Hariwira v the Director of Public Prosecutions (Cth)

[2000] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Hariwira v the DPP (Cth) [2000] QSC 286

PARTIES:

HOANI HARIWIRA
(applicant)
v
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)

FILE NO/S:

SC 3505 of 2000

DIVISION:

Trial Division

DELIVERED ON:

28 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2000

JUDGE:

Chief Justice

ORDER:

1. Application dismissed.
2. Order confirming the order made by Mr Williamson SM on 10 April 2000 that the applicant is eligible for surrender in relation to these extradition offences for which his surrender is sought by the United States of America.
3. Applicant pay the respondent’s costs of the application to be assessed.

CATCHWORDS:

EXTRADITION – EXTRADITION TO AND FROM FOREIGN STATES – OTHER MATTERS – application for review of magistrate’s order that applicant is eligible for surrender in relation to extradition offences – extradition sought by the USA – whether dual criminality test satisfied – requirements of s19(2)(c) – whether reasonable grounds set forth for believing applicant committed these offences

Extradition Act 1988 (Cth) s 19(1), s19(2)(c), s 21(1)(a)
Migration Act 1958 s234(1)(b)

Bennett v Government of the United Kingdom [2000] FCA 916, referred to
Board of Trade v Owen [1957] AC 602, referred to
Jacobi v United States of America, unreported decision of Kiefel J, Federal Court, 8 November 1996, distinguished
Re Hamilton-Byrne [1995] VR 129, referred to
Riley v the Commonwealth (1985) 159 CLR 1, applied
Schoenmakers v Director of Public Prosecutions (1991) 102 ALR 437, referred to

COUNSEL:

A Maher for the applicant
G Rice for the respondent

SOLICITORS:

Forest Lake Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

1. de JERSEY CJ: The applicant applies under s 21(1)(a) of the Extradition Act 1988 (Cth) for review of an order of a stipendiary magistrate under s 19(1), made on 10 April 2000, that the applicant is eligible for surrender in relation to extradition offences. His extradition is sought by the United States of America, in respect of alleged offences of racketeering, visa fraud, alien smuggling, alien harbouring and money laundering conspiracy.

1. Very broadly, the allegations have the applicant as part of a group of persons effecting an unlawful scheme to recruit New Zealand and Australian citizens to work as truck drivers in the USA.   The applicant was the ‘recruitment director’ of the New Zealand office.  He and others assisted the drivers to gain entrance to the US by procuring visas based on false statements and supporting documents.  The scheme promoters employed the drivers on one year contracts and placed them with US trucking companies.  The trucking companies paid the promoters substantial sums for the services of the drivers.

1. The application for review was confined to the following two contentions:

1. that the so-called “dual criminality” test set up by s 19(2)(c) is not satisfied; and

2.          that the “description of the facts” provided under Article XI does not set forth “reasonable grounds” for believing the applicant committed these offences.

1. Section 19(2)(c) requires the court to be 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”.

1. Mr Maher, who appeared for the applicant, submitted, in essence, that one is obliged theoretically to transpose, to Queensland, what allegedly occurred in New Zealand.  Accordingly, one notionally places the applicant carrying out in Queensland what he allegedly did in New Zealand.  That would have him doing acts, here, directed to securing outcomes in the US which would contravene US law.  They would not, however, contravene Queensland or Australian law.  It is not contrary to Australian law, as an example, to deceive US authorities in relation to visa applications.  Mr Maher relied on Board of Trade v Owen [1957] AC 602, Re Hamilton-Byrne [1995] VR 129 and other cases confirming the inability of the courts of one country to try charges of offences allegedly committed abroad.

1. Mr Rice, who appeared for the respondent, of course accepted those authorities but submitted they were simply not relevant to this issue. Mr Rice submitted that the court must consider “the acts or omissions divorced from any geographical or jurisdictional nexus with the requesting country”. As an example, in relation to the visa fraud charges, one should consider, he submitted, whether such charges, if involving conduct in Queensland directed towards deceiving Australian immigration authorities, would relevantly breach Australian law – as of course would be the case (cf. s 234(1)(b) Migration Act 1958).

1. I accept Mr Rice’s submission.  In terms of authority, the issue is effectively determined against the applicant by Riley v The Commonwealth (1985) 159 CLR 1 at 8 per Gibbs CJ, Wilson and Dawson JJ:

“The reference in the subsection to an “equivalent act or omission” is to an act or omission which would be the same as the act or omission which is an element of the offence against the law of the foreign state were it not for the fact that the law of the foreign state requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign state.  For example, the act of importing narcotics into Australia is an “equivalent act” to the act of importing narcotics into the United States.”  (my emphasis)

1. The circumstance that the challenged conduct occurred in New Zealand, on which Mr Maher focuses, is ultimately of no moment.  Cases involving conduct in a “third country”, offending against the laws of another, and relied on in local extradition proceedings, which tend to support that view, are Schoenmakers v Director of Public Prosecutions (1991) 102 ALR 437, 442 and Bennett v Government of the United Kingdom [2000] FCA 916.

1. Mr Maher’s submission would unjustifiably divorce aspects of the applicant’s alleged conduct, taking place in New Zealand, from its impact, intended for the US. If the submission were valid, it would be difficult to comprehend how in situations like this extradition could ever occur. That is why, of course, s 19(2)(c) is cast in these terms, inviting reference to “equivalent conduct” within the local jurisdiction.

1. As to the second contention, the respondent relies on an affidavit by Theodore Carpenter.  Mr Carpenter refers, from page 9 of his affidavit, to information given by one Larkins.  Mr Maher relied on the circumstance that Mr Larkins was being processed by the US authorities as a deportable alien, and submitted that rendered his testimony doubtful.  Since Mr Carpenter refers specifically only to information given by Mr Larkins, and none of the some 70 other drivers, the applicant, Mr Maher submitted, “stands accused by a co-accused.  As such, the reliability of his account is therefore, in the absence of any supporting documentation before the magistrate from any other persons, very much in question.”  Mr Maher referred to Jacobi v United States of America, an unreported decision of Kiefel J in the Federal Court given on 8 November 1996. 

1. But Mr Carpenter presented the information given by Larkins (pages 9 and 10) as being illustrative of the information provided by all of the drivers (page 11).  Mr Carpenter refers, also, to a substantial body of inferentially supporting material, including documentary material (pages 3 and 4). 

1. This case is clearly distinguishable in this area from Jacobi, where the relevant information came only from a person with a lengthy criminal history (page 11), his version was described by the learned judge as “somewhat bizarre”, and it stood uncorroborated.

1. Neither of the applicant’s contentions is sustainable. 

1. There will be an order confirming the order made by Mr Williamson SM on 10 April 2000 that the applicant is eligible for surrender in relation to these extradition offences for which his surrender is sought by the United States of America.