the reason that they are offences with the penalty at large.

McHUGH J:   Your opponent also argues that the history of the legislation is against you, or certainly does not support you, both in the United Kingdom and here. 

MR GAME:   Your Honour, we argue – and it is not a short argument – but we argue that the history supports us because in the United Kingdom, in effect, a list was retained, and we have taken out – we do not have the list in our 1988 legislation.  Now, we accept that there are arguments on both sides, but we do submit that it is an important question of construction.  There may be time to attract you to a grant of special leave to a more significant point, but we do submit that the question about whether or not extradition offences is a matter for the magistrate is itself a matter of general importance.

Now, your Honours, coming to the dual criminality point, if I could take your Honours to the application book at page 159, you will see section 19(2)(c) set out.  It talks about: 

the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct –

and 10(2) refers to “the acts or omissions”.  Now, at page 163, there is a citation from the Full Court in Zoeller, where it says that the statement must be: 

a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge –

and Justice Lindgren, he notes, said a similar thing and that was approved by the Full Court.  We come to paragraph 65 at 164, in which it is said that:

There has not been significant judicial exegesis of – 

this question, and we would, again, invite that to your Honours as a matter that suggests that this is an appropriate vehicle. 

If you go to what we say the acts and omissions were, they are set out at page 168.  We say those are the acts and omissions appearing in paragraph 75.  Now, what we get, at paragraph 76, is the respondent’s version of the acts and omissions.  Now, those are not the acts and omissions.  There is no context; they are actually a characterisation of the conduct in a context of lawfulness.  They in fact bring in notions of lawfulness, for example, making unlawful and false representations, but they are abstract.  They do not get you to the acts and omissions at all, and they are full of ideas that in fact, really, invite tailoring to the particular offences that the ‑ ‑ ‑

GUMMOW J:   Now, does anything come out of section 10(3)(b)?

MR GAME:   Not really, because that is for all offences, your Honour.  It is not the denomination of the offences.  It is because we do not have exchange control regulations and we do not have dual currency.

GUMMOW J:   Exactly.  This phrase “exchange control offences” is a categorisation.

MR GAME:   Your Honour, can I only say that subsection (3)(b) has been absent from the argument to date.

GUMMOW J:   I am not surprised.  Perhaps I should be, but I am not, really, the way this case has been conducted.  But does not 10(3)(b) indicate that it is no good complaining about no category of “exchange control offence”.  The people who drafted this Act were onto these sort of points.

MR GAME:   Yes, but, your Honour, this is about denomination or categorisation of offences.  We are talking about identifying the acts and omissions that go to make the conduct.  We are not concerned about the offences, but the conduct, for the purposes of dual criminality.  What we say is, if you take those acts and omissions ‑ ‑ ‑

GUMMOW J:   Yes, well, they are dishonest, are they not?

MR GAME:   That is true, your Honour, but that is not the end of the question.  If you go to the Full Court’s judgment at page 166 at paragraph 69, we say that the exercise which the court invites there of “abstraction and characterisation” is the very exercise which subsection 10(2) eschews, because it requires consideration of the acts and omissions.  We also say that the very case relied on, In re Anderson, at paragraph 71, demonstrates how important it is to identify the acts and omissions, because In re Anderson, in the case about the extradition of the slave, an assumption was drawn about lawful authority. 

One sees that in the third last line, and that is the kind of assumption we submit cannot be made for the purpose of dual criminality.  That is not conduct.  That is lawfulness.  So we submit that that is a second important question.  We submit that cases like Linhart v Elms do not address this particular problem, and the idea of corresponding significance in cases such as Linhart v Elms is concerned with corresponding institutions such as the Corporate Affairs Commission and the like.

Now, that is the second question, and, time permitting, I would like to say something briefly about the third.  What we say is this.  If you look at the application book at page 191, Justice James took the approach of considering all of the material, regardless of whether or not the magistrate had excluded it.  If one looks back to page 44, the full quote for that appears

and his Honour specifically refers to the kinds of bases on which some material was excluded – for example, whether it was in reply or whether or not it followed a failure of a direction by the magistrate.

Now, where that leaves us is this, in our submission, your Honours, that if that is the exercise and the exercise is constrained by what was before the magistrate and what the magistrate excluded, and if consideration of the correctness of the rulings by the magistrate is taken to play no part in the function, then it cannot be the case, in our respectful submission, that one would proceed on the basis of relying on the credibility findings of the magistrate or downgrading the weight to be given to evidence because it was not cross‑examined on, when that is no part of the inquiry.  We submit that is, in effect, the logical effect of the totally unsatisfactory review provisions that are provided in section 21, where a review judge has to determine for him or herself eligibility for surrender.

If we go to the application book at page 195, we see our argument in paragraphs 167 to 169.  The point taken against us at 171 is that our argument is premised upon the proposition that the rejected material was improperly rejected and that the curtailment of cross‑examination was unfair.  It is not put upon that basis, because that issue was not addressed at all, at any point in the inquiry.

Then, finally, we say in respect of the conflicting or disputed evidence, we make the same submission that you cannot rely on credibility findings for the same reason, and that appears at paragraph 174.  Then, in brief, we have our three special leave points with a possible fourth one relating to the nature of whether or not extradition offences are a matter for the magistrate or the judge on appeal.

McHUGH J:   Yes, thank you.  Mr Neil, we need only hear you on 1(a) and 1(c) in the special leave application.

MR NEIL:   Your Honours, in relation to 1(a), firstly, so far as section 5(a)(i) is concerned, the words are perfectly plain, and we say ‑ although we do not concede this position – that if there is any uncertainty that emanates from the wording of 5(a)(ii), then the correction is to be made to that provision.  It simply does not bear upon 5(a)(i).

Now, your Honours are conscious of the debate between us as to the extent to which there may be an impaction upon the real meaning of 5(a)(i) by whether or not, as our friends put, on their interpretation of 5(a)(ii), it has any work to do.  You are conscious that we have submitted, based upon the replacement explanatory memorandum, which the Full Court addressed ‑ and on this point the court was unanimous.  In the supplementary material that was sent up, your Honours, that appears under tab 1, but it expressly deals, at pages 4 and 5, with what 5(a)(ii) is left to deal with, and it says:

The definition in sub‑paragraph (a)(ii) caters for countries in which treaties have the force of law without the need for further legislative action in that country.  In respect of such countries the definition recognizes that certain extradition treaties require specified conduct ‑ 

I will not read it all – I will jump ahead to save time.  They say:

In such a case the definition waives strict compliance with the minimum penalty requirement but does so on the basis that the extradition treaties contemplated by the provision deal with serious crimes proscribed by multilateral conventions, for example, the conventions on genocide, hijacking and the taking of hostages.

That was clearly the intention.  We say it is in fact reflected in the terminology of 5(a)(ii), and our fallback position is, if there is any imperfection in the wording of 5(a)(ii), it does not bear at all on 5(a)(i) and it can be independently corrected.  The only other matter I want to put on that, your Honours, is, if I may ‑ ‑ ‑

GUMMOW J:   Just explain to me how the definition of “extradition offence” works in this case. 

MR NEIL:   Our submission is, under 5(a)(i), all you require is an offence which, as the Full Court described, is one being where the minimum maximum penalty can be imprisonment for not less than 12 months.  So that where, as here, on the evidence, under section 273 of the South African Criminal Procedure Act and on the evidence of the South African Attorney, Mr de Vries, the Attorney‑General for the State of Witwatersrand, the penalty for fraud in South Africa is at large.  It could be imprisonment for life.  There is evidence that it could be imprisonment for life. 

There is his further evidence that, on the facts of the matter before him, should the applicant be convicted – because he left during the course of his trial – if he returns and the trial continues and he is convicted, Mr de Vries says:

it is highly unlikely that a sentence of less than twelve (12) months imprisonment will be imposed –

We say we do not need that piece of evidence.  We say his evidence and the other material which establishes that the penalty at large can be imprisonment for life is a penalty the maximum of which is beyond imprisonment for a period of not less than 12 months.  We say it is just simply that simple, and you do not actually go to 5(a)(ii) at all.

Your Honours, may I just say this, so your Honours are plain as to our position ‑ your Honours may not need it.  We see no connection between the argument on the proper meaning of section 5(a)(i) and whether or not it falls to the Attorney‑General or the magistrate to determine whether the offence is an extraditable offence.

McHUGH J:   Well, we have not asked you about 1(b).

MR NEIL:   Yes, thank you.  Your Honour wanted to know about point (c), I think.

McHUGH J:   Yes.

MR NEIL:   In relation to equivalent conduct and double criminality, firstly, without sounding trite, we say this was dealt with in very substantial detail by both Justice James and the Full Court.  All of them were in agreement that you look for some correspondence; you do not look for exact elements.  I will see if I can identify a summary passage, your Honour, in our written outline, which seeks to encapsulate this.  I would like to commence, if I could, at page 242 of the application book and pick up a couple of my friend’s submissions while dealing with this.  Going to the heading:

The review mandated by s.21(1) – 

commencing at paragraph 27, we make the point that it is very relevant here, and this is a difference between this case and Pasini.  In Pasini, it was found that material was wrongly rejected.  There has never been any such finding here.  Justice James made no such finding, nor did the Full Court. 

So this is not a suitable vehicle, because if it went to the High Court for full consideration, we would be in a position that all the material – at least on the rulings below – had been rightly rejected, and it would not be an appropriate vehicle to try and resolve these issues.  I have summarised it, to the best I can, your Honour, on pages 242, 243 and through to the top of 244.  The key is probably in paragraph 30.

McHUGH J:   Yes, but we did not ask you for submissions on that ground.  I asked you on 1(a) and 1(c) on 222, the equivalent conduct point and the proper construction of “extradition offences”.  In other words, in the notice of appeal, it is grounds 2.1 to 2.3 and 2.5 and 2.6.

MR NEIL:   The essence of what we say is in paragraph 22 at appeal book 240.  The reasons we say that commence at paragraphs 20 and 21.

McHUGH J:   Your opponent says that the Full Court’s analysis is at such a level of abstraction that it deprives the dual criminality rule of any work to do.

MR NEIL:   One reason for that, as we understand it, is that it is put against us that there is no consideration by the Full Court of what were the acts or omissions said to amount to the conduct, but we say that is not correct.  Indeed, if one goes to the judgment of the Full Court ‑ I will just have to get this reference for your Honours ‑ at paragraph 77 at page 169 , just perhaps to go back one page to 168.  Mr Game took you to how the applicant characterises the conduct, and then he took you to how the second respondent characterises the conduct in paragraph 76.  Then the court at 77 said:

We have not set out the voluminous material in the supporting documents outlining the various acts and omissions of Mr Dutton in relation to the offences with which he has been charged.  However, we are satisfied that for “equivalent conduct” purposes those acts and omissions in their setting can properly be characterised in the way advanced by the second respondent.

So they looked at the specific material and came to that conclusion, which is mirrored in the conclusion that Justice James came to.  There was a lot of debate earlier – not relevant here – about what constituted the statement of conduct.  There is a very lengthy affidavit of Mr de Villiers, the prosecutor at the trial, and there is also a very lengthy indictment, and those documents are analysed in considerable detail in Justice James’ reasons.

What the Full Court were making plain was that these documents have been identified to us as the statement of conduct, they are the statement of acts or omissions and they are adequate.  They appear at appeal book 17 in paragraph 42, appeal book 20 to 22 and appeal book 85 to 86 in paragraphs 249 to 252.  So if one goes to the early part of the appeal book, for instance, at page 20, just by way of example, at the foot of the page, one sees ‑ ‑ ‑

McHUGH J:   Is this count 13?

MR NEIL:   Count 13, and that goes on for some pages.  Now, this affidavit is some 60 or 70 pages.  It is supplemented by the affidavit of Mr de Villiers, which puts everything into context, and those two documents were always advanced by South Africa, that is, before the

magistrate, before Justice James and the Full Court, as amounting to the relevant statement of conduct, all the way down, and there is no challenge here.  They have been found to have that character. 

It is a lengthy process to go through all of those documents, just from the physical viewpoint of reading what are said to be the acts of the applicant – in other words, the things that he did – but when you undertake that process, there is no doubt whatsoever, in our respectful submission, that what the Full Court said at paragraph 77 is completely correct.  All they did not want to do is to have to repeat 150 pages of material that was there in another form.

Now, we rely on that material in response to the submission put against us that the way the Full Court treated it was at a level of such generality that it is meaningless.  It is not, if you have an understanding of what the Full Court actually did and set out what they did.  It would have been pointless for them to regurgitate it all.

The other aspects we point to in relation to the way the criticism is to the extent that they are relied on as to the way the review was conducted ‑ as the Full Court point out, it was conducted according to an agreed procedure.  Now, there may be different comments in some of the cases about whether that will always be a suitable way of doing it in a particular case ‑ ‑ ‑

GUMMOW J:   You seem to be obsessed with getting back to what we ‑ ‑ ‑

MR NEIL:   I am sorry, your Honour, yes.  Your Honour, in relation to double criminality, it is perfectly plain what the Full Court unanimously said on that.  It is perfectly clear that there was a very large quantity of factual material which supported those conclusions.  So they are our submissions on double criminality.  Unless there are any other points, those are the second respondent’s submissions.

McHUGH J:   Yes, thank you, Mr Neil.  Yes, Mr Game.

MR GAME:   Put very briefly, we say that what appears at paragraph 76 is not the acts and omissions and the Full Court has adopted those as the appropriate characterisation.  We submit that characterisation and abstraction really play no part in the exercise, and we say that at paragraph 69 the Full Court is wrong in their approach.

As to the other question, I should have drawn your Honours’ attention to section 19(3)(c), which refers to “penalty applicable”.  We submit that that is also an indicator of the requirement for some certainty in

what it is that a person is being extradited for, and, on the respondent’s construction, the person would fall under (i) in any instance in which one could not say with any certainty as to what the penalty was, because ex hypothesi it could be greater than 12 months.  That is all I wanted to say in reply.

McHUGH J:   Thank you.  The Court will adjourn shortly.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM:

McHUGH J:   Yes, we are of the view that an appeal in this matter would have insufficient prospects of success to warrant the grant of special leave to appeal.  Accordingly, the application is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.23 AM THE MATTER WAS CONCLUDED