McDade v United Kingdom and Anor P54/2000

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P54 of 2000

B e t w e e n -
STEPHEN GERARD McDADE
Appellant
and
UNITED KINGDOM
First Respondent
PETER MALONE
Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 23 OCTOBER 2000, AT 2.18 PM

MR E.P. AUGHTERSON: If the Court pleases, I appear for the appellant with my learned friend, MR K. BURGOYNE. (instructed by Kevin Burgoyne)

MR D.J. BUGG, QC: May it please the Court, I appear for the first respondent with my learned friend, MR P.N. BEVILACQUA. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: There is a certificate from the Deputy Registrar saying that he has had a letter from the second respondent to the effect that he does not wish to enter an appearance in this matter and will abide by the decision of the Court. Yes, Mr Aughterson.

MR AUGHTERSON: Thank you, your Honour. Your Honours, in essence it is our submission that if the first respondent is right in its position taken in this case, it would mean that in this country the principle of double criminality would not be determined by reference to principle, but would be settled according to the drafting of the statement of conduct in each particular case.

GLEESON CJ: I am just a little more interested in the position that you take at the moment, Mr Aughterson. Looking at the statute, as I understand it, the question that arises is one that concerns the application of section 19(3)(c)(ii), is that right?

MR AUGHTERSON: That is correct.

GLEESON CJ: And the issue is whether the document, which appears at page 184 and following of the appeal book, satisfies the description in section 19(3)(c)(ii), is that so?

MR AUGHTERSON: That is so, your Honour.

GLEESON CJ: And the only reason why it might not satisfy that description is if it were not a document:

setting out the conduct constituting the offence.

MR AUGHTERSON: As defined in section 10(2) of the Act, your Honour.

GLEESON CJ: Yes. So your submission is that the document at page 184 does not set out the conduct constituting the relevant offences?

MR AUGHTERSON: That is our submission, your Honour.

GLEESON CJ: And that is what this case is about?

MR AUGHTERSON: Yes.

GLEESON CJ: This is not a case, as I understand it - correct my if I am wrong - in which it is suggested that any of the offences alleged to have been committed by your client in the United Kingdom would not also constitute offences in Australia, if committed here?

MR AUGHTERSON: Our position is that we cannot tell from this statement.

GLEESON CJ: Cannot tell what?

MR AUGHTERSON: Our submission is that, for several reasons, the statement of conduct is such that it is impossible to tell which conduct relates to each of the 23 English offences.

GLEESON CJ: That may or may not be so, but is this a case in which there is any question about whether or not the alleged United Kingdom offences - if I can use that expression - would not also be Australian offences?

MR AUGHTERSON: Well, I go back to the position I was starting on. Your Honour, unless it is clearly set out in the statement which conduct relates to each offence, it is impossible to tell.

GLEESON CJ: Impossible to tell what?

MR AUGHTERSON: Well, it is our submission that you cannot take the statement of conduct collectively. Rather what must happen is that the conduct for each individual offence ‑ ‑ ‑

GLEESON CJ: We are not here dealing with a case in which somebody is trying to extradite a person from Australia to Saudi Arabia to face a charge of adultery.

MR AUGHTERSON: No, that is correct.

GLEESON CJ: What is alleged against your client is common or garden fraud.

MR AUGHTERSON: Well, it may well be, but with respect, your Honour, fraud is not necessarily the same in all countries.

GLEESON CJ: That is what I am interested to know; is there some relevant difference between the law of the United Kingdom and the law of Australia in relation to the offences allegedly committed by your client?

MR AUGHTERSON: Well, your Honour, with respect, that is not the correct question. There are different approaches taken in relation to double criminality in different countries. In those countries that take a more strict ingredients test, where one looks directly at the offences in each country, one can make that assessment, but the test that is adopted in this country is one based on conduct; it is a conduct test. What one does is not look at the - so we have been told in the decisions of the Federal Court - foreign offence at all but, rather, look at the statement of conduct ‑ ‑ ‑

GLEESON CJ: That might be an interesting question, but I am trying to understand how it arises in the present case. I could understand how a question such as that would arise in a case where the offence allegedly committed overseas does not match offences known to Australian law, but how does it arise in this case.

MR AUGHTERSON: Your Honour, it is not simply, in our submission, a question of whether an offence is of a type that arises under Australian law. If I can take your Honour to the supplementary material, and perhaps if I can explain myself this way, and this is an extract of the material from Bassiouni.

KIRBY J: Is that the Quebec case?

MR AUGHTERSON: No, it is not a case at all, your Honour; it is an extract from a book on international extradition by M. Cherif Bassiouni.

KIRBY J: Where do we find this?

MR AUGHTERSON: This starts at page 301 of the supplementary materials.

KIRBY J: What is the proposition before we plunge into the book?

MR AUGHTERSON: Well the proposition is this - and I was going to take your Honours to a couple of the decisions that are referred to in that extract that deal with cases where the offences were common in each jurisdiction. In one case it was perjury and in the other case it was a charge of false pretences, and yet, in each case, it was held that double criminality could not be established, because, even though the nature of the offences was the same in each jurisdiction, the conduct required to establish the offences in each jurisdiction was different. So it is not simply a question of whether or not the offence is of the same nature in the two jurisdictions; the question is whether the conduct in relation to one would be enough to establish criminality in the other States. For example, in Eisler’s Case - and this is at page 315 ‑ ‑ ‑

KIRBY J: Has that ever been held by this Court or do you say that is what the Federal Court decisions hold?

MR AUGHTERSON: I apologise, your Honour, I did not ‑ ‑ ‑

KIRBY J: There were two theories: one is that you look at the elements of the offence; the other is that you look at the conduct that makes up the offence.

MR AUGHTERSON: Yes, both of these cases, in my submission, were based on conduct.

KIRBY J: I realise that, but has this Court ever held that that is the test in Australia or not?

MR AUGHTERSON: The Federal Court in Zoeller -

KIRBY J: I realise that, but it has never come before this Court?

MR AUGHTERSON: It came before this Court in Riley’s Case, your Honour.

KIRBY J: And did it confirm the conduct as distinct from the elements test?

MR AUGHTERSON: There were two approaches taken in that case. The majority took the view, or implicitly, at least, took the view that the correct test is an ingredients test. In other words, one looks at the ingredients of the offences. That is implicit in the judgment. I am happy to take your Honour to that judgment. Justice Deane, in a separate judgment, which has been followed in subsequent Federal Court decisions, took a conduct approach and said the appropriate test is one of conduct.

GLEESON CJ: But Riley was a case where they were attempting to extradite a person to face a charge that was not known to the law of Australia. They were attempting to extradite a person to face a charge of racketeering.

MR AUGHTERSON: Yes, that is quite right, your Honour.

GLEESON CJ: But, the reason he lost in this Court was that one of the elements of the offence of racketeering in the United States would itself have constituted a crime in this country.

MR AUGHTERSON: Yes, your Honour.

GLEESON CJ: But how does that issue or problem relate to the present case, where your argument is, not that anybody, as I understand it, is trying to extradite your client to face an offence that is not known to the law of Australia or that is different from the law of Australia, but where your case is that a document did not set out the conduct alleged to constitute the offence?

MR AUGHTERSON: Your Honour, in my submission, again, the focus on the nature of offences is not the approach that has been taken in this jurisdiction or in other common law jurisdictions. Consistently, the focus is on the conduct constituting the offence and the question is not whether, with respect, the offences are of the same nature. There have been many cases dealing with double criminality where the offences have been established to be of the same nature and offences of that nature are recognised in the requested State and, nevertheless, extradition is denied.

HAYNE J: But if the elements of the offence in both States were identical, as may or may not be the case here, where lies the difficulty that we are now to grapple with?

MR AUGHTERSON: Well, the difficulty may rest, your Honour, in the word your Honour used “may”. It is not clear whether the elements ‑ ‑ ‑

HAYNE J: Well, the Theft Act of UK has been taken up largely, perhaps not entirely, for example, in the State of Victoria. If we were to come to the view that the elements of the offence in both States were identical, would there be a remaining problem under section 19(3)?

MR AUGHTERSON: There would be, in my submission, your Honour, because that is not the question that has to be asked, because ‑ ‑ ‑

GLEESON CJ: May I just interrupt you, you keep talking of “the question”. I thought you agreed a little earlier that the issue, and the only issue that arises in this case, is whether a certain document is a document that answers the statutory description of one:

setting out the conduct constituting the offence.

MR AUGHTERSON: Yes.

GLEESON CJ: What is the question to which you keep referring?

MR AUGHTERSON: Perhaps if I can go back a step, your Honour. There has been considerable debate in a number of jurisdictions as to how one approaches the question of double criminality.

GUMMOW J: Yes, that is right, maybe, but double criminality arises under section 19(2)(c), does it not?

MR AUGHTERSON: It does.

GUMMOW J: Well, this is not a 19(2)(c) case. This is a 19(2)(a) case.

McHUGH J: And if I might add, it is an invitation to error to use the term “double criminality”. What we are concerned with is a question of statutory construction and for my part I would find much more assistance if we concentrated on the words of the section and the facts of the case rather than descriptions used by other people in respect of general descriptions of extradition law.

KIRBY J: And I assume that this is an Australian statute which is fitting into a very large pattern of international practice and, as I remember, this statute followed some Commonwealth of Nations Agreement, did it not?

MR AUGHTERSON: Yes, it did, your Honour, and the wording of the legislation is consistent ‑ ‑ ‑

GUMMOW J: Not the 1998 Act. The 1966 Act did.

MR AUGHTERSON: Yes, your Honour, but the language used in this Act is for all intents and purposes identical to the language used in the earlier legislation.

GUMMOW J: I am not sure about that.

GLEESON CJ: But the only language that causes any difficulty is the words:

setting out the conduct constituting the offence.

Is that right?

MR AUGHTERSON: Yes, your Honour.

GLEESON CJ: That is the language. Now, what is the problem of construction of that language that you say arises in this case?

MR AUGHTERSON: Perhaps if I can take your Honour to the other provisions of the Act, commencing with section 10(2). Section 10(2) says:

A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

So the reference point is “the acts or omissions”, not the elements of the offence. Then in subparagraph (3) the Act says:

In determining for the purposes of paragraph 7(d), subparagraph 16(2)(a)(i) or paragraph 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions.

GLEESON CJ: Well, pausing there, is there any doubt in the present case that if the conduct alleged in the document at page 184 had occurred in Australia, it would have constituted a number of offences?

MR AUGHTERSON: I am happy to take your Honour to particular charges, but the first answer is that we do not know, because we do not know what conduct relates to charge 1, what conduct relates to charge 2, what conduct relates to charge 3, because it is all encompassed in one document.

GLEESON CJ: Now, if I may say so, with respect, I do not have any difficulty understanding that argument. That is an argument that the document, because of its particular terms and form, fails to comply with the statutory requirement.

MR AUGHTERSON: Yes.

GLEESON CJ: But I have a lot of difficulty understanding what that has to do with issues about the meaning of double criminality.

MR AUGHTERSON: Perhaps if I can continue with this provision, your Honour.

GUMMOW J: What, the 10(3)?

MR AUGHTERSON: Section 10(3)(b), where it says:

any difference between the denomination or categorisation of offences under the law of the country and the law ‑ ‑ ‑

GUMMOW J: Section 10(3)(b) is directed to 19(2)(c), is it not?

MR AUGHTERSON: Yes, your Honour.

GUMMOW J: Well, this is not a 19(2)(c) case.

MR AUGHTERSON: Well, with respect, your Honour ‑ ‑ ‑

GUMMOW J: It is a 19(2)(a) case. The particular component of (a) is (3)(c)(ii). Unless you grapple with that, this thing is not going anywhere.

MR AUGHTERSON: Your Honour, this is a 19(2)(c) case, because it involves the principle of double criminality. The document that was produced, and that is one of the difficulties in this case ‑ ‑ ‑

GUMMOW J: Your grant of leave is not concerned with that.

MR AUGHTERSON: Your Honour, the grant of leave relates to the validity of the statement in (3)(c)(ii). Unless that statement is valid, one does not even get to first base to look at 19(2)(c) in order to assess double criminality.

GUMMOW J: Quite. Well, why do we keep going to 19(2)(c)?

MR AUGHTERSON: Because the meaning, in my submission, the meaning that is to be given to the document in 19(3)(c)(ii), depends on the purpose for which it is produced. The purpose for which it is produced is to establish whether or not double criminality under 19(2)(c) can be established, but one needs to look at the purpose of the document and it cannot, in our submission, be simply looked at in isolation.

GUMMOW J: Now, the magistrate here was satisfied of 19(2)(c)?

MR AUGHTERSON: The magistrate does not seem to have ‑ ‑ ‑

GUMMOW J: The magistrate would have to have been.

MR AUGHTERSON: Well, the magistrate in the end appears to have focussed on the question of whether there was a prima facie case and the magistrate does not ‑ ‑ ‑

GUMMOW J: Well, that is another requirement, one that is introduced through the regulations.

MR AUGHTERSON: Yes, your Honour, but it appears from the judgment of the magistrate that though he touched on double criminality earlier on in his judgment, he does not actually seem to have returned to that to make a final determination and, if I can take your Honours to ‑ ‑ ‑

GUMMOW J: No, but you have no grant of leave to agitate any such question.

MR AUGHTERSON: Well, I was responding to the question your Honour asked and ‑ ‑ ‑

GUMMOW J: Yes, but you would have to be to make the orders and we are to assume that is so. That is all I am putting to you. You may be right that you have to construe 19(3)(c)(ii) in a particular way because of the particular operation it fulfils in the scheme of the Act, but that is a question of construing it. You will not construe it by going to Quebec.

MR AUGHTERSON: Well, except, your Honour, that the wording of the treaty in that case that was considered by the Court of Appeal in Quebec was in the same words and the same language as appears in section 10(2) of the Act or in 19(3)(c)(ii).

GUMMOW J: Yes, all right. I will not say anything.

GLEESON CJ: What is it about the document at page 184 that means that it fails to set out the conduct constituting the alleged offences? Could you give us your best and most glaring example of the respect in which it falls short of that requirement.

MR AUGHTERSON: Very well, your Honour.

KIRBY J: Can I just understand the bottom line of what your submission is? Is the bottom line that the Act by its language and the context of international extradition law, requires specificity of conduct directed to particular charges and that a practice has grown up, evidenced in this case, of lumping in great masses of evidence and material which are not particular to the charge in respect of which extradition is sought and because a lot of consequences may attach down the line to those charges, that you cannot just lump in all the evidence and material? You have to be specific as to the elements of the offence and the conduct that is relied on particular to the charge. Is that the realm in which your submission is being advanced or not?

MR AUGHTERSON: Yes, your Honour; that very precisely is the case.

GLEESON CJ: Well, my question to you, what is the best and most glaring example that you can give of the respect in which this document fails to set out the conduct constituting the alleged offence?

MR AUGHTERSON: If I can take your Honours to the appeal book page 194, I can show your Honours two or three. In conjunction with that, this deals with charge 4, and if I can take your Honours to ‑ ‑ ‑

KIRBY J: Where do we see in this document that it deals with charge No 4? It just seems to be a whole long narrative at large.

MR AUGHTERSON: What I should have said in relation to that, your Honour, is Justice Carr made determinations as to which, in his Honour’s view, paragraphs related to which offences. So what I am proceeding on here ‑ and I should have perhaps taken your Honours to that first, and this appears at page 253 to 254 of the appeal book, in paragraph 36, starting on page 253 and going over to 254. His Honour sets out what he says are the relevant paragraphs for each offence and in relation to ‑ ‑ ‑

KIRBY J: But why should a judge be doing this sort of parsing and analysis of a document which is in the hands of the executive government, or the applicant from a foreign country, knowing our practice and knowing international practice, ought to do this with specificity and clarity for itself? I thought that is why you got special leave. I thought we came to Perth to consider whether that is required or not. Now, am I right or wrong?

MR AUGHTERSON: Yes, that is a very important issue ‑ ‑ ‑

KIRBY J: And here is Justice Carr, a busy judge of the Federal Court, doing for his part in the judicial branch of government a specification of what he takes to be the matter that supports particular charges being put forward by an applicant for extradition, a very serious intervention in the life of an individual under the protection of Australian law. There is a real question in my mind as to whether that is a proper requirement to impose on a judge or whether, if the applicant does not do that, well, they have not conformed with our statute and they have not conformed with international practice. I thought that is what we were here to talk about.

MR AUGHTERSON: Well, that is, indeed, our submission, your Honour, that the learned judge should not have done that.

KIRBY J: Anyway, back to paragraph 36.

MR AUGHTERSON: If I could take your Honours to the top of page 254 ‑ ‑ ‑

GLEESON CJ: Just before you do that, I notice the second sentence in paragraph 36. Justice Carr said he found this “relatively easy” to do.

MR AUGHTERSON: Yes.

KIRBY J: The third paragraph goes on to talk of some difficulties, but why should he have to face any difficulties and why should there be any doubt?

MR AUGHTERSON: Well, he reflects some doubt in the middle of that paragraph on page 254.

KIRBY J: The magistrate refused to extradite on the first offence, did he not?

MR AUGHTERSON: That is correct, your Honour.

KIRBY J: Was that on this basis?

MR AUGHTERSON: It was on the basis of lack of prima facie case.

GLEESON CJ: I thought there were a number of offences on which the magistrate ‑ ‑ ‑

MR AUGHTERSON: There was No 1 and Nos 20 to 23.

GUMMOW J: They are the conspiracies, are they not?

MR AUGHTERSON: Yes, your Honour.

GLEESON CJ: Once again on the same basis, that is, lack of a prima facie case?

MR AUGHTERSON: Yes, it was not a prima facie case. On page 254, about 12 lines down after reference to “charge No 8”, his Honour says:

There may be some other paragraphs in the Statement which, under English law, constitute part of the charges.

In relation to charge 4, that is addressed on the third line. Charge No 4, his Honour suggests that paragraphs 72 to 74 ‑ ‑ ‑

McHUGH J: No, 64 to 67.

MR AUGHTERSON: Sorry, I apologise, 64 to 67 relate to that particular offence. Now, those paragraphs appear at page 194 of the appeal book.

KIRBY J: Where do we find the charge first?

MR AUGHTERSON: The charge for that is on page 5 of the appeal book. Now, your Honour will see that charge 4 deals with an event on 18 June 1991 and with property valued at ^367.70. If one goes to the paragraphs singled out by his Honour, 64 to 67, in paragraph 64 there is reference to different products and in charge 4 on page 5 there is reference to:

one SCM Word Processor, one Gazelle stapler and one packet of staples, valued together at ^367.70 –

On paragraph 64 there is a reference to:

two artificial plants to the value of ^224.61.

GLEESON CJ: That is leading up to 60 – the relevant amount of money is the £367.70, I presume.

MR AUGHTERSON: Yes, your Honour, and then paragraph 65, which does deal with that sum, but it does not say that it was taken in the false name. It says, “McDade placed a second order”. It does not say the second order was placed in the name of Seaborn which is ‑ ‑ ‑

McHUGH J: But in the previous paragraph, it says “McDade, using the name Seaborn, contacted the company”.

MR AUGHTERSON: It does not necessarily follow. It deals with a different date, a different time. It does not necessarily follow, in my submission, that on both occasions he used the same name and it does not say what happened to the goods. It says they were despatched, but it does not say to where they were despatched or who got them.

GLEESON CJ: Now, there is a reference to a statement of Ms Jayne Law. As I understand it, one of your arguments is that it is not permissible for a cross‑reference of that kind to be made. Just assuming for the moment, against that argument, that it is possible to incorporate by reference a statement of Jayne Law, what, if any, light does that throw on this matter?

MR AUGHTERSON: In that particular one, unfortunately, is not one of the statements that is included in the appeal books ‑ ‑ ‑

GLEESON CJ: I messed up one of the cross‑references.

MR AUGHTERSON: I cannot take your Honour to that, I am sorry.

GLEESON CJ: All right.

MR AUGHTERSON: So I do not know whether or not it does. If I can take your Honours ‑ ‑ ‑

HAYNE J: I am sorry, can I just understand the import of that, Mr Aughterson, because it seems somewhat startling. I understand you to be submitting to us that if you go to paragraph 64 to 67, you find a disconformity between those paragraphs and the charges and we are, apparently, to find that disconformity without regard, you say, because we cannot have regard to the statement of Ms Law, but were we to be against you on that, we are to find that disconformity notwithstanding that we do not have this statement. Is that so?

MR AUGHTERSON: Well, in this particular instance, regretfully, that is the case, your Honour. There are other examples where the attachments are present and I can take your Honour to those other examples. If I can refer your Honours to ‑ ‑ ‑

GUMMOW J: Just help me with this. This Act will apply in relation to countries that do not have a common law system – is that right ‑ which will not have charges as we understand it.

MR AUGHTERSON: They may not, your Honour.

GUMMOW J: No. Why is not what under our system is set out under each charge the conduct constituting the offence for the purpose of the Act and all this other material goes to the prima facie evidence, does it?

MR AUGHTERSON: I am not quite sure I understand your Honour’s question.

GUMMOW J: Go to page 4 and thereafter. Under each charge, in accordance with our system, these factual matters are set out.

MR AUGHTERSON: Yes.

GUMMOW J: Right. Why are they not the conduct relevantly constituting the offence and all this other volume of material, material going to the requirement of prima facie evidence? In other words, this phrase in the Act, “conduct constituting the offence”, has to encompass legal systems that will not have charges like we do.

MR AUGHTERSON: No.

GUMMOW J: They will just specify.

MR AUGHTERSON: But in the context of our legislation that is expressed in terms of conduct and the Federal Court has drawn a distinction, on several occasions, between a statement of conduct and a simple statement of the charge, that there is a difference. For example, in charge 2, that the word “steal” is not necessarily of assistance because that word can have different meanings in different jurisdictions. The difficulty with this schedule of charges is that it does not set out conduct. It sets out the charges.

KIRBY J: If the Parliament had meant simply the charge, it could have said simply, “set out the offence”.

MR AUGHTERSON: Yes.

KIRBY J: So the addition of the words “conduct constituting” is obviously meant to have some additional force.

MR AUGHTERSON: Yes, your Honour.

McHUGH J: But it does. Charge 4, for example, does more than set out the offence, does it not?

GUMMOW J: And charge 9, for example, gets on and so forth.

MR AUGHTERSON: In charge 4 it has, for example, the word “dishonestly”.

McHUGH J: But it sets out the detail. I mean, the offence may be “a person shall not steal property”. That is the offence. This shows what the particular conduct is, or these charges show what the particular conduct is, falsely represented and ‑ ‑ ‑

MR AUGHTERSON: It may. For the purposes of this appeal, your Honour, we do not know because the requesting country did not rely on this as the statement of conduct and has given no assurance that this does represent the statement of conduct constituting the offence. That is not the document relied upon. The document relied upon is the statement of Inspector Cook.

KIRBY J: How do we know that as a matter of fact in the case? Just tell me. You do not have to ‑ ‑ ‑

MR AUGHTERSON: It was agreed by both parties and accepted by his Worship.

KIRBY J: So the document which is at 184 is the conduct relied upon by the United Kingdom?

MR AUGHTERSON: Yes, your Honour, and that was accepted both before the magistrate and also in the Federal Court.

GLEESON CJ: Sometimes, Mr Aughterson, conduct is analysed at different levels of abstraction. Sometimes it might be analysed at the level of the essential factual ingredients of a crime. Sometimes it might be analysed at the level of particulars of the alleged ingredients of the offence and sometimes it might be analysed at the level of evidence. Which is the relevant level in your submission for considering section 19(3)(c)(ii)? Are we concerned with the essential factual ingredients of an offence, or are we concerned with particulars, or are we concerned with evidence or might there be some combination of the three?

MR AUGHTERSON: Our submission is the first, your Honour, that we are concerned with the conduct that is germane and central to the ingredients or elements of the offence.

GLEESON CJ: Well, that would appear to be what is set out on page 4 and following.

MR AUGHTERSON: To some extent, your Honour, yes, it does, but in other ways it does not set out simply ‑ ‑ ‑

GLEESON CJ: A possible point of view is that, on that approach, the conduct or the allegations on page 4 go too far. Why, for example, do you have to identify the value and, if you do not have to, why is it permissible?

MR AUGHTERSON: It may well be that the value may be relevant to the penalty because there has to be an offence carrying a penalty of one year.

GLEESON CJ: Is it your submission – I though I had a hint of this in the written submissions – that a statement in writing under 19(3)(c)(ii) must not go beyond the minimum requirement?

MR AUGHTERSON: Yes, your Honour. It must not go beyond the conduct necessary to constitute the offence.

GLEESON CJ: Why is it an element of the conduct necessary to constitute the offence referred to in charge 4 that the value of the property was £367.70?

MR AUGHTERSON: It may or may not be, your Honour, but there is an additional requirement that it be an extradition offence. It may not be an extradition offence unless it involves stealing a property above a certain level. But that would go to that separate issue.

KIRBY J: Anyway, what you have come to meet in the Federal Court and here, and before the magistrate, is a contention that the document at 184 is the statement and the peril for your client, as I understand your argument, is lump in a lot of evidence, lump in a lot of material, and you are at great risk in the country that requests extradition to be dealt with over there on a whole range of material that may come within the lumped‑in generalities which you would not be at risk of if, before you were extradited from Australia, the matter, and only the matter on which you could be dealt with in that country, was specified with clarity, particularity, and set out the conduct only on which there would be reliance.

MR AUGHTERSON: Yes, that is our position.

GLEESON CJ: What is your best example of a lumped‑in generality?

MR AUGHTERSON: If I can go to ‑ charge 11 to 13 is one possible – this appears at appeal book 196 to 197. His Honour found that paragraph 78 to 81 related to those three charges. I will take your Honour to charges 11 to 13. Charges 11 to 13 deal with dishonestly obtaining property from Office International and there is various property listed under each of the charges. If one goes to 78 to 81, there is no direct correlation between the money amounts referred to in the statement. There is nothing in the statement to suggest that the orders were not properly made. There is nothing even in there to suggest that they were obtained by the applicant.

KIRBY J: Where are you reading from now?

MR AUGHTERSON: If I can take ‑ ‑ ‑

McHUGH J: What about paragraph 79? It says “McDade, using the name Steve Seaborn”.

MR AUGHTERSON: Yes, “asking for price quotes for specific equipment”. So he received certain advice. At paragraph 80, it says, at the bottom:

These deliveries were made by Tuffnells Parcels Express and were both signed for by C. Louden at Bladon Lines.

GLEESON CJ: Yes, and that is where he was working.

MR AUGHTERSON: So there is no suggestion that they were obtained by Mr McDade.

GUMMOW J: Look, all of this may or may not – this document we are poring over, starting at 184, is headed “Summary of Evidence/Allegations”. All the points you are making may go to the issue that arises under 11(5), namely, the “sufficient evidence” test.

MR AUGHTERSON: Yes, and, indeed ‑ ‑ ‑

GUMMOW J: That is not what we are talking about here. We are not talking whether the “sufficient evidence” test was or was not made out. That is not your grant of leave.

MR AUGHTERSON: But they have to show, your Honour, that the conduct would constitute an offence in this country for the purposes of double criminality.

GUMMOW J: That is what 19(5)(a) is talking about if one looks at it. I would advise you to do so.

MR AUGHTERSON: That is what section 19(3)(c)(ii) is directed to:

a duly authenticated statement in writing setting out the conduct constituting the offence.

It is on the basis of that statement that one makes an assessment of double criminality.

GUMMOW J: You keep looking at 19(3). I wish you would look at 19(2), plus the regulations. The effect of the regulations is that the documents under 19(2)(a) have to include documents that allowed a “sufficient evidence” test to be satisfied. That is what the United Kingdom was attempting to do in this long document at 184.

MR AUGHTERSON: Yes, and, arguably, it is not a statement of conduct and it was never designed as a statement of conduct constituting the offence. It was designed and served for a quite different purpose.

GUMMOW J: What I put to you is you find the setting out of the conduct constituting the offence and the charges.

MR AUGHTERSON: But that is not the statement that is relied upon by this ‑ ‑ ‑

GUMMOW J: You keep saying that. The relevant extradition material is at page 1. That is what the United Kingdom requested.

MR AUGHTERSON: The document relied upon, your Honour, and accepted by the first respondent, the document they said that they rely upon and the document to which the appellant responded, was this document.

GUMMOW J: If that is right, this case has gone completely off the rails in my view.

McHUGH J: Absolutely. In fact, I do not think there is any special leave point in this case. I mean, you had special leave on the 19(3)(c)(ii) point. The point was whether there was:

a duly authenticated statement in writing setting out the conduct constituting the offence.

That is the only issue in the case.

MR AUGHTERSON: Yes.

McHUGH J: It has nothing to do with any of these other points you are seeking to raise. You are attempting to conduct this appeal as if you had leave on a number of other grounds.

MR AUGHTERSON: The basis for submission, your Honour, is that the statement must include certain conduct and it is our submission it does not.

McHUGH J: No, all it has to include is “conduct constituting the offence”. Now, it may or may not be good in law, but that is the conduct set out here that is alleged to constitute the offence. If you say it is insufficient, then it is a section 11 point.

MR AUGHTERSON: The alternative argument, your Honour, is that even if it can include additional material, even if one does not look at that, then it is impossible in this case, because of the way this document has been drafted, to tell which conduct relates to which offence.

KIRBY J: Could you tell me this ‑ two questions. First of all, when you look to whether it constitutes a criminal offence in this country, how does one do that given that Australia is a federation and criminal offences – is it enough that it is a criminal offence somewhere in Australia or what have the courts held on that? Does it have to be a criminal ‑ ‑ ‑

GUMMOW J: It is what 10(3) says, which you took us to, any part of Australia.

MR AUGHTERSON: In the part of Australia where the extradition proceedings have been held.

GUMMOW J: Justice Hayne referred you to the Theft Act in Victoria, which is a rather uncomfortable example for you.

MR AUGHTERSON: No, your Honour, because in this case this extradition hearing was held in Western Australia, so the question is whether it is an offence in Western Australia, not, with respect, whether it is an offence in Victoria or somewhere else.

GUMMOW J: Where do we see that?

MR AUGHTERSON: That appears in ‑ ‑ ‑

GUMMOW J: You may be right, but I would just like to see it.

MR AUGHTERSON: That appears from section 19(2)(c):

the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct ‑ ‑ ‑

McHUGH J: But that is the point, is it not? You have no leave to argue that point.

MR AUGHTERSON: No, with respect, I am not arguing that point, your Honour.

McHUGH J: I know. Well, you seem to be.

KIRBY J: No, I think, in fairness, you were answering a question that I asked to clarify how one works that out in Australia.

MR AUGHTERSON: Yes.

KIRBY J: My second question is, from your knowledge of extradition practice, is the assertion that you are putting forward of your construction, leave aside any nuances that may appear in the extradition statute, is that the practice in other jurisdictions? Do any other jurisdictions of the Commonwealth of Nations insist upon specifying with particularity to the particular offence the conduct that is relied on?

MR AUGHTERSON: The problem does not much arise in other jurisdictions, your Honour, for this reason: there is not a tendency to require the production of an extra additional statement of conduct constituting the offence. That is something that Australia requires. The tendency in other jurisdictions is to look to the warrant itself and if I can perhaps ‑ ‑ ‑

KIRBY J: So you do not get into any of these issues.

MR AUGHTERSON: You do not get into this issue.

KIRBY J: The issues you are arguing before us are issues that you say arise from the fact that our Parliament added this additional provision.

MR AUGHTERSON: Yes.

McHUGH J: That is why I said to you at the beginning of your argument that you have to concentrate on the statute.

MR AUGHTERSON: Yes. In the decision United States v Manno, which is in additional materials at page 182, in the middle of the page at d, when the court in that case was looking at the relevant conduct and the Canadian courts also look at the conduct ‑ ‑ ‑

KIRBY J: That would be the equivalent to page 4 or 5 of our appeal pages. You would simply look at the charges, the warrant.

MR AUGHTERSON: Yes, that is right:

At the outset, the extradition judge must refer himself to the foreign arrest warrant in order to identify the conduct with which the fugitive is charged and thereby establish the limits of his jurisdiction.

GLEESON CJ: This is maybe where we came in, but we are not here dealing with a case where there is any material difference between the law of the United Kingdom or the law of Australia, are we?

MR AUGHTERSON: No, your Honour.

GLEESON CJ: So provided there is sufficient identification of the alleged United Kingdom offences, there is no problem of double criminality in this case. If he had done in Australia what he is alleged to have done in the United Kingdom, he would have broken the law of this country. There is no question about that.

MR AUGHTERSON: Providing that, in a sense, the elements are exactly the same, and that was not something that was looked at.

GLEESON CJ: Provided we know with sufficient particularity what offence he is alleged to have committed in the United Kingdom, there is no problem. Or to put it another way, if your client has a legitimate grievance here, it has to be because there was insufficient identification of the alleged offences in the United Kingdom, that is to say, there was a failure to set out the conduct constituting the alleged offences.

MR AUGHTERSON: Yes, your Honour.

GLEESON CJ: Which is only another way of saying that the procedure that has been followed in the present case does not adequately identify what your client is alleged to have done wrong.

MR AUGHTERSON: Yes, in relation to each offence.

GLEESON CJ: Yes.

KIRBY J: But Justice Carr said he did not find it all that difficult to marry up the statements of conduct which are contained in the document relied on by the United Kingdom. You have the charges which set out the provisions of the Theft Act. You have there what would in the United States, apparently, be sufficient to compare United States law and ‑ ‑ ‑

MR AUGHTERSON: United States law.

KIRBY J: Yes, the case you took us to about the warrant.

MR AUGHTERSON: Yes.

KIRBY J: You have the short statement of the conduct. You have the provision of the Theft Act which is not all that difficult for you to look up. You have statements which, on the face of things, in the document starting at 184, once you do marry them up maybe you have a legitimate complaint that that had to be done by a judge and was not done, set out in a form. But once it was done, you have statements which are either good or bad, but for the purpose we are concentrating on, whether it sets out the conduct relevant to the offence, it may not be able to be proved in the United Kingdom, but for the purpose we are concerned with, extradition purpose, it does seem to set out the conduct that is relied on by the United Kingdom.

It does not seem to set out superfluous matter which render you liable to prosecution in the United Kingdom of another offence because they have identified the conduct; they have identified the statute; they have identified the provision; they have identified the charge; so you are not really liable to the risks of double criminality. So I do not really see quite what the problem is.

MR AUGHTERSON: There is also a problem of speciality because there is also a right to prosecute on return for any offences arising ‑ ‑ ‑

GUMMOW J: That was given, was it not? That is on page 1.

MR AUGHTERSON: Yes.

KIRBY J: You are slipping your ground now. At the moment we are dealing with the complaint about double criminality. So far as that is concerned, I can see your complaint that the United Kingdom has a neatly put sub‑heading, count 4, count 11. I can understand that, but Justice Carr said, “Do not worry too much about that. I have sorted all that out”. So I am keen to understand. I regard extradition law as law that has to be dealt with with precision and care and accuracy, as an oppression, but there does not seem to be a problem in your particular case.

If it were Saudi Arabia, and if it were adultery, a different problem. But in the United Kingdom with the Theft Act, these provisions, these facts, I just do not see that the case tenders a real controversy for the Court and, if it does, I would like to know it, because I will then look at it, but otherwise it seems not to be a vehicle to tender a controversy.

MR AUGHTERSON: I suppose the first answer to that, your Honour, is that the principle that is established by this case, of course, will apply to all countries, whether or not ‑ ‑ ‑

KIRBY J: Yes, but you generally like to have a case where there is a real element of actuality about it. Here, you have the charge, you have the statute, you have the facts, and there does not seem to be any real actuality. If you obtain goods by deception in Australia, that is an offence. If you obtain them in the United Kingdom, apparently under the Theft Act it is an offence, and the sort of Acts that are set out in the document starting at 184 are classic obtaining by deception.

MR AUGHTERSON: Your Honour, it may well be that at the end of the day, if this document had been properly prepared, that offences may have been established. They may not. The point is the Court is left to speculate.

GLEESON CJ: What has been put to you for your comment, Mr Aughterson, is that it is not our function to write essays on the principle of double criminality.

MR AUGHTERSON: No.

GLEESON CJ: We seem to be having some difficulty at the moment relating the facts and circumstances of the present case to any serious issue about the construction of this statute.

MR AUGHTERSON: The statute requires, your Honour, that the requesting State provide a statement of the conduct constituting each offence. It is our submission that they have not done it.

HAYNE J: Can I put to you three propositions which I think have emerged in the course of debate? One, if the appellant committed the offence as alleged in the counts attached to the warrant at pages 4 and following of the appeal book, he would, in each case, commit an offence against Australian law. I understand you to have accepted that that is so.

MR AUGHTERSON: No, your Honours, that has not been accepted. The matter was not contested. It was not an issue raised before the magistrate, or before the Federal Court. It was not a matter raised by the first respondent.

GLEESON CJ: Pick one of them. You select any one of them and tell us which one would not have constituted an offence against Australian law, as done here?

MR AUGHTERSON: Well, your Honour, there are two answers. One is that they do not completely set out conduct as required by the Act, and if one is to interpret the Act, the Act requires a statement of conduct, not a charge, a statement of conduct. These offences do not set out ‑ they may in part ‑ they do not set out conduct. The second point is, unless one is to go back now and do what maybe should have been done before the magistrate and to analyse each of these, with a copy of the Western Australia Criminal Code in one hand and this in the other, one may be able to make that judgment from the Bar table. I do not know and I cannot say emphatically whether it does or does not.

In any event, this document at page 4 and following is not the document relied upon in these proceedings. It would be now prejudicial to the appellant before the High Court for the first respondent to change horses and, in effect, to say, “Well, we are no longer relying on the document relied on before the magistrate in the Federal Court. We are now relying on a different document”.

KIRBY J: In fairness, I do not think the United Kingdom has done that. You are being given three propositions and you have answered the first, but Justice Hayne has two more obviously.

MR AUGHTERSON: Yes.

HAYNE J: I understood your principal complaint to be that the offences alleged are not specified with sufficient particularity.

MR AUGHTERSON: Yes, your Honour.

HAYNE J: And that the third proposition is that the lack of particularity lies or is evidenced by an inability to identify what parts of the document you say was relied on below reveal the evidence in relation to each of the 20‑odd counts annexed to the warrant.

MR AUGHTERSON: Yes, your Honour, and taking ‑ ‑ ‑

HAYNE J: That presupposes that the counts identified in the warrant give you a beacon by which you can steer by. Do you accept that that is so?

MR AUGHTERSON: No, your Honour, because there is reliance here, not only on that statement, but also on a range of other depositions, and, at times, there is not even cross-referencing. If I can give an example of that. Justice Carr relies on paragraph 56 of the statement to substantiate charge 16. Now, his Honour, when a question was raised as to the inadequacy of that particular statement or that particular paragraph – this is at page 255 to 256 of the appeal book – his Honour supplemented that statement with the deposition of Hutley and yet Hutley is not even referred to at paragraph 56, so one would have to go on an excursion through all the depositions.

First of all, one would have to determine that paragraph 56 related to charge 16 and then one would have to go through the many depositions that were produced to ascertain that one should also look at the deposition of Hutley, and that is what his Honour did and, in our submission, it is quite unreasonable and untenable that that process should be undertaken.

KIRBY J: Now, on the first point that you raise, if there had been a heading above 56, “Charge 16”, you would not have had a complaint, would you? It is really just a setting‑out problem. After all, let us get a little bit real here, it does refer to rights to Makro Ltd.

MR AUGHTERSON: Yes.

KIRBY J: Then you look into charge 16, there is Makro Multi Trade Centre. It is no big leap of the mind or a lot of trouble to identify the concordance of those two provisions.

MR AUGHTERSON: No, your Honour.

KIRBY J: So your second point is that you should not have to go outside the statement into evidence in order to give content to the statement. Who is Mr Hutley and where is his statement?

MR AUGHTERSON: His statement ‑ ‑ ‑

HAYNE J: Page 38, corrected at page 43.

MR AUGHTERSON: Thank you, your Honour. There is nothing in that paragraph to indicate that one should have proceeded directly to Mr Hutley’s statement in order to ‑ ‑ ‑

KIRBY J: Now, my understanding is that in the past, the complaint of the accused was often that they did not have enough material. You are complaining you have too much material. Here is Mr Hutley, who is an officer of Makro, which is one of the alleged victims, who sets out the detail of the offence. Now, I do not quite understand why that, if it is cross‑referred to – if, for example, it had been referred to in 56, “see statements of Mr Hutley, Annex 5 and 7 hereto”, you could not really have had a complaint then.

MR AUGHTERSON: If it provided that, it is more difficult, obviously, to make complaint, but ‑ ‑ ‑

GUMMOW J: What has happened in this case, I think, is the only ground of review that you were urging before Justice Carr was the one you have urged here and you were able by that means to get some wind in your sails by looking at all this other material. You made no complaint about the “sufficient evidence” test as a ground of review, did you?

MR AUGHTERSON: No, your Honour, no.

GUMMOW J: No.

McHUGH J: That is the whole problem of the case. When you start off with 19(2) and it says that to be eligible for extradition certain conditions have to be satisfied. Number (a) is:

the supporting documents in relation to the offence have been produced to the magistrate;

“supporting documents” is defined in subsection (3) and it is:

a duly authenticated statement in writing setting out…..the offence.

Now, that is the only issue that you have leave on and it seems to me it would not matter if they had said the conduct was that he had used false names and he was a person of general bad character or reputation. It would still comply with (c). It may not comply with 11(5). It may not comply or enable (2)(c) to be satisfied, but it seems to me that your hands are tied in this, Mr Aughterson.

MR AUGHTERSON: Your Honour, it is our submission that you cannot read 19(3)(c) in a vacuum.

McHUGH J: I know. I know you want to argue that, but it seems to me that the country seeking extradition states its case and stands or falls by it; and if it is inadequate, then it will go down - if 11(5) applies, it will go down on that, it may go down on 19(2)(c).

KIRBY J: What is wrong with that proposition from the point of view of extradition? It seems a correct construction of the Act. What is the problem for your client or generally?

MR AUGHTERSON: The problem for my client, your Honour - there are two problems with this statement as far as his rights are concerned. One is in relation to speciality because this statement affects not just double criminality but also speciality, is that if he were surrendered ‑ ‑ ‑

GUMMOW J: No, just wait a minute. Speciality comes into matters at a much later stage, does it not?

MR AUGHTERSON: Yes, your Honour, but ‑ ‑ ‑

GUMMOW J: The Attorney‑General’s problem under section 22, if we get to that stage.

MR AUGHTERSON: It is, it is, your Honour, but under the terms of section 22, if I can take your Honours ‑ ‑ ‑

GUMMOW J: We are nowhere near that stage yet.

MR AUGHTERSON: Section 22(4)(d)(ii) - - -

GUMMOW J: All I am putting to you is magistrates are not concerned with that question. The Act is very carefully drawn that way, and it comes into play when matters have got to the time of consideration by the Attorney. This Court said so, it said so in Kainhofer actually.

MR AUGHTERSON: Yes, your Honour. That is not disputed, but the point is ‑ ‑ ‑

GUMMOW J: Why are you trying to rely on it now?

MR AUGHTERSON: Because the term “conduct constituting the offence” must be given meaning and, again, it has to be given meaning by the context of the purpose why the statement is produced.

GUMMOW J: The question for the Attorney will be whether a speciality assurance has been given, et cetera. It has been, actually, we know from the text at pages 1 and 2.

MR AUGHTERSON: Yes, and when the person is surrendered to the foreign State, they are liable to be prosecuted for any conduct constituting the offence, and the requesting State ‑ ‑ ‑

GUMMOW J: Now, if the person goes back and that is not honoured by the requesting country, that is a matter of international relations between the two countries.

MR AUGHTERSON: But the requesting State will say, your Honour, that it has been honoured because an Australian court accepted that statement as a valid statement of the conduct constituting the offence.

GLEESON CJ: No, they accepted the statement and read it in the light of the schedule of charges and that is the answer that was given to this argument when you raised it in the Federal Court, that if a problem arises about speciality, the content of that schedule of charges will be material. Now, what is wrong with that as a response when made by the Federal Court?

MR AUGHTERSON: Because it will be a nice question when it is before some foreign court, and this is argued before a foreign court as to what charges may be prosecuted. It will be a nice question as to what is the conduct constituting the events.

KIRBY J: It might be in another case, but here you have the charges and it refers specifically to a subsection of the Theft Act. That deals with an area of the law with which, as it happens, Australian law is quite familiar and where it is very similar and in one State of Australia, apparently, almost identical. But even in Western Australia with the Code, it would be very similar. So, I just do not see that that is a practical problem in your case.

MR AUGHTERSON: There are a number of examples, for example, paragraphs 38 to 39 of the statement of conduct which appear at the appeal book on page 190 which clearly referred to offences and, yet, they are not among the paragraphs singled out by Justice Carr as pertaining to any of these charges.

KIRBY J: If that is so, then your client has not been extradited on conduct contained in those paragraphs.

MR AUGHTERSON: But it comes back to the question, your Honours, what is meant by the conduct constituting the offence? An Australian court has said that this is a statement of the conduct constituting the offence.

HAYNE J: But the offences for which the magistrate found your client eligible for surrender were specified, were they not?

GUMMOW J: Page 232.

MR AUGHTERSON: Yes.

HAYNE J: They were specified by reference to the list of charges annexed to the warrant, is that right?

MR AUGHTERSON: Yes, your Honour.

HAYNE J: Is there any doubt about what the surrender offences are?

MR AUGHTERSON: No, there is no doubt about the surrender offences, your Honour, but under the speciality principle, there are two types of offences for which one can prosecute. One is the surrender offences and there is no doubt about that. But one can also prosecute for any offence that arises by virtue of the conduct constituting the offence. There are two types of ‑ ‑ ‑

GUMMOW J: Where do we see that?

MR AUGHTERSON: That appears, your Honour, in section 22(4) ‑ ‑ ‑

GUMMOW J: How about the particular speciality here, page 1?

HAYNE J: The last subparagraph (ii) on page 1?

GUMMOW J: Going over to page 2. The Attorney can waive - - -

MR AUGHTERSON: It is (ii) and, again, this repeats what is the position with speciality, that one can prosecute for either:

(i) any surrender offence –

or –

(ii) any offence…..of which they could be convicted on proof of the conduct constituting any surrender offence –

and it is a question of what is meant by that term. Now, if in England the prosecutor says, “Well, this statement was accepted in Australia by an Australian court as a statement of the conduct constituting the offence, it would be very difficult to answer that, which would enable, on that basis, the prosecution to charge in relation to, for example, paragraphs 38 and 39. It is part of the conduct constituting the offence, and it was accepted by an Australian court as such. In my submission, it would be very difficult to resist a submission to that effect.

KIRBY J: Would it have been open to the magistrate to strike out paragraphs 38 and 39? Did you ask that that be done? Have you asked ‑ ‑ ‑

MR AUGHTERSON: I did not appear in this matter at first instance, your Honour, so I do not know what may or may not have been said at that particular ‑ ‑ ‑

GUMMOW J: You came into it in the Federal Court, did you not?

MR AUGHTERSON: Yes, your Honour. But, again, it involves the magistrate and the court in deciphering the document and making a decision, as your Honour has indicating, that the requesting State should make in determining which paragraphs relate to which offence, or which is the conduct they rely upon.

KIRBY J: Well, speaking for myself, I think you have a complaint about the way in which the document is framed and imposes on judges even a relatively minor duty to be doing the work that the requesting State should do, and you may have a complaint that there is in the statement extraneous material which is part of the statement of conduct which has never been withdrawn, but upon which on your extradition you complain that you might be liable to be charged, even though it is not a surrender offence.

MR AUGHTERSON: Yes.

KIRBY J: But, save for that, even that may not be a good point because, after all, as Justice Hayne pointed out, the magistrate surrendered on particular offences by reference to a particular matter and, therefore, one would think that there would be a serious breach of the double criminality principle if the United Kingdom were then to prosecute your client on paragraphs 38 and 39, although they were not identified as supporting a particular conduct relevant to an offence.

MR AUGHTERSON: Yes. Your Honour, I know I am repeating myself, but on page 1 it does make the point there are two types of offences for which one may be prosecuted. It is not just the surrender offences. It is “any offence” that arises “on proof of the conduct constituting” the “offence”, and ‑ ‑ ‑

HAYNE J: Let us understand what is “conduct constituting any surrender offence”, and taking purely as a point of reference, charge 4 at page 5, other than the items of conduct there identified in charge 4, what additional conduct, if any, do you say should have been specified as constituting the offence?

MR AUGHTERSON: Well, your Honour, that would require, again, me to have a knowledge of English law that is not ‑ ‑ ‑

HAYNE J: Oh? Indulge me and tell me what areas of English law might have assisted in identifying some hypothetical further fact than appears in charge 4 as written?

MR AUGHTERSON: Well, the word, in the context of the terms of our legislation which by section 10(2) requires to be set out the acts or omissions by virtue of which the offence has been committed, simply saying somebody dishonestly obtained something and not the acts or omissions, in our submission, by virtue of which the offence has been omitted. It simply states the charge that somebody dishonestly obtained something. It does not set out acts or omissions by virtue of which the offence has been committed. Again, the principle is interpreted one of two ways: either we take an ingredients test, or a conducts test. It is clear, in our submission, that the Australian legislation adopts the conducts test. Once it adopts the conduct test, then it is conduct that must be provided.

McHUGH J: But do you contend that by examining the 19(3) statement, that you can have the extradition set aside on the ground that the acts or omissions set out there do not constitute an offence under English law?

MR AUGHTERSON: Your Honour, the position here, at the end of the day, may be a matter of form, I do not know, but ‑ ‑ ‑

McHUGH J: Could I have an answer to my question. Do you contend that a person can challenge the extradition on the basis that the acts or omissions set out in the 19(3) statement do not constitute an offence under the law of the extraditing country?

MR AUGHTERSON: The answer is, your Honour, I do not know, and ‑ ‑ ‑

McHUGH J: What about as a general proposition? Let us leave this case aside. Supposing somebody is being extradited for murder to the United Kingdom and the acts or omission in the 19(3) statement simply said, “The victim was killed as a result of the negligent driving of the person against whom extradition is sought”. Now, that may fail under 11(5), if that is applicable. It may fail under 19(2)(c), but do you contend that the extradition fails because it is not offence under the English law of murder?

MR AUGHTERSON: No, that is not the submission. The submission ‑ ‑ ‑

McHUGH J: No, I know it is not, because you cannot challenge that, can you? Once that is accepted, having regard to your grounds of appeal, I do not see what there is in this appeal at all. It seems to me, with great respect, that the extraditing country takes its stand on what it puts in its statement of conduct. It sets out the acts and omissions constituting the offence. They may or may not make out the offence in English law or whatever the relevant law is, but they run the risk that if they have not done it properly, they will fail under 19(2)(c) or 11(5) or some other ground. Your ground is limited to the 19(3)(c)(ii) point.

MR AUGHTERSON: Yes, your Honour, and, again, it is our submission that it has to be read in context in view of the purpose for which the statement is produced, and the statement is produced for the purpose of 19(2)(c) and it does not set out conduct constituting the offence.

McHUGH J: But you seem to be wanting to get the best of both worlds, and you say, “Well, a 19(3)(c) statement has got to comply with 19(2)(c)”, but you are not here on that ground under 19(2)(c).

MR AUGHTERSON: No, your Honour, but its meaning, in our submission, must be taken from that provision. What we say is if you have a global statement, for example, and it is difficult to ascertain what conduct relates to each one individual offence, then one does not even get to first base.

GUMMOW J: Suppose there had already been a conviction, how does your submission work then?

MR AUGHTERSON: Well, if there had been a conviction, one ‑ ‑ ‑

GUMMOW J: So, the offence has been committed?

MR AUGHTERSON: Yes, and there would be a judgment, presumably.

GUMMOW J: No, there would not, there would just be a decision of a jury in the case. What does the extraditing country do?

MR AUGHTERSON: It sets out the conduct constituting the offence.

GUMMOW J: What, the record of the trial, in order to satisfy 19(3)(c)(ii)? What you would have is a verdict on particular charges, I suppose.

MR AUGHTERSON: But you would have had a charge initially which would have set out the conduct.

GUMMOW J: Yes, that is why I made the point to you at the beginning that the charge is what is really significant in all this, because 10(2) makes the point plain and the other provisions do too, that extradition is often sought where there has already been a trial.

MR AUGHTERSON: Yes, but there will have been ‑ ‑ ‑

GUMMOW J: Sometimes in absentia and there are problems about that, but sometimes there has been an escape.

MR AUGHTERSON: Your Honour, the extradition arrangements are such these days that the only basis on which any person can challenge extradition is the statement of conduct. In relation to some countries, there is a requirement of a prima facie case, but in most countries these days, there is not. It all rest on that statement of conduct. It is our submission that a person is entitled to have presented a clear and concise statement of conduct. The prejudice is huge. The prejudice to the person sought is huge, not only in relation to ‑ ‑ ‑

GLEESON CJ: Is that the problem with this statement of conduct, that there is too much in it?

MR AUGHTERSON: There is too much in it and it is unclear.

GLEESON CJ: One of the problems about the proposition there is too much in it is this: your clients are alleged to have engaged in a lengthy series of frauds. It is sometimes almost impossible to engage in criminal conduct of that kind without incidentally committing other offences along the way. There are some laws that almost inevitably involve multiple breaches, as it were, but in so far as you complain that when Mr Cook, if that is his name ‑ ‑ ‑

McHUGH J: Yes.

GLEESON CJ: ‑ ‑ ‑ set out to explain the conduct constituting the offences committed by your client, he adopted a narrative style which involved him including allegations of motive, for example, such as the motive of amassing as much property as possible to come to Australia. He went beyond a bare statement of the conduct constituting the offences. That seems to involve the proposition that on the true construction of this statute, the people seeking extradition are limited to a statement of the minimum.

MR AUGHTERSON: Yes, your Honour, but in this case, the problem is not only excess. In some cases, there is inadequacy. With some of the paragraphs relied upon by his Honour Justice Carr, when it was said that the conduct alleged did not make out an offence in this country, his Honour then referred to other depositions. But even those other depositions, at times, did not set out conduct in relation to which a conviction could be had in this country. So that if you relied purely on that conduct set out in those paragraphs, looked at those paragraphs and said, “Right, on that conduct, could an Australian offence be established?” In relation to…..the answer is no. So it is not just a question of too much. In some cases it is a question of too little.

In relation to charges 11 and 13, for example, there is no suggestion that the property was obtained by Mr McDade, and the way his Honour resolved that was to simply refer to a general statement at the end of Mr Cook’s deposition to the effect that when the police arrived in Western Australia, they found 90 per cent, I think it was, of the material in Mr McDade’s house. There is nothing to suggest there that that material was the same material or the same goods that are referred to in counts 11 to 13. His Honour simply speculates that they are probably the same. But there is nothing in the statement to say that they are.

GLEESON CJ: There is something in the charge to say that they are.

MR AUGHTERSON: In the charge ‑ ‑ ‑

GLEESON CJ: The charge alleges that the property is the same.

MR AUGHTERSON: Yes.

GLEESON CJ: So if you had a legitimate complaint here, it was a complaint going to sufficiency of evidence.

MR AUGHTERSON: No, it was a complaint going to the statement of conduct because it is not sufficient – we do not work on an ingredients test when we look at – and this is simply interpreting the Australian legislation – we do not work on an ingredients test but a conduct test. The first respondent cannot have it both ways. If we apply a conduct test and not an ingredients test, then conduct must be pointed to in the statement of conduct which would give rise to an offence in this country and it is our submission that at least in relation to some of the charges it does not.

KIRBY J: Have you taken us to the best examples that you rely on in that respect?

MR AUGHTERSON: Perhaps I can take you to charge 6, which his Honour said is dealt with by paragraphs 88 and 89 which appears at page 198 of the appeal book. Now, charge 6 deals with an amount of £4,700. His Honour said he:

obtained from Barclays Bank PLC £4,700.00 –

and it relates to 1 July. Now paragraphs 88 and 89, which his Honour relied upon, talk about a sum of 16,140 and refers to no less than five separate affidavits.

KIRBY J: Do you remember the case of Davies? This is bearing out something the Chief Justice said earlier. This was about 20 years ago in England where the accused was extradited from the United States by consent on the charge of theft and when he got to England they found that for some reason a Company Act offence was more apt and, by consent, he agreed to be charged with and pleaded guilty to that and was sentenced. It was then drawn to the notice of the Foreign Office. They said you cannot do that because it offends the law of extradition.

MR AUGHTERSON: Yes.

KIRBY J: Now I just want to understand what you complaint of is. Is that the sort of thing your client is concerned about, that though he is apparently extradited on a charge of theft, that is not part of the conduct document and that when he goes to the United Kingdom he may find himself facing a whole series of other charges related to things dredged up from these affidavits.

MR AUGHTERSON: Yes, your Honour. That is our submission and it is a real risk.

GUMMOW J: But that is always a possibility on your theory.

MR AUGHTERSON: No, it is not always a possibility, your Honour.

GUMMOW J: Yes, it is. It is always a possibility that the country that obtains extradition will disobey the speciality. It is always a possibility.

MR AUGHTERSON: There is a possibility it will disobey it but there is the possibility, the real possibility in this case, that it can do it with a ‑ ‑ ‑

GUMMOW J: It is an allegation of bad faith on behalf of the United Kingdom which simply should not be made.

MR AUGHTERSON: Your Honour, it is not an allegation of bad faith.

GUMMOW J: At this stage on this material there is no suggestion that is going to happen.

MR AUGHTERSON: No, your Honour. What is suggested is that it is possible on this statement for a requesting country to say that the statement of conduct is the statement that was relied upon in Australia.

GUMMOW J: We know what the magistrate ordered. That is what will be the determinative document.

MR AUGHTERSON: It may be, your Honour.

GUMMOW J: Justice Hayne took you to it.

GLEESON CJ: And the logical corollary of it is that there will always be a non‑compliance with the statute unless the bare minimum is stated because the moment anything more than the bare minimum is stated this argument will be raised.

MR AUGHTERSON: Except that these matters will be looked at ‑ ‑ ‑

KIRBY J: Do not say “practically” because if we look at them practically, incorporating a document by reference is not a big deal.

MR AUGHTERSON: No.

KIRBY J: I mean, what is so wrong about incorporating it? The days used to be that the accused would complain he was not, until too late, given enough. You are given an abundance. What is wrong with that?

MR AUGHTERSON: Except that one is not dealing with the fact of the prosecution, one is dealing with double criminality which is a totally different consideration.

GUMMOW J: Well, one is not dealing with double criminality.

GLEESON CJ: There may be cases where there is a real problem about double criminality but this does not seem to be one of them.

MR AUGHTERSON: It may not be, your Honour, but the point is in relation to this: it is the prejudice or potential prejudice to the person sought is huge. The prejudice to the requesting State is ‑ ‑ ‑

GUMMOW J: Just listen to me for a minute. All I am putting to you is you have no ground of review complaining about 19(2)(c). You have no ground of review in the Federal Court complaining about section 11(4). You have no ground of review in the Federal Court complaining about 19(2)(d), political offences. All you did have was this particularly constrictive ground.

MR AUGHTERSON: Yes.

GUMMOW J: Which is not co‑extensive with any of those grounds.

MR AUGHTERSON: In my submission, at the risk of repeating myself, your Honour, the 19(2)(c) statement cannot be interpreted in isolation. It must gather its meaning in the context of the purpose for which the statement is produced and that is ‑ ‑ ‑

McHUGH J: But it is the allegations of the requesting State that constitute the basis of determining whether the double criminality requirement satisfied. They make this. They stand or fall by their statement, whatever is in it. You concede that whether or not a foreign offence has been committed is not a matter that can be examined by the magistrate. If they do not put enough material in to satisfy the 19(2)(c) provision, the extradition fails but that is a matter for them. You seem to want to use 19(2)(c) to argue that the 19(3)(c) statement has to, in effect, contain the precise facts which will constitute the offence under the foreign law, which, by hypothesis, your argument has already conceded is not available.

MR AUGHTERSON: Your Honour, in relation to one point it is not conceded that one cannot look at foreign law. Normally, the magistrate would not be required to look at foreign law but if there was clear evidence, for example, from an expert in foreign law that the statement of conduct did not relate to the offence as charged, then, in my submission, the magistrate should take notice of that.

KIRBY J: Is there any authority in this country or overseas with a comparable statute that gives any support to your proposition which is fundamentally a proposition of very strict pleading in extradition applications?

MR AUGHTERSON: Your Honour, the problem is unlikely to arise in foreign jurisdictions.

KIRBY J: That is because of the particularity of our statute.

MR AUGHTERSON: The Australian legislation requires an additional document.

KIRBY J: Did the Minister say that when the new Act was enacted, that this is a special requirement for Australia because it is an awful long way to extradite people from Australia to other countries?

MR AUGHTERSON: Not that I recall, your Honour.

KIRBY J: So you just have on the face of the statute this peculiar and additional requirement?

MR AUGHTERSON: You have this additional requirement to produce a statement of conduct which causes, potentially, considerable difficulties.

KIRBY J: Does any other country have that?

MR AUGHTERSON: Not that I am aware of, your Honour, and that is probably why, in this case, there was not a statement of conduct deliberately designed and produced for that purpose.

KIRBY J: Given that it is an additional requirement of Australian law but given that Australia has to live with the rest of the world and is part of a general system of extradition, which is a reciprocal arrangement, why would one want to interpret it in the way that you are suggesting in such a way that (a) you cannot incorporate by reference another document which refers to conduct which provides a stumbling block for a country which might have a perfectly genuine and reasonable request for extradition and, (b) otherwise take the narrow view that you are urging on the section?

MR AUGHTERSON: In our submission, your Honour, the purpose would be to make it consistent with those other jurisdictions. Those other jurisdictions tend to rely on the indictment or the warrant.

GUMMOW J: Well, this is the problem that arose as I understand it. If you look at 19(3), first of all you have to have the warrant. As I understand it the problem was that some countries had a very bare warrant. If the person has already been convicted, you have to have the conviction and so on and, in any case, you have to have the penalty and the statement of the conduct constituting the offence as against the situation where you just had these bare warrants that were not anything like the documents that appear here that were scheduled to the warrant here. That is as I understand the history of the legislation. It makes sense. You are rather turning it on its head.

MR AUGHTERSON: No, your Honour.

GUMMOW J: Those being the documents, which Justice McHugh has put to you several times, the country seeking extradition then stands or falls.

MR AUGHTERSON: Your Honour, it is our submission that this statement of conduct should be given an interpretation consistent with the approaches taken in other jurisdictions.

KIRBY J: But why, given that we have gone to the trouble of enacting a very peculiar, special and unique provision all of our own and one could, perhaps, understand it. The reason for it is that we have taken the view that extraditing from Australia is a specially serious thing, because we are a long way from most other places or we will not leave the extraditee in the dark. We will require not just a bare warrant. We will require a specification of the conduct. The foreign countries are going to have to give that. You will know what your – not just the charge but the conduct you are facing and then you can consider whether or not you want to resist it.

MR AUGHTERSON: Your Honour, if the object was not to leave the person in the dark, then it is our submission that that is precisely what this document does. This document leaves the person very much in the dark.

KIRBY J: I am not really convinced so far that it does. It may be that it gives you more than you really need but it is not just the bare charge. It is the detailed conduct, which is exactly what Australian law seems specially and additionally to require.

HAYNE J: This way you would not get much more on a committal if you were charged in Australia. You would be about as much in the dark as he is now. It is an irrelevance. Do not rise to the bait, Mr Aughterson.

MR AUGHTERSON: But one is endeavouring, your Honour, here to – or one has to ascertain whether a charge in Australia can be made out. It follows that the wider you draft the statement the broader it is and the more that appears in the statement the much more likely it is to establish double criminality.

GLEESON CJ: So you have an application for fewer and less complete particulars?

MR AUGHTERSON: Well, there have been some cases that it is inadequate particulars and in other cases there is too much. It is the “too much” that makes it easy for the requesting country to establish double criminality so the requesting State will know full well that the more it puts in the more readily will double criminality be established.

KIRBY J: I have to tell you that you have not yet pointed to anything in the statement of conduct that you say is too much and that exposes your client to some additional charge beyond that which is in the set of charges which is to subject you to an unfairness. You have talked in very general terms but you have not actually put your finger on anything that is unfairly submitting your client to extradition that he might end up facing a lot of other charges.

MR AUGHTERSON: Can I take your Honour to charge 16, which is the finding of the magistrate at page 227 of the appeal book. Charge 16 appears at page 9 of the appeal book and the charge is dishonestly obtaining services, namely credit facilities. The finding of the magistrate of charge 16 on page 227, he says:

In my opinion there is sufficient evidence that the goods were obtained by fraud.

So there is reliance in that case, at least, on conduct not constituting the offence.

McHUGH J: That may have been a complaint under 11(4), 11(5) but it is not a point that is open to you here.

GUMMOW J: I am afraid you elected to run this case in a particular fashion in the Federal Court, no doubt for good reason but there are consequences that apply from that.

MR AUGHTERSON: On that charge, your Honour, if that is the relevant conduct relating to this offence it is not conduct constituting the offence. It is conduct constituting some other offence. It is not conduct constituting the offence set out in 16. It is not a statement - if one looks purely at section 19(3)(c)(ii) - setting out “conduct constituting the offence” of obtaining services dishonestly.

KIRBY J: What did Justice Carr say about that complaint, if anything?

MR AUGHTERSON: I do not know that ‑ ‑ ‑

McHUGH J: He was not asked to deal with it, was he?

MR AUGHTERSON: He just simply says that - he did not actually address that particular point in his reasons, your Honour, but looking at it purely from the point of the statement of conduct, it is not a statement of the conduct constituting the offence of obtaining services.

KIRBY J: Well, the statement of conduct might be all right. It may be that the magistrate has simply misunderstood it. The statement of conduct refers to obtaining services. The magistrate threw in “obtaining goods” but that may just be the magistrate’s mistake. That is not something which we are concerned with.

MR AUGHTERSON: Paragraph 56 is the one that includes reference to, on his Honour’s view, an undisclosed deposition.

KIRBY J: What was the meaning of the magistrate’s reference to the Financial Transactions Report Act Was that alleged to have been an Act that gave rise ‑ ‑ ‑

MR AUGHTERSON: That was one of the Acts relied upon.

KIRBY J: That was relied upon as an equivalent offence in Australia?

MR AUGHTERSON: Yes, your Honour.

KIRBY J: He dismissed that and then, instead of looking to whether, either under the Code or some other way obtaining credit by deception, dishonestly, would be an offence, he threw in this conclusion about “obtaining goods by fraud.”

MR AUGHTERSON: Obviously on the basis of the conclusion that there was not sufficient evidence in relation to services.

KIRBY J: Yes, but that is for the particular purposes of a particular federal statute. It is not for the particular purposes of the law of Western Australia.

MR AUGHTERSON: Well, for the purpose of the law of Western Australia, which is governed, of course, by Commonwealth and State legislations.

Your Honours, it is the appellant’s submission that the form of a request of this nature is vital. This is the only document that the appellant has or any person being sought for extradition has to protect themselves from improper extradition. The prejudice to the appellant is immense. The prejudice, on the other hand, to the first respondent is negligible. It has been held that there is no res judicata in relation to extradition proceedings and if they do not do it properly they always have the capacity to start again.

GLEESON CJ: Now, does that cover the arguments you want to put?

MR AUGHTERSON: Yes, your Honour.

GLEESON CJ: We will adjourn for a short time to consider the course that we will take in this matter.

AT 4.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.17 PM:

GLEESON CJ: Mr Aughterson, we have heard you fully on the arguments on the merits of the appeal but is there anything further that you would want to say in addition to what you have already said on the question whether we should not withdraw your grant of special leave?

MR AUGHTERSON: I am sorry, I missed the last part, your Honour.

GLEESON CJ: We have heard you argue the merits of your appeal and you have told us there is nothing further you want to say about that. A possible course that we could take would be, if we were against you on the merits, to withdraw your application for special leave. Is there anything you would want to say about that? I am sorry, I said withdraw your application. I meant, of course, withdraw your grant.

MR AUGHTERSON: Withdraw the grounds of appeal?

GLEESON CJ: Withdraw the grant of special leave. It is a course that is sometimes taken.

MR AUGHTERSON: Right.

McHUGH J: Ordinarily during the argument something comes up and we give counsel an opportunity to argue why we should not withdraw the grant of special leave to appeal. You have argued your appeal and one of the orders that we could make, if we were against you, is to dismiss your appeal or another order is to withdraw your grant of special leave to appeal. What you are being asked is is there any argument that you would want to put about the withdrawal of special leave as an order, as opposed to dismissing your appeal if we were against you.

MR AUGHTERSON: I am not sure of the implications of that, your Honour.

GLEESON CJ: I am not sure that there are any implications of it.

MR AUGHTERSON: No.

McHUGH J: It is just a question of the form of order.

GLEESON CJ: No one is suggesting to you that there are any particular implications of it.

MR AUGHTERSON: No. The basis of this appeal, your Honour, is – I do not know that I can express it any higher than I have and I am conscious of the matters your Honours raised in relation to this particular incident and of extradition to the United Kingdom but whatever decision the High Court makes, of course, will have a considerable impact on the formation of the statement of conduct in future cases and it is my submission that if a statement of conduct of this nature is accepted by the courts as sufficient, then the net result of that will be that it will be very difficult to establish double criminality in any case and it would be very difficult to imagine the circumstances in which double criminality could be raised in this country but other than to say that I have nothing that I can add.

GLEESON CJ: We do not need to hear you, Mr Bugg.

Having had the opportunity to hear the appellant’s argument fully elaborated by Mr Aughterson, the Court has come to the conclusion that the case is not a suitable vehicle for determination of the issues of general principle sought to be raised by the appellant and, further, that having regard to the particular facts and circumstances of the case, there is insufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court. For those reasons the Court is of the view that the grant of special leave to appeal made in this case should be revoked. Can you resist an order for costs, Mr Aughterson?

MR AUGHTERSON: No, your Honour.

GLEESON CJ: The appellant must pay the respondent’s costs. Yes.

MR BUGG: Yes, there is just one issue, your Honour, and that is that the appellant was granted bail between the date of the grant of special leave and obviously these proceedings being heard today. I would seek, obviously, a consequential order.

GLEESON CJ: Granted bail by whom?

MR BUGG: Justice Callinan, and the appellant ‑ ‑ ‑

McHUGH J: It would be until the determination of these proceedings, would it not?

MR BUGG: I am sorry, my learned junior actually appeared for the ‑ ‑ ‑

GLEESON CJ: Why do you not do this, Mr Bugg? It would turn on the precise terms of the bail but you can look overnight at whether or not there is anything about the terms of the grant of bail that requires any further order or action on anybody’s part and if there is you can raise the matter again tomorrow morning.

MR BUGG: I would seek leave tomorrow morning. I will not trouble the Court further. Yes, your Honour.

McHUGH J: I would be surprised, having regard to the terms of orders we make in these bail applications, if the result was otherwise than bail is now terminated.

MR BUGG: Yes, I suspect that is the case, your Honour, but it was just ‑ ‑ ‑

GLEESON CJ: You can both check that overnight. Subject to that matter, we will adjourn until 10.15 tomorrow morning.

MR AUGHTERSON: Your Honour, there is one matter. My understanding was that the bail was until today.

GUMMOW J: …..granted today.

MR AUGHTERSON: Until the expiration ‑ ‑ ‑

GUMMOW J: It is until the taking of ‑ ‑ ‑

MR AUGHTERSON: Until judgment or decision, I think.

GUMMOW J: Exactly and there has been a decision.

MR AUGHTERSON: Yes. Your Honour, after the decision of Justice Carr he allowed the suspension of the order for one week.

KIRBY J: But that was because this Court lay in wait. This Court has now spoken. It may be that the respondent would be content that your client surrender himself tomorrow or perhaps some time to make his arrangements but that is a matter for the respondent.

MR BUGG: I am content that there be some informal discussions between counsel.

GLEESON CJ: We are not a bail court and if there is any problem that needs our attention it can be raised with us tomorrow morning at 10.15.

MR BUGG: Yes.

GLEESON CJ: But subject to that, we will adjourn until tomorrow morning at 10.15.

AT 4.24 PM THE MATTER WAS CONCLUDED

[2000] HCATrans 622

23 October 2000

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