O'Donoghue v Ireland - [2009] FCA 618

FEDERAL COURT OF AUSTRALIA
O'Donoghue v Ireland [2009] FCA 618
EXTRADITION – review of magistrate's decision pursuant to section 21(2) of Extradition Act 1988 (Cth) – supporting documents constitute a duly authenticated statement in writing setting out the conduct constituting the offence - alleged conduct constituted an extradition offence in Western Australia.
Extradition Act 1988 (Cth): s 3(a), s 10(2) s 12(1), s 19, s 19(2), s 19(2)(a), s 19(2)(c), s 19(3)(c)(i), s 19(3)(c)(ii), s 19(9), s 19(10), s 21(1), s 21(2), s21(6)(g), s 22(5)
Extradition Regulations (Cth) : reg 3,
Criminal Code (WA): s 7, s 7(d), s 371, s 371(1), s 376, s 378, s 409, s 409(1),
s 409(3)
Criminal Code (Qld): s 427(1)
Larceny Act 1916 (Ireland): s 20(1)(iv)(a), s 32(1)
Larceny Act 1990 (Ireland) s 9
Ministers and Secretaries Act 1924 (Ireland)
Extradition (Ireland) Regulations (Ireland) reg 5
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
DeBruyn v Republic of South Africa (1999) 96 FCR 290
Griffiths v United States of America (2005) 143 FCR 182
Harris v Attorney General of the Commonwealth (1994) 52 FCR 386
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184
McDade v The United Kingdom [1999] FCA 1868
Parker v The Queen (1997) 186 CLR 494
Timar v Republic of Hungary [1999] FCA 1518
Truong v The Queen [2004] HCA 10; 223 CLR 122
Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
VINCENT THOMAS O'DONOGHUE v IRELAND and GRAEME NEIL CALDER
WAD 46 of 2009
BARKER J
9 JUNE 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 46 of 2009

BETWEEN:
VINCENT THOMAS O'DONOGHUE
Applicant

AND:
IRELAND
First Respondent

GRAEME NEIL CALDER
Second Respondent

JUDGE:

BARKER J

DATE OF ORDER:

9 JUNE 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application for review is dismissed.
2.The applicant to pay the respondent's costs to be taxed, if not agreed.
3.The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:

8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative

8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).
4.The order made by the second respondent pursuant to s 19(9) of the Extradition Act1988 (Cth) on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act1988 (Cth).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 46 of 2009

BETWEEN:
VINCENT THOMAS O'DONOGHUE
Applicant

AND:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 618
Decision Date: 9 June 2009

CaseChat Overview and Summary

The decision in O'Donoghue v Ireland involved a review of the eligibility for surrender of Vincent Thomas O'Donoghue, who was facing extradition to Ireland on charges of fraudulent conversion and obtaining property by false pretences under Irish law. The case was heard and determined by the Federal Court of Australia. The primary legal issue before the court was whether the documents provided by Ireland in support of the extradition request were sufficient to establish that the conduct constituting the alleged offences had been properly set out, and if the conduct, if proven, would constitute an extradition offence in Western Australia.

The court considered whether the documents provided constituted a duly authenticated statement in writing setting out the conduct constituting the offences, as required by sections 19(2)(a) and 19(3)(c)(ii) of the Extradition Act 1988 (Cth). It found that the documents were sufficient to establish the requisite conduct and that the conduct, if proven, would constitute an extradition offence under Western Australian law. The court held that the documents met the legal criteria, thereby allowing the extradition to proceed. The court also addressed the issue of dual criminality, determining that the conduct alleged would indeed constitute an extradition offence in Western Australia.

The court dismissed the application for review, concluding that the applicant was eligible for surrender under the Extradition Act. The court ordered that Vincent Thomas O'Donoghue was eligible for surrender in relation to the extradition offences specified, and it confirmed the order made by the second respondent on 3 April 2009. The court also ordered that the applicant pay the respondent's costs, to be taxed if not agreed. This decision provides a clear pathway for the extradition process to continue, subject to any further legal challenges or procedures.

Orders

Orders of the court

1. The application for review is dismissed.

2. The applicant to pay the respondent's costs to be taxed, if not agreed.

3. The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:

* 8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative

* 8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland).

4. The order made by the second respondent pursuant to s 19(9) of the Extradition Act 1988 (Cth) on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act 1988 (Cth).

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BARKER J

It follows, in my view, and I find that the documents provided in support of the extradition request, that were relied upon by the magistrate and in this Court on this review application, also constitute a duly authenticated statement in writing setting out the conduct constituting the offences for the purposes of s 19(2)(a) and s 19(3)(c)(ii) of the Act.CONCLUSION AND ORDER For these reasons, I would dismiss the review application. As a result I determine that the applicant is eligible for surrender within the meaning of subs 19(2) of the Act in relation to extradition offences. In accordance with s 21(6)(g) of the Act I expressly include in this judgment in the review proceedings the following statement:The Court determines that Vincent Thomas O'Donoghue is eligible for surrender, within the meaning of subs 19(2) of the Extradition Act 1988 (Cth) in relation to the following extradition offences:•8 counts of fraudulent conversion contrary to s 20(1)(iv)(a) of the Larceny Act 1916 (Ireland); or in the alternative•8 counts of obtaining property by false pretences contrary to s 32(1) of the Larceny Act 1916 (Ireland). I will hear from counsel as to the appropriate terms and the form of orders to be made.

Ratio Decidendi

Legal Principle Established

Established by: BARKER J

As to the intent to defraud (or false pretences) offences, put in the alternative, the applicant makes the following submissions concerning s 409 of the Criminal Code (WA):•The section contains a mental element which involves a question whether an accused person has a belief in the existence of a state of things, by virtue of the words 'with intent to defraud'.•It is necessary to analyse the facts in order to identify the aspect which is alleged to reveal a fraud.•If there is a fraud, there must be an intent to defraud and that intent may be revealed by knowledge.•An intent to defraud is not to be equated with carelessness.•The question of intent to defraud is essentially subjective; it is a question of what the accused intended, not of what a hypothetical reasonable man would have intended.•Even if the actual conduct complained of was set out in the documents and was referable to the applicant, no conduct is set out from which it might properly be inferred that the requisite knowledge, belief or intent existed to defraud.CONSIDERATION In the context of this particular review application, while the applicant raises two issues – the first concerning the adequacy of the statements relied upon by Ireland to set out "the conduct constituting the offence" for the purposes of s 19(2)(a) of the Act, and the second concerning the "dual criminality" issue, that is, whether that conduct or equivalent conduct would have constituted an extradition offence in relation to Western Australia for the purposes of s 19(2)(c) of the Act – there is in practical terms only a single issue, and that is whether the documents put before the magistrate establish that the alleged conduct of the applicant, or equivalent conduct would have constituted an extradition offence in Western Australia. If it would have then, in the circumstances of this case, there will also have been a sufficient statement in the documents setting out the conduct constituting the offence. As noted above, s 19(3)(c)(ii) provides a definition of "supporting documents" that includes "a duly authenticated statement in writing setting out the conduct constituting the offence". Section 10(2) of the Act, an interpretive provision relating to offences, provides that:(2)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. In Truong v The Queen [2004] HCA 10; 223 CLR 122 at [29], Gleeson CJ, McHugh and Heydon JJ stated:The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other. In relation to what is required in an extradition hearing under s 19, Gleeson CJ noted in Vasiljkovic v Commonwealth [2006] HCA 40; 227 CLR 614 at [23] that such a hearing "does not involve a trial on the merits, and the enquiry is as to whether there is, in effect, a case to be answered".

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 46 of 2009

JUDGE:	BARKER J
DATE OF ORDER:	9 JUNE 2009
WHERE MADE:	PERTH

BETWEEN:	VINCENT THOMAS O'DONOGHUE Applicant
AND: