Metleg v United States of America
[2013] FCA 1428
•5 December 2013
FEDERAL COURT OF AUSTRALIA
Metleg v United States of America
[2013] FCA 1428
Citation: Metleg v United States of America [2013] FCA 1428 Parties: MOHAMMED METLEG v UNITED STATES OF AMERICA File number: NSD 1755 of 2013 Judge: RARES J Date of judgment: 5 December 2013 Legislation: Extradition (United States of America) Regulations s 11
Extradition Act 1988 (Cth) ss 16, 19(7), 19(7)(a), 19(9), 21, 21A
Treaty on Extradition between Australia and the United States of America Art XICases cited: Bennett v United Kingdom (2000) 179 ALR 113 applied
Cabal v United Mexican States (No 3) (2000) 186 ALR 188 applied
Choi Sze Yuen v Government of the United States of America (CACV 000014/1992 Unreported, 10 June 1992) applied
Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15 referred to
Government of the USA v Ng Hung Yiu [1991] HKLY 560 distinguished
United States v McLain 559 F. Supp (2d) 983 at 992 (D. Minn 2008) referred toDate of hearing: 5 December 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr P Lange Solicitor for the Applicant: Lawyers Corp Pty Ltd Counsel for the Respondent: Ms R Graycar Solicitor for the Respondent: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1755 of 2013
BETWEEN: MOHAMMED METLEG
Applicant
AND: UNITED STATES OF AMERICA
Respondent
JUDGE:
RARES J
DATE OF ORDER:
5 DECEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The order made by Magistrate Goodwin on 12 August 2013 pursuant to s19(9) of the Extradition Act 1988 (Cth) be confirmed.
2.The applicant pay two thirds of the respondent's costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1755 of 2013
BETWEEN: MOHAMMED METLEG
Applicant
AND: UNITED STATES OF AMERICA
Respondent
JUDGE:
RARES J
DATE:
5 DECEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
On 12 August 2013, Goodwin M of the Local Court of New South Wales ordered that the applicant, Mohammed Metleg, be committed to prison in accordance with s 19(9) of the Extradition Act 1988 (Cth). That was because her Honour had determined that he was eligible for surrender to the United States of America in respect of eight counts of violations of the laws of the United States, namely four counts of aiding and abetting in the making of a false statement during the acquisition of firearms in violation of 18 United States Code (USC) ss 922a(6) and 924a(2); one count of shipping and transporting firearms in foreign commerce with the intent to commit an offence under Australian law punishable by imprisonment for a term exceeding one year in violation of 18 USC ss 2 and 924b; one count of shipping firearms through a common carrier without written notice to the carrier in violation of 18 USC ss 2 and 922e; one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine in violation of 21 USC s 846 and 18 USC s 2; and one count of possess with intent to distribute 500 grams or more of cocaine in violation of 21 USC s 841a(1) and 18 USC s 2.
The extradition request
On 26 February 2013, the Minister for Justice made a statement under s 16 of the Act that an extradition request had been received from the United States in relation to Mr Metleg who went under a number of aliases in addition to his own name.
The evidence before her Honour consisted of an extradition request by the United States signed by John F. Kerry, the Secretary of State, on 22 February 2013 and certified by Lystra G. Blake, the Associate Director of the Office of International Affairs, Criminal Division of the United States Department of Justice.
The extradition request included an original affidavit by Philip H. Wehby, Assistant United States Attorney for the Middle District of Tennessee, sworn on 21 February 2013. After identifying his qualifications and experience, Mr Wehby recited the relevant provisions of the USC, described the charging process in the United States, the procedural history of the criminal proceedings against Mr Metleg, the charges, the elements of those offences (including a description of the alleged offending conduct involving Mr Metleg) and demonstrated that no statute of limitations or other matter prevented the bringing of the charges. I will describe the relevant contents of the affidavit later in these reasons.
Mr Wehby’s affidavit attached, in circumstances I will describe shortly, a warrant for Mr Metleg’s arrest on the eight counts dated 29 November 2012 that was signed by Ann E. Schwarz, the Criminal Docketing Supervisor of the United States District Court for the Middle District of Tennessee (the District Court), which Ms Schwarz also attested and certified to be a true copy of the document in her capacity as the Deputy Clerk of that Court.
The grounds for review
Mr Metleg applied under s 21 of the Act to this Court for a review to quash her Honour’s decision. There were originally four grounds for review advanced by Mr Metleg. However, during the course of the hearing his counsel abandoned the fourth ground which had challenged the magistrate’s finding of dual criminality on the firearms counts. The remaining three grounds were that her Honour erred in:
(1)concluding, in the absence of admissible evidence of the contents of those foreign laws, that the person who purported to authenticate the arrest warrant as required by s 19(7)(a) of the Act was an officer in, or of, the United States by virtue of the provisions of the United States Federal Laws of Criminal Procedure and the United States’ Federal Rules of Civil Procedure;
(2)holding the arrest warrant had been authenticated as required by s 19(7) in the absence of what purported to be the signing or certification of the purported arrest warrant by a judge, magistrate or officer in or of the United States required by s 19(7)(a); and
(3)finding that the United States had satisfied the requirements of s 19(2) of the Act as modified by Art XI of the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976 as amended by the Protocol done at Seoul on 4 September 1990 (the Treaty) by providing a copy of an arrest warrant and a copy of the charging document, notwithstanding the fact that the arrest warrant tendered was, on its face, based on a different charging document, namely an indictment, instead of the charging document tendered, which was a superseding indictment.
The legislative scheme
Relevantly, the Act provided:
“19 Determination of eligibility for surrender
(1)Where:
(a) a person is on remand under section 15;
(b)the Attorney General has given a notice under subsection 16(1) in relation to the person;
(c)an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d)the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2)For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a)the supporting documents in relation to the offence have been produced to the magistrate;
(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents – those documents have been produced to the magistrate;
(c)the magistrate is 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; and
(d)the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3)In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a)if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
…
(4) Where, in the proceedings:
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b)the magistrate considers the deficiency or deficiencies to be of a minor nature;
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.
…
(7)A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a)it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b)it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i)in any case – of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country;
…”
(emphasis in original)
A person against whom an order has been made under s 19(9) could apply under s 21 to this Court for a review of the order. In such an application, s 19(6)(d) provided that, subject to s 21A, the Court must have regard only to the material that was before relevantly the magistrate. However, s 21A(3) provided:
“Documents containing deficiencies
(3) If:
(a) a document is:
(i)a document to which the review court must have regard under paragraph 21(6)(d); or
(ii)a document that is received by the review court under subsection (2) of this section; and
(b)the document contains a deficiency of relevance to the review or appeal; and
(c)the court considers the deficiency to be of a minor nature;
the court must adjourn the proceedings for such period as is necessary to allow the deficiency to be remedied.”
The Act can be modified by regulations made pursuant to s 11 to give effect to, among others, a bilateral extradition treaty. The Extradition (United States of America) Regulations give effect to the Treaty. Relevantly, the protocol substituted a new Art XI that provided:
“(3)A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
(a)a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
(b) a copy of the charging document, if any; …
…
(5)The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they
(i)purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and
(ii)purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;
… or
(c)they are certified or authenticated in any other manner accepted by the law of the requested State.”
The new Art XI(5) amended a differently worded provision in the original Treaty and brought into conformity with the provisions in s 19(7)(a) and (b). It is convenient to refer, as the parties did in argument, only to s 19(7) in discussing what suffices for a document to be authenticated.
Background
Mr Wehby’s affidavit explained that, procedurally, there were two mechanisms by which a criminal prosecution could be filed in the United States. The first was the filing of a criminal complaint, which is then presented to a judicial officer who must determine whether the accompanying written statement of facts constitutes probable cause to believe the commission of an office by the accused. That is what initially had been done in Mr Metleg’s case on 15 November 2012. The second was by a grand jury voting to return and file an indictment with the clerk of a United States District Court. The second mechanism could be engaged even if a case had been originally commenced by a criminal complaint.
In the present case, on 15 November 2012, US Magistrate Judge, E. Clifton Knowles, of the Middle District of Tennessee, issued an arrest warrant for Mr Metleg pursuant to r 4 of the Federal Rules of Criminal Procedure (US) on the basis of a criminal complaint that had been filed with him.
Subsequently on 29 November 2012, a grand jury found a true bill against Mr Metleg and a number of other persons on a total of 12 counts, only eight of which involved Mr Metleg. That bill was filed in the District Court on 29 November 2012 and comprised 10 pages. It appears to have been document 41 in the District Court’s file for the proceedings and had a page ID numbers between 109 and 118. The arrest warrant on which the United States sought Mr Metleg’s extradition comprised document 42 in the District Court file and had a page ID of 119.
Mr Wehby’s initial affidavit confusingly asserted that he had obtained a copy of the arrest warrant for Mr Metleg that had been certified as true and accurate, from the clerk of the District Court and he attached it to his affidavit as exhibit 2. He did so in a paragraph in which he referred only to the warrant that Magistrate Judge Knowles had issued on 15 November 2012. In fact, the warrant he attached as exhibit 2 was dated 29 November 2012. That warrant was signed by Ms Schwarz as “issuing officer” underneath which her name was typed. The warrant described her title as “Criminal Docketing Supervisor”. It had a series of boxes in which the nature of the offence or violation alleged in an initiating document filed with the District Court could be identified. The boxes provided options to choose between a number of initiating documents, including indictment, superseding indictment, information, superseding information, complaint and order of the Court. The box ticked on the warrant was that for an indictment, rather than a superseding indictment (as found by the grand jury) or complaint (as found by the Magistrate Judge). That ambiguous feature of the warrant provided the substantive basis for ground 3 of Mr Metleg’s challenge.
Mr Wehby’s affidavit explained that on 29 November 2012, a Federal grand jury for the Middle District of Tennessee had returned a superseding indictment charging Mr Metleg with the eight counts against the laws of the United States for which his extradition is sought. Mr Wehby said that he had obtained from the Clerk of the District Court a copy of that superseding indictment, certified as true and accurate. He attached the superseding indictment as exhibit 3. The relevant eight counts briefly described in the arrest warrant corresponded to the eight counts alleged against Mr Metleg in the superseding indictment.
Shortly before the hearing, my associate raised with the parties the possibility of whether I would be obliged to adjourn the proceedings listed today pursuant to ss 19(4) and 21A(3) of the Act to deal with an issue concerning what her Honour had said in her reasons below was a “typographical error” on the face of the arrest warrant. Her Honour identified the “typographical error” as the ticking of the indictment box on the warrant, as opposed to the superseding indictment box. The United States sought to uphold her Honour’s characterisation of this as a typographic error in its written submissions for the present application. Having regard to Mr Wehby’s assertions in his original affidavit that a complaint had been filed and an arrest warrant had been issued by the Magistrate Judge in respect of Mr Metleg on 15 November 2012 and that a superseding indictment had been found by the grand jury on 29 November 2012, I was of the view that this was potentially more than a typographical error.
For the following reasons, I am satisfied on the evidence before me that this was a deficiency of relevance to the review and was one of a minor nature for the purposes of ss 19(4) and 21A(3) in respect of a document to which her Honour and I had to have regard.
As it turned out the United States obtained and read today an affidavit of Mr Wehby sworn on 3 December 2013. In that affidavit he explained that the prosecution against Mr Metleg had originally been instituted by the criminal complaint and a warrant for his arrest had been issued by US Magistrate Judge Knowles on 15 November 2012. Mr Wehby said that Mr Metleg had later been indicted on 29 November 2012 by way of a superseding indictment and a new arrest warrant, based on it, had been signed that day by Ms Schwarz, Deputy Clerk of the Court. He said that rule 9 of the Federal Rules of Criminal Procedure (US) designated the Clerk of the Court as the authority competent to sign arrest warrants and deliver them to law enforcement authorities competent to make arrests, for execution. Rule 9 stated relevantly that:
“… The court must issue a warrant … for each defendant named in the indictment ... the warrant ... must be signed by the clerk and describe the offense charged in the indictment ...”
Mr Wehby said that the Clerk’s function of signing and delivering arrest warrants also resided in, and was appropriately customarily and lawfully exercised by, deputy clerks of the Court. He referred to United States v McLain 559 F. Supp (2d) 983 at 992 (D. Minn 2008) which held an arrest warrant signed by the deputy clerk of a court was sufficient under the relevant rule. He deposed that in nearly every case in the Middle District of Tennessee a deputy clerk, not the “appointed clerk”, signs and delivers arrest warrants and that that had happened in this case where Ms Schwarz signed on behalf of Keith Throckmorton, the Clerk of the Court.
Mr Wehby then explained that, while he had asserted in his first affidavit that the warrant exhibited to his affidavit had been dated 15 November 2012, in fact that warrant had been dated and issued on 29 November 2012 and related to the superseding indictment. He said that both the warrant and the superseding indictment were issued on 29 November 2012 and were the exhibits to his original affidavit. He asserted that a clerical error of the kind comprised in ticking the box for “indictment” instead of that for “superseding indictment” did not affect the validity of the arrest warrant and that it was, and is, valid to support Mr Metleg’s arrest.
Mr Metleg’s arguments
Mr Metleg argued that there was no evidence that Ms Schwarz was a person who met the description in s 19(7)(a) of the Act. For the purposes of ground 1 Mr Metleg argued that the United States had failed to prove before her Honour, on the material which I have described, that a properly authenticated arrest warrant had been produced because the warrant exhibited to Mr Wehby’s affidavit was not properly authenticated.
In relation to ground 2 he submitted, an additional reason that the warrant was not properly authenticated was the lack of evidence concerning Ms Schwarz’s capacity. He contended that the presence on the copy of the warrant of merely a seal containing Ms Schwarz’s signature as Deputy Clerk to support the assertion that it was a true copy of the original was not proof of those facts. Mr Metleg argued there was no evidence that Ms Schwarz was, relevantly, a person who was an officer in, or of, the United States or otherwise establishing her status. He argued that the United States had to prove her to be a public official. He relied for that purpose on a decision of a judgment from the then Colony of Hong Kong: Government of the USA v Ng Hung Yiu [1991] HKLY 560. There, Macdougall JA, sitting at first instance, held that a warrant had not been adequately authenticated because it had not been sealed with the official seal of the Department of State or the Secretary of State of the United States or otherwise authenticated by being certified by a competent authority. His Lordship found that the officer from the United States Attorney’s Office in that case had not deposed that the copy of the warrant of arrest had been certified to be a true copy of the original by the Deputy Clerk of the Court and that that Deputy Clerk was an officer of the US District Court authorised under the laws of the United States to make the certification in respect of warrants. Accordingly, he found that the requirements of the extradition treaty there had not been established and ordered the person’s release.
Mr Metleg argued, that in the absence of admissible evidence that Ms Schwarz was an officer in, or of, the United States, it was not open to the magistrate to make the order she did. He contended that there was no evidence before her Honour as to whether a Deputy Clerk was such an officer within the meaning of the Act or the treaty, and that for that reason the United States had failed to prove that Mr Metleg was liable to surrender.
In relation to ground 3, he argued that the requirements of s 19(7)(a) and (b) were cumulative and that the mere fact that the arrest warrant formed part of a bundle, sealed together with, and forming part of, the request by Secretary Kerry to the Australian Government did not authenticate every document within the bundle or satisfy the requirement of s 19(7)(b) that the document be certified by a judge, magistrate or officer in, or of, the United States.
Mr Metleg also argued on the basis of the disconformity between the superseding indictment and the form of the arrest warrant in which only the indictment box was ticked to identify the basis on which it was issued, both of which Mr Wehby had annexed to his first affidavit. Mr Metleg contended that the placing of the tick in the indictment box on the warrant meant that it was impossible to satisfy the requirements of Art XI(3) of the Treaty. Mr Metleg argued that the copy of the warrant was based on an indictment, and not the superseding indictment, and accordingly it did not meet the description of the document required by Art XI(3)(a). He argued that alternatively if the warrant did satisfy Art XI(3)(a), there was no copy of the charging document, because the original indictment (to which the tick on the warrant referred) was not included in the material in the United States’ extradition request.
Consideration
I reject grounds 1 and 2. Ms Schwarz was the issuing officer, identified as such, on the face of the arrest warrant. I am of opinion that the inevitable inference is that for the purposes of the law of the United States, first, a warrant in the form in which the warrant was signed by her as issuing officer, was sufficient to authorise the lawful arrest of Mr Metleg in that country. Secondly, Ms Schwarz was identified in the document as the criminal docketing supervisor, issuing officer of the warrant and also as the Deputy Clerk of the United States District Court for the Middle District of Tennessee. She had also certified the copy of the arrest warrant to be a true copy. In McLain 559 F. Supp (2d) at 985, Judge Schiltz adopted on review the finding of the Magistrate Judge (set out at 992) who held that an arrest warrant issued pursuant to r 9 of the Federal Rules of Criminal Procedure (US) “was signed by the deputy clerk and is therefore sufficient”.
In Cabal v United Mexican States (No 3) (2000) 186 ALR 188 at 252-256 [168]-[180], French J considered what were the requirements for sealing and authentication under s 19(7) and reviewed the authorities in this Court on that question. He held that the requirement for authentication by official or public seal in s 19(7)(b) could be satisfied by the attachment of a single seal to a bound together bundle of supporting documents (186 ALR at 253-254 [172]). He relied on the decision of the New South Wales Court of Appeal in Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15 at 23. There Wallace P, Walsh and Holmes JJA said:
“In the present case the requisite seal duly appears on the first or covering document of a bundle which is physically integrated and we think this is sufficient to satisfy the requirements of s 15 … We consider it to be immaterial that the Attorney-General, when affixing the seal on the front certificate recited that he had caused the seal to be affixed in witness of his certificate relating to the appointment of a District Court Judge. The fact is that the seal appears on one of the pages of an integrated bundle of documents which includes the warrant and this in our opinion is sufficient.”
Here, the documents comprised in Secretary Kerry’s request were apparently bound together and sealed with the seal of the Department of State of the United States. French J held that such a method of sealing sufficed for the purposes of s 19(7)(b). An official or public seal will meet the requirements of s 19(7)(b) if it is placed on the first page of a bundle of documents that are physically integrated or bound together and so placed or positioned that it relates to the whole of the bundle. In my opinion, her Honour correctly found that to be the case here: see also Bennett v United Kingdom (2000) 179 ALR 113 at 123-125 [25]-[37] per Katz J.
Here, Secretary Kerry’s authentication of the whole of the bundle satisfied the requirement of s 19(7)(b). Each of the documents incorporated in the request was bound together in the bundle and purported to be sealed with an official or public seal of, relevantly, a Minister, namely, the Secretary of State of the United States of America within the meaning of s 19(7)(b)(i) that was provided by Secretary Kerry to the Minister.
The warrant on its face purports to have been signed by Ms Schwarz in her capacity as its issuing officer. She also purported to certify that it was a true copy. By that purported certification she authenticated the warrant within the meaning of s 19(7)(b)(i) because in doing so she acted as an officer of the Government of the United States of America, being an officer of its third branch of that country’s Government, the Judicature under Art III of the United States’ Constitution. But in any event, Secretary Kerry’s purported sealing of the bundle was sufficient authentication.
I do not find the decision of Macdougall JA in Ng [1991] HKLY 560 on a different legislative scheme to be of assistance. The Hong Kong Court of Appeal dismissed an appeal by an alleged co-offender from the committal order of a different judge on the same law and evidence: Choi Sze Yuen v Government of the United States of America (CACV 000014/1992 Unreported, 10 June 1992). There, Fuad V-P, with whom Penlington and Nazareth JJA agreed, held that a document that purported to be sealed with the seal of a foreign court was sufficient to authenticate the document as such (see at pp 11, 13). He pointed out that Macdougall JA’s attention had not been drawn to the critical legislative provision in the Evidence Ordinance dealing with admissibility and authentication of a document purporting to be sealed with the seal of a foreign court. There, the Deputy Clerk of the United States District Court for the Southern District of New York had signed the arrest warrant over that Court’s embossed seal (see p 5). Fuad V-P said that the presence of the seal on the warrant satisfied the relevant requirement there for proper authentication (p 13).
In my opinion, here Ms Schwarz’s signatures on the warrant as, first, issuing officer, or, secondly, certifying the true copy purported to be a signature or certification of the warrant that, on its face, stated that it was a copy of the original held and or retained on the file of the District Court. According to Mr Wehby’s evidence, Ms Schwarz was an officer in or of the United States and she purported to sign the warrant in that capacity as its issuing officer and to certify it as a true copy of the original.
I am satisfied that her Honour was correct to find that the warrant satisfied the requirements of s 19(3)(a) and (7). For these reasons I reject grounds 1 and 2.
I reject Mr Metleg’s arguments on ground 3. It is obvious from the form of the material incorporated with Mr Wehby’s two affidavits, including the imprints of immediately sequential document and page numbers on the copies of the superseding indictment and warrant from the District Court’s file, that the superseding indictment was filed immediately before the warrant was issued. It is patent that Ms Schwarz made a mere and inconsequential error ticking “indictment” rather than “superseding indictment” on the arrest warrant. I am satisfied by Mr Wehby’s evidence and the face of the documents in evidence that this was a slip that does not affect the validity of the warrant for the purposes of the Act. While it was not correct for the United States in its submissions to her Honour and to me, and for Her Honour to describe this as a “typographical error”, it is of the same character.
The evidence in Mr Wehby’s affidavit demonstrated that the superseding indictment was submitted and signed by him on the day that it was found as a true bill by the grand jury. The next numbered document on the District Court’s file was the arrest warrant. It had also been given the next page number on the file. The warrant referred to each of the eight counts found against Mr Metleg by the grand jury in the superseding indictment by number and brief references to the sections in the USC on which the counts were founded that were the subject of the superseding indictment. I am satisfied that the arrest warrant, plainly, was based on, and would be understood to be based on, the superseding indictment.
Mr Metleg also argued that one could speculate that there may be another document, being the indictment referred to in the ticked box that set out offences of the kind or a different kind referred to in the warrant, but not the same as those in the superseding indictment. In my opinion, on the evidence before me, such a conclusion is inconceivable having regard to the form of the District Court’s file as evidenced by the imprints at the bottom of the pages and by the evidence of Mr Wehby by which I am satisfied that ground 3 has no substance.
The copy of the warrant included in the extradition request meets the description in Art XI(3)(a) of the Protocol to the Treaty and the superseding indictment meets the description in Art XI(3)(b).
Conclusion
For these reasons, the application must be dismissed.
When I was part way through giving ex tempore reasons on 5 December 2013 at the conclusion of oral argument, I began to deal with the only then remaining live issue on Mr Metleg’s challenge which had been ground 4, based on the alledged failure of the United States to establish dual criminality under s 19(2)(c). I found that I could not deal with that issue because the parties had not put before her Honour or me all the relevant legislation. Accordingly, I adjourned until 2.15 pm on 6 December 2013 so that this issue could be addressed. Early on 6 December 2013 counsel for Mr Metleg communicated to his counterpart and my associate that his client abandoned ground 4 because he could not argue that his client’s alleged conduct or equivalent conduct would not have constituted an extradition offence in relation to New South Wales.
The onus of establishing dual criminality was always on the United States. The adjournment would not have been necessary had it properly prepared on the statutory justification on that point before her Honour and me. In addition, Mr Wehby’s second affidavit cured obvious deficiencies of relevance in his first affidavit as to whether the warrant related to the changing document for the purposes of Art XI(3). That only occurred because I had caused my associate to raise the question with the parties shortly prior to the hearing. Mr Metleg promptly made appropriate concessions. The hearing was prolonged and made more complex because of the lack of attention to important details by the United States. For these reasons I considered it appropriate to order that Mr Metleg pay only two-thirds of the costs of the United States.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 7 January 2014
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