Ngo v United States of America & Anor

[2008] NSWSC 1186

CITATION:	Ngo v United States of America & Anor [2008] NSWSC 1186
HEARING DATE(S):	27/10/2008
JUDGMENT DATE :	13 November 2008
JUDGMENT OF:	Hoeben J
DECISION:	I confirm the orders made by the Magistrate on 29 April 2008. I dismiss the plaintiff’s summons. Plaintiff is to pay the defendants' costs.
CATCHWORDS:	EXTRADITION - Treaty - United States of America - construction - description of facts supporting extradition request - reasonable grounds for believing offence committed by person sought - whether sufficient information available to Court to satisfy test - whether sufficient information before Court to satisfy test in respect of ingredients of offence under United States law - whether submission with evidentiary implications can be made to Court when submission not made to Magistrate.
LEGISLATION CITED:	Criminal Code Act 1995 (Commonwealth) Extradition Act 1988 (Commonwealth) Extradition (United States of America) Regulations 1988 (Commonwealth) Treaty on Extradition between Australia and the United States of America (May 1976, as amended) United States Criminal Code - sections 846 and 841(a)(1)
CATEGORY:	Principal judgment
CASES CITED:	Cabal v United Mexican States [2001] FCA 427, (2001) 108 FCR 311 Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [115] Dutton v O’Shane (2003) 132 FCR 352 at 386 Federal Republic of Germany v Parker (1998) 84 FCR 323 George v Rockett and Anor (1990) HCA 26; (1990) 170 CLR 104 Gerakiteys v The Queen (1984) 153 CLR 317 Hermanowski v United States of America (2006) 149 FCR 93 Jacobi v United States of America (1996) FCA 962 at [8] Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 Todhunter v United States of America (1995) 57 FCR 70 at 89-90
PARTIES:	Truong Lam Ngo - Plaintiff United States of America - First Defendant Her Honour Magistrate Patricia O'Shane - Second Defendant
FILE NUMBER(S):	SC 12228/2008
COUNSEL:	Mr H Dhanji - Plaintiff Dr J Renwick - First Defendant Submitting Appearance - Second Defendant
SOLICITORS:	Nyman Gibson Stewart - Plaintiff Commonwealth Director of Public Prosecutions - First Defendant IV Knight, Crown Solicitor - Second Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	O'Shane LCM
LOWER COURT DATE OF DECISION:	29 April 2008

OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 13 November 2008

12228/2008 – Truong Lam NGO v UNITED STATES OF AMERICA & Anor

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
On 29 April 2008 the second defendant, her Honour Magistrate O’Shane (“the Magistrate”) determined under s 19 of the Extradition Act 1988 (Commonwealth) (“the Act”) that the plaintiff was a person eligible for surrender in relation to an extradition offence. She issued a warrant pursuant to s 19(9) ordering that the plaintiff be committed to prison to await surrender.

2 By summons filed 13 May 2008 the plaintiff claims an order under s 21(2)(b) of the Act quashing the orders made by the Magistrate on 29 April 2008 and directing that the plaintiff be released from custody.

3 Section 21 of the Act makes provision for this Court (in the case of an order made by a Magistrate in New South Wales) or the Federal Court to review the order of a Magistrate made under s 19(9) on application made within 15 days of the making of the order. On the hearing of the application for a review of the order, the Court is to have regard only to the material that was before the Magistrate (s 21(6)(d)).

4 Two issues were argued before the Magistrate. The first was the application of s 19(2)(b), i.e. whether there were reasonable grounds to believe that the plaintiff committed the indictable offence. The second was the application of s 19(2)(c), i.e. the dual criminality requirement. Written submissions relating to each of those matters were placed before the Magistrate and oral submissions were made.

5 The Magistrate considered the s 19(2)(c) issue and found in favour of the first defendant. Regrettably, the Magistrate did not consider the s 19(2)(b) question and in her reasons, made no reference to it.

6 Before me the plaintiff maintained his position that the requirements of s 19(2)(c) had not been met. He accepted that for this submission to be successful, the decision of a Full Bench of the Federal Court in Federal Republic of Germany v Parker (1998) 84 FCR 323 would have to be overruled. Under the Act appeals from this Court go to a Full Bench of the Federal Court. The plaintiff accepted that in those circumstances, I was bound by the principle of stare decisis to follow the decision in Parker. While the plaintiff wished to preserve his right to challenge the correctness of the decision in Parker should the matter proceed further, no submissions were made to me on the s 19(2)(c) issue. Accordingly, this judgment deals only with the plaintiff’s submission that the requirements of s 19(2)(b) have not been made out by the first defendant.

The nature of a section 21 review

7 The review by this Court is a rehearing limited to the material tendered before the Magistrate whereby this Court must determine whether the orders made by the Magistrate were right or wrong. The nature of the review was described by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136:

“It seems to me clear that the review contemplated by section 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.”

8 In Dutton v O’Shane (2003) 132 FCR 352 at 386 a Full Bench of the Federal Court observed:

“The section 21 review is not one of judicial review in the strict sense. It is by way of rehearing in which the court is authorised to reach its own conclusions on eligibility for surrender, albeit it is limited in so doing by having regard only to the material before the magistrate. ( Cabal v United Mexican States [2001] FCA 427, (2001) 108 FCR 311).”

9 In Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at [17] and [18] the majority said:

“[17] In the case of review under s 21 of the Act, the Federal Court is required, if the magistrate's decision was erroneous, to determine what order should have been made by the magistrate. So much follows from s 21(2)(b) and (6) of the Act. The latter sub-section relevantly requires that the Federal Court "have regard only to the material that was before the magistrate". And s 21(2)(b) empowers that Court, if it does not confirm the magistrate's order, to quash that order and direct the magistrate either to release the person or to order that he or she be committed to prison to await surrender.
[18] Although there may be little difference in practical effect, the function of the Federal Court under s 21 of the Act is different in nature from that of a magistrate under s 19 of the Act. The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power. “

Legislative background

10 Extradition from Australia does not involve an Australian Court determining the plaintiff’s guilt or innocence. Thus s 3 of the Act identifies one of the principal objects of the Act as:

“(a) To codify the law relating to the extradition of persons from Australia to extradition countries … and, in particular, to provide for proceedings by which Courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence.”

11 By section 5 of the Act any country “that is declared by the regulations to be an extradition country” is an extradition country for the purposes of the Act. By regulation 3 of the Extradition (United States of America) Regulations 1988 (Commonwealth) the United States of America was declared to be an extradition country under the Act.

12 Section 11 of the Act provides for the making of regulations which would modify the application of the provisions of the Act in relation to specified extradition countries. Relevantly it provides:

“11(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations …
(1C) For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.”

13 Regulation 4 of the Extradition (United States of America) Regulations provides:

“The Act applies in relation to the United States of America subject to 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 (being, respectively, the Treaty a copy of the text of which is set out in Schedule 1 and the Protocol a copy of the text of which is set out in Schedule 2).”

14 Under the Treaty on Extradition between Australia and the United States of America 1974, done at Washington on 14 May 1974 (The Treaty) as amended by the Protocol, provision was made for requests for extradition. Article XI of the Treaty, as replaced by Article 7 of the Protocol, relevantly provides:

(1) All requests for extradition shall be made through the diplomatic channel.
(2) The request for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a description of the conduct constituting the offence;
(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and
(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings
(3) A request for the extradition of a person who is sought for prosecution ... 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; and

(c) a description of the facts, by way of affidavit, statement or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.”

15 Sections 19(1) and (2) of the Act relevantly provide:

“(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) ... 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;
…”

16 By section 19(3) of the Act “supporting documents” are defined to mean:

“(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;
…
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.”

Evidence and Supporting Documents

17 In order to understand the plaintiff’s submissions, it is necessary to set out some of the documents which were produced to the Magistrate. The

s 16 Notice identified the “extradition offence” in the following terms:

“Conspiracy to distribute methamphetamine, MDMA and marijuana contrary to title 21 United States Code sections 846 and 841(a) (one offence).”

18 Count 1 of the indictment (being the only count which concerned the plaintiff) identified the “Objects of the Conspiracy” in the following terms:

“Beginning on a date unknown to the Grand Jury and continuing to on or about October 15 2007 in Orange County, within the central district of California, and elsewhere defendants Minh Tan Le … Thai Phi Do … Truong Lam Ngo … and others known and unknown to the Grand Jury knowingly and intentionally conspired and agreed with each other to:
(1) Knowingly and intentionally distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, approximately 8910 grams, a schedule 11 controlled substance in violation of title 21, United States Code, section 841(a)(1);
(2) Knowingly and intentionally distribute approximately 25000 grams of a mixture or substance containing a detectable amount of 3,4methylenedioxymethamphetamine (also known as MDMA), a schedule 1 controlled substance, in violation of title 21, United States Code, section 841(a)(1); and
(3) Knowingly and intentionally distribute a mixture or substance containing a detectable amount of marijuana, less than 50 kilograms, a schedule 1 controlled substance in violation of title 21, United States Code, section 841(a)(1).”

19 Under the heading “Means by which the Objects of Conspiracy were to be Accomplished” in relation to Count 1, the following allegations were made against the plaintiff:

“The objects of the conspiracy were to be accomplished in substance as follows:
…
(5) Defendant Truong Ngo, a resident of Australia, would purchase methamphetamine from defendant Thai Do and would arrange for the delivery of the methamphetamine in Australia for redistribution.”

20 Under the heading “Overt Acts” in relation to count 1 the following was alleged against the plaintiff:

“In furtherance of the conspiracy, and to accomplish the objects of the conspiracy, defendants Minh Le, Thai Do … Truong Ngo … and other co-conspirators known and unknown to the Grand Jury, committed various overt acts within the central district of California and elsewhere, including but not limited to, the following: …
(20) In March 2007, defendants Thai Do, Minh Le and Truong Ngo arranged for the shipment of methamphetamine from Vancouver Canada to defendant Truong Ngo in Sydney Australia.
(21) Between March 23, 2007 and April 5 2007 defendants Thai Do and Minh Le sent to Sydney, Australia, approximately 8910 grams of methamphetamine.
(22) On or about May 11, 2007, defendants Thai Do and Minh Le discussed the distribution of drugs in Australia and the collection of proceeds from drug sales.”

21 Title 21 U.S.C. section 841 relevantly provides:

“(a) Unlawful acts.
Except as authorised by this sub-chapter, it shall be unlawful for any person knowingly or intentionally -
(1) To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance;
…”

22 Title 21 U.S.C. section 846 relevantly provides:

“Any person who attempts or conspires to commit any offence defined in this sub-chapter shall be subject to the same penalties as those prescribed for the offence, the commission of which was the object of the attempt or conspiracy.”

23 Included in the evidence upon which the first defendant relied, was an affidavit of Carmen Luege, who is a lawyer employed by the United States Department of Justice as an assistant United States Attorney for the central district of California. Her affidavit sets out a number of formal matters required by the Act. No issue is taken with any of those.

24 In paragraph 9 Ms Luege makes it clear that in seeking the extradition of the plaintiff the first defendant relied only upon count 1. In paragraph 11 she summarised the effect of count 1 as follows:

“11 The indictment charges Ngo with conspiracy to commit a substantive offence against the United States, specifically, to distribute methamphetamine, MDMA and marijuana in violation of Title 21 USC sections 846 and 841(a)(1). Conspiracy to distribute methamphetamine, MDMA and marijuana is a conspiracy for which the United States may extradite under its laws.”

25 Paragraphs 12 and 13 of the affidavit set out the ingredients for the offence of conspiracy as charged against the plaintiff.

“12 Under United States law, a conspiracy is simply an agreement to commit one or more criminal offences, in this instance to distribute methamphetamine, MDMA and marijuana. The agreement on which the conspiracy is based need not be written or even verbal. It may be simply a tacit understanding by two or more persons to do something illegal. The conspirators enter into a partnership for a criminal purpose in which each member or participant becomes a partner or agent of every other member. A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the identities of all other members of the conspiracy. If a person has an understanding of the unlawful nature of a plan and knowingly and wilfully agrees to it, joining in the plan, that is enough to convict him of conspiracy even though he did not participate from the beginning to the end of the conspiracy and may play only a minor part. In fact, a conspirator can be held criminally responsible for all reasonably foreseeable actions undertaken by other conspirators in furtherance of the criminal partnership. Moreover, because of this partnership, statements made by a conspirator in the course, and while he is a member, of the criminal conspiracy are admissible in evidence not only against that conspirator, but also against all other members of the conspiracy. This is so because, as stated earlier, a conspirator acts as an agent or representative of the other conspirators when he is acting in furtherance of their illegal scheme. Therefore, statements of conspirators made in furtherance of the conspiracy may be deemed to be the statements of all conspirators.
Under United States law, the crime of conspiracy is an independent offence, separate and distinct from the commission of any specific “substantive crimes”. Consequently, a conspirator can be found guilty of the crime of conspiracy to commit an offence even where the substantive crime that was the purpose of the conspiracy is not committed. The Congress of the United States has deemed it appropriate to make conspiracy, standing alone, a separate crime, even if the conspiracy is not successful, because collective criminal planning poses a substantial threat to the public safety and welfare just as individual conduct does and increases the likelihood of success of a particular criminal venture.

13 To satisfy its burden of proof and convict Ngo of conspiracy to distribute methamphetamine, MDMA and marijuana in violation of 21 USC sections 841(a) and 846, the Government, at trial, must establish beyond a reasonable doubt each of the following essential elements:
(1) That two or more persons entered into an agreement to commit the underlying offence, i.e. to distribute methamphetamine, MDMA and marijuana; and
(2) That Ngo knowingly and wilfully became a member of the conspiracy, knowing the object and intending to help accomplish it.
The United States will establish these two elements beyond a reasonable doubt through testimony of law enforcement officers, intercepted wire communications, methamphetamine and MDMA seized in the United States, Australia and elsewhere, lab analyses, telephone records and photographs.”

26 The first defendant also relied upon an affidavit of Special Agent Michael D Miller of 2 February 2008 and a supplementary affidavit of Agent Miller of 29 February 2008. Those affidavits provide details of the conduct of the plaintiff relied upon by the first defendant for the purposes of satisfying section 19 of the Act.

27 The conduct set out in the affidavits was summarised in the written submissions of the first defendant before the Court in this review hearing. Other than a correction which I have incorporated, I do not understand this summary to be controversial.

“(a) The Drug Enforcement Agency was investigating the activities of Thai Do, who was acting as a middleman arranging a large, international drug transaction. A wireless telephone used by Thai Do was lawfully intercepted (target telephone 5) between 23 March 2007 and 10 April 2007, and on that last date, Thai Do stopped using that telephone.
(b) Thai Do using target telephone 5 telephoned three Australian mobile numbers: 412 199946, 419 310271 and 439 670666.
(c) The 412 199946 telephone was registered in the name of Truong Lam Ngo with a date of birth of 12 February 1972 – the same name and date of birth as the plaintiff.
(d) A monitor employed by the Drug Enforcement Agency, states that the voice using 412 199946 is the same voice as used the two other mobile telephones 419 310 271 and 439 670666.
(e) On 23 March 2007 Thai Do telephoned 419 310271 (call 23) and told the person he was speaking to that “they” required a “lot to the addresses”.
(f) On 25 March 2007, Thai Do telephoned 419 310271 (call 29) and the person he spoke to told Do that he was planning to travel from Australia to Vietnam. They also discussed the arrival date of a shipment to Australia and Thai Do asked the person to postpone his trip to Vietnam to do one more shipment.
(g) On 25 March 2007, Thai Do telephoned 419 310271 (call 35) and was told that the old address was correct and there was a discussion about how long it would take to sell the “cars”.
(h) On 26 March 2007 Thai Do telephoned 419 310271 (call 110) and said that it would arrive on the 30th. The person on 419 310271 speaking to Thai Do said that he could make arrangements and asked how many cars there would be. Thai Do said “four cars” and that the person to whom he was speaking would be gone already. Special Agent Miller believes that the “4 cars” refers to shipments of methamphetamine.
(i) On 28 March 2007 Thai Do telephoned 439 670666 (call 134) and said that they would send the cars a little bit later. The person he was speaking to said that he was going out of town tomorrow and that Thai Do was to call brother SA on the same telephone number.
(j) Special Agent Miller notified Federal Agent Mark Webster of the Australian Federal Police of Mr Ngo’s planned departure. The Australian Federal Police put Mr Ngo on passport alert.
(k) The defendant Truong Lam Ngo (date of birth 12 February 1972) left Australia for Vietnam on 29 March 2007 and was photographed at the airport.
(l) On 29 March 2007, Thai Do telephoned 439 670666 (call 150) and told someone that the one he had asked “Lam” to do, it would not come until Monday. Thai Do referred to it as the one at the “light bulb place”.
(m) FA Webster told Agent Miller that on 30 March 2007, the Australian Customs Service seized four packages, each weighing about 990 grams, of crystal methamphetamine from an address in Vancouver to an address in Sydney.
(n) On 1 April 2007, Thai Do telephoned 439 670666 (call 210) and told the person that “they would arrive today” from two different companies.
(o) FA Webster says that on 1 April 2007, ACS seized a package addressed to Signice Neon in Sydney. It contained 990 grams of methamphetamine and had been shipped to Sydney.”

Plaintiff’s Submissions

28 In relation to the s 19(2)(b) issue, the plaintiff made three submissions. Underlying all of the submissions was the proposition that the description of facts by Ms Luege and by Special Agent Miller failed to set forth reasonable grounds for believing that the offence with which the plaintiff had been charged had been committed by him. For the documents to satisfy that requirement, the plaintiff submitted that the Court had to consider the elements of the United States offence and whether the description of the facts gave rise to the offence charged. The plaintiff said this was the test applied in Todhunter v United States of America (1995) 57 FCR 70 at 89-90.

29 The first submission made on behalf of the plaintiff is that the evidence is insufficient to establish the elements of the United States offence, i.e.:

(a) That two or more persons entered into an agreement to commit an underlying offence, i.e. to distribute methamphetamine; and

(b) That the plaintiff knowingly and willingly became a member of the conspiracy knowing the object and intending to help accomplish it.

30 The plaintiff submits that the evidence goes no further than to establish a simple purchaser/seller arrangement albeit for a substantial quantity of drugs.

31 The plaintiff submits that there is no evidence of any agreement to distribute methamphetamine. The mere fact that Do as the seller or provider of the methamphetamine would reasonably expect that the money for its purchase would come from its on-sale does not mean that he had any interest in that on-sale. Put another way, the plaintiff submits that there is no evidence of a joining by him with Do in a common plan for the distribution of methamphetamine in Australia.

32 The plaintiff submits that the references in the telephone intercepts described by Special Agent Miller to delays of four or five days in the making of payment for the methamphetamine is something which could occur in any sale transaction of a large quantity of drugs.

33 In order to evaluate this submission, it is necessary to determine the nature of the test which has to be satisfied by the first defendant so that there are “set forth reasonable grounds for believing that an offence has been committed and that the plaintiff committed it”. The most recent case on this issue is Hermanowski v United States of America (2006) 149 FCR 93, a decision of the Full Bench of the Federal Court. The usefulness of that case is that it dealt only with the s 19(2)(b) question.

34 The Court referred with approval to the statement of principle of Kiefel J in Jacobi v United States of America (1996) FCA 962 at [8]. That case was concerned with whether the factual material provided by the requesting country was sufficient to satisfy the requirements of Art XI (3)(c). Her Honour observed at [8]:

“A belief may then be held without addressing all of the questions which might arise when reading a narrative of events. It may be compared with an approach which requires the resolution of those matters to reach the requisite level of satisfaction to either a civil or criminal standard of proof. Nevertheless, that does not mean that a narrative of events provided, as the description of facts required by the Article, must be taken at its highest or that questions which, as a matter of common sense, arise with respect to the story put forward are to be shut out from consideration. It may be that a statement of the facts is in its detail so general and unspecific, so confusing or apparently unreliable, that it could not be said to be arrived at by a basis in reason. Although lacking the requirement of proof one must be able to reason towards the belief. So whilst there may remain some element of surmise or conjecture, if the deficiencies in the factual outline are too great, the test will not be satisfied.”

35 The Full Court also took into account the following passages from George v Rockettand Anor (1990) HCA 26; (1990) 170 CLR 104:

“When a statute prescribes that there must be "reasonable grounds" for a state of mind -- including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
…
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.” (at 122 and 116)

36 By reference to those statements of principle, the Court concluded as follows:

“58 … Article XI(3)(c) requires something different from that required by Article XI(2)(b). In our opinion, the key to the difference lies in the nature of the “facts” to be described. The “facts” referred to in Art XI(3)(c) are not necessarily restricted to the “facts” constituting the alleged criminal conduct, but may include facts from which the reasonableness of the relevant belief can be established. Those facts may include the state of the investigations conducted to that time. This reflects a circumstance that a reasonable belief that an offence has been committed and that the person sought committed it might be based upon material falling well short of that required to be tendered to prove a prima facie case (as had formerly been required by the Treaty). When a wider view of the relevant facts is taken, the apparent ellipsis in the provision disappears. The “facts”, as so understood, would (and should) set forth facts disclosing the reasonable grounds for belief.
59 In our opinion, a description of the “facts” requires no more than a verbal portrait of the facts. The sufficiency of that portrait will be determined by questioning whether it sets forth reasonable grounds for believing that an offence has been committed and that the person whose extradition has been sought committed it. In this regard we consider that “setting forth” should be treated as equivalent to “that would, if correct, provide”.
60 A clear distinction is to be drawn between a description of the facts that would, if correct, establish a prima facie case, provide reasonable grounds for believing or reasonable grounds for suspecting that an offence has been committed. Remembering that eligibility for surrender is to be determined without determining the guilt or innocence of the person whose extradition is sought, we do not accept the appellant’s submission that the description of the facts must descend to the detail of how the facts will be proven.
61 Article XI(3)(c) will be satisfied if the description of the facts provides reasonable grounds for the requisite belief, in this case an inclination of the mind towards the proposition that the relevant offences have been committed and that the appellant committed them. This would be sufficient even if the description of the facts falls short of proof.”

37 Applying that approach, it seems to me that the error in the plaintiff’s submission is that, in reality, it is directed at a failure to establish a prima facie case, as distinct from that which is required by Article XI(3)(c), i.e. an inclination of the mind towards the proposition that the relevant offences have been committed, and that the appellant committed them.

38 Assistance on this question is provided by paragraphs 5(a) – (c) and 7 of the supplementary affidavit of Special Agent Miller. The telephone conversation summarised in paragraph 5(a), makes it clear that Do is not merely interested in the supply of methamphetamine to the plaintiff for which he hopes to be paid, but has an interest in the distribution of the methamphetamine. That, it seems to me, is a reasonable inference to be drawn from the communication by Do to the plaintiff that “they” were badly in need of addresses in order to send out “a lot to the addresses”. The interpretation by Special Agent Miller that Do was asking the plaintiff to get addresses which drug suppliers could use to ship drugs to Australia, was not only open but seems likely.

39 Similarly, the telephone conversation summarised in paragraph 5(b) goes beyond a mere discussion about obtaining payment for the sale of the drugs and shows an interest on the part of Do in the process of distribution.

40 Paragraph 5(c) is consistent with that interpretation.

41 Paragraph 6, and in particular paragraph 7, are important because they provide support for the proposition that what was being discussed was not a simple sale transaction between Do and Ngo with methamphetamine moving from the United States to Australia, but encompassed a more complex arrangement whereby contact was made by Do with Canada, as a result of which methamphetamine was sent to Australia. What is significant is that the methamphetamine does not seem to have been sent to Ngo, but to other locations in Australia (such as Signice Neon). This provides support for the proposition that the plaintiff was not simply a purchaser of methamphetamine from Do but was himself a middleman in the distribution of that substance to various addresses in Australia in circumstances where those addresses were known to the shipper, i.e. Le in Canada.

42 Applying the Hermanowski test, I am satisfied that those facts provide reasonable grounds for an inclination of the mind towards the proposition that the plaintiff was part of an overall arrangement or agreement for the on-selling of methamphetamine in Australia and that he was participating in a common plan to that effect with Do. The telephone intercepts make it clear that insofar as the Australian distribution is concerned, the plaintiff was a knowing and willing participant.

43 The second submission is that even if there were reasonable grounds for believing that an offence had been committed, the description of the facts does not establish that the offence is that with which the plaintiff has been charged. This is because the underlying offence charged in the indictment is the distribution of methamphetamine, MDMA and marijuana in the United States and elsewhere. The plaintiff submitted that there was no evidence that he knowingly or willingly became a member of any conspiracy to distribute MDMA and marijuana in the United States or elsewhere. It was submitted that if the plaintiff were part of a conspiracy, he was not a party to the conspiracy actually charged against him.

44 The plaintiff referred to paragraphs (2) and (3) of the Objects of the Conspiracy. The plaintiff submitted that it was common ground that he had no involvement in those matters yet they formed part of count 1 with which he had been charged. The plaintiff submitted that the relevant plan was a plan for the distribution of a variety of drugs throughout the United States of America and elsewhere and that there was no evidence that he had any interest in, nor had agreed to, that plan. The evidence went no further than to implicate him in a plan for the distribution of methamphetamine in Australia.

45 In support of this submission, the plaintiff referred the Court to Gerakiteys v The Queen (1984) 153 CLR 317. That was a case where the appellant had been charged with conspiring with nine other persons to engage in social security fraud. His conviction was overturned because, while there was evidence that he had conspired with some of the nine persons, there was no evidence to support a conspiracy with all of them. The evidence did not support the offence set out in the indictment.

46 The answer to this submission is to be found in the affidavit of Ms Luege, paragraphs 12 and 13, where she identifies the ingredients of the offence of conspiracy under United States law. The offence envisages that a person may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or the identities of other members of the conspiracy. Ms Luege goes on to say:

“If a person has an understanding of the unlawful nature of a plan and knowingly and wilfully agrees to it, joining in the plan, that is enough to convict him of conspiracy even though he did not participate from the beginning to the end of the conspiracy and may play only a minor part.”

47 The “unlawful nature of the plan” is the distribution of prohibited drugs. In that regard, paragraph 13 of the affidavit sets out what has to be proved:

“The government, at trial, must establish beyond a reasonable doubt each of the following essential elements:
(1) That two or more persons entered into an agreement to commit the underlying offence, i.e. to distribute methamphetamine, MDMA and marijuana and
(2) That Ngo knowingly and wilfully became a member of the conspiracy knowing the object and intending to help accomplish it.”

48 For the offence to be established, it is not necessary that the plaintiff participated in every aspect of the conspiracy or was part of it for the whole of its duration. Playing a minor part is sufficient. As indicated in respect of the plaintiff’s first submission, the evidence of Special Agent Miller allows an inference to be drawn that two or more persons entered into an agreement to commit the underlying offence, i.e. the distribution of prohibited drugs, and that the plaintiff knowingly and wilfully became a member of the conspiracy knowing that object and intending to help accomplish it, albeit his participation related only to the distribution of methamphetamine in Australia.

49 As was put on behalf of the first defendant in its oral submissions, there is a danger in this matter of reading down the conspiracy by reference to the means by which the objects of the conspiracy were to be accomplished on the part of the plaintiff. The conspiracy as set out in the indictment, however, is broader than that. It refers to knowingly and intentionally distributing certain amounts of drugs in violation of the US Code. Even though the plaintiff only came in at a particular point and performed a particular function, it is still capable of being established that he was part of the simple but wide conspiracy described in the indictment. This is clear from the definition of conspiracy under US law.

50 The decision in Gerakiteys is not of assistance. That was concerned with the position at law in the context of the wording of a different indictment, expressed in different terms, after all the evidence at trial had been led. The Court there was not concerned with questions of reasonable belief, but rather with persuasion beyond reasonable doubt.

51 I am satisfied, on the definition of conspiracy in the affidavit of Ms Luege that the description of the facts is capable of establishing the offence with which the plaintiff has been charged. It follows that those facts set forth reasonable grounds for believing that the offence with which the plaintiff has been charged has been committed and that the plaintiff committed it.

52 The third submission by the plaintiff raises an extraterritorial argument. The plaintiff accepted that this argument had not been raised before the Magistrate.

53 The plaintiff submitted that assuming an agreement had been made out, what was agreed to was the distribution of prohibited drugs within Australia. Whether that conduct was contrary to sections 841 and 846 of the United States Criminal Code would depend on whether those sections had extraterritorial application.

54 The plaintiff submitted that an assumption as to extraterritoriality could not be made without some evidence. In the absence of evidence that those sections had extraterritorial application, one would not have the requisite reasonable grounds to form a belief to that effect. The plaintiff submitted that since the unlawful conduct relied upon occurred in its entirety within Australia and there is no evidence that the distribution of drugs in Australia was contrary to U.S.C. sections 841 and 846 there could not be reasonable grounds for believing that an offence contrary to those sections had been committed.

55 The first defendant objected to the plaintiff being able to rely upon the extraterritorial argument. It submitted that had this matter been raised before the Magistrate, evidence could and would have been led on behalf of the first defendant as to the extraterritorial effect of sections 841 and 846 of the United States Code.

56 If the extraterritorial argument, now raised by the plaintiff for the first time, could have been met by evidence if it had been raised below, the plaintiff should not be allowed to raise that argument now. In Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [115] French J (as he then was) determined that it was open to a party to raise new points of law that did not have evidentiary implications. His Honour’s determination in that regard was noted by the Full Court in Cabal v United Mexican States [2001] FCA 427 without criticism. Since this submission does have evidentiary implications, the plaintiff should not be allowed to pursue it and should be bound by the way in which he conducted his case before the Magistrate.

57 If I am wrong in that conclusion, the relevant principle to be applied is that “in the absence of evidence [the content of foreign law] is assumed to be the same as domestic law” (Hermanowski at [94]). Australian law in this field does have extended geographical jurisdiction. One only has to look at s 15.2 of the Criminal Code Act 1995 (Cth), which has extraterritorial operation in respect of drug importing offences. Following that approach, I am prepared to accept that sections 841 and 846 of the United States Code have extraterritorial effect.

58 There is another way of approaching the plaintiff’s submission. When making the submission, the plaintiff conceded that part of the agreement pursuant to which the prohibited drugs were imported into Australia, was made in the United States in that Do was present in the United States at the time of the discussions. That being so, the question of whether it is necessary to give sections 841 and 846 extraterritorial effect, depends upon how one characterises the “unlawful act”. If one characterises it as including not only the unlawful distribution of drugs within Australia but the agreement to do so, then a sufficient nexus arises with the United States so as to give rise to the operation of sections 841 and 846 without having to give those sections extraterritorial effect.

Conclusion

59 For the above reasons, I do not accept the plaintiff’s submissions and I am satisfied that the documents required to be produced to the Magistrate pursuant to s 19(2)(b) were in fact produced. Although the Magistrate did not direct her mind to s 19(2)(b), her conclusion that the plaintiff was a person eligible for surrender in relation to the extradition offence was correct. It follows that the plaintiff’s application under s 21(2)(b) of the Act fails. Because I am bound by Parker’s case, the plaintiff’s application under s 19(2)(c) also fails.

60 The orders which I make are as follows:

(1) I confirm the orders made by the Magistrate on 29 April 2008.
(2) I dismiss the plaintiff’s summons.
(3) The plaintiff is to pay the defendant’s costs of this review hearing.

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