R v Hong Phuc Truong
[2002] VSCA 27
•26 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 158 of 2000
| THE QUEEN |
| v. |
| HONG PHUC TRUONG |
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JUDGES: | WINNEKE, P., ORMISTON and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 17-19 September 2001 | |
DATE OF JUDGMENT: | 26 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 27 | 1st Revision – 8 April 2002 |
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CRIME – Extradition – Application of s.42 (as qualified by s.10) of Extradition Act 1988 (Cth) – Extradition of applicant requested from United Kingdom on eight charges including kidnapping and murder – U.K. surrender warrant for only four offences including conspiracy to kidnap and conspiracy to murder (Bow Street magistrate not dealing with kidnapping and murder charges) – Applicant after extradition charged and convicted in Victoria on counts of kidnapping and murder – Facts supporting extradition offences and counts at trial virtually identical – Whether s.42 rendered convictions ineffective or illegal – Whether s.42 embodies “principle of speciality” – Meaning of expression “conduct constituting [any such] offence” in Extradition Act – History and comparison of relevant provisions.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | P.A. Coghlan, Q.C., Director of Public Prosecutions, | K. Robertson |
| For the Applicant | O.P. Holdenson, Q.C. Mr P. Morrissey Mr J. McDougall | Clarebrough Pica |
WINNEKE, P.:
I have had the considerable advantage of reading the reasons for judgment of Ormiston, J.A. I agree with his Honour, and for the reasons which he gives, that the Crown was entitled – consistently with s.42 (a)(i) of the Extradition Act 1988 (Cth) – to present the applicant for trial, and to try him, upon the offences of which he has been convicted; namely the offences of kidnap and murder. Accordingly, I agree that the application should be dismissed.
ORMISTON, J.A.:
This application for leave to appeal against convictions for counts of kidnapping[1] and murder in the Supreme Court is most unusual, in that no ground relied upon in argument sought to assert any error in the conduct of the trial, but raised for the first time were grounds, added over a year later and just before the hearing of the application[2], that the convictions were either unlawful or nullities or they amounted to a substantial miscarriage of justice because of a failure by the prosecution to comply with the requirements of the Extradition Act 1988 (Cth) (“the Act”) and in particular s.42 of that Act embodying[3] what has come to be called the principle or rule of speciality.[4] Whether or not at other times and in other jurisdictions the right to complain of a breach has been confined to the country which has surrendered the subject person, it was contended that the statutory provision makes mandatory the principle in this country so as to give rise to a right or a privilege in that person to object to a trial for any offence other than the ones
contemplated by s.42, with the consequence that the trial should be treated as a nullity or at least the verdicts should be set aside as of right whether or not the issue was raised before the trial judge.
[1]Contrary to s.63A of the Crimes Act 1958.
[2]It is understood that informal notice of the point was given some months earlier to the Crown.
[3]Over the years and in various jurisdictions the rule has taken a number of forms, as will be seen below (see esp. paras.[69]-[79]). It is by no means clear why the Australian provision took its present form (which incorporates an interpretative provision in s.10(2) of the Act) and whether it is intended to comprehend or to modify more generally expressed statements of the principle.
[4]The principle or rule is also frequently described in other jurisdictions as either the rule, principle or doctrine of specialty. According to Garner’s Dictionary of Modern Legal Usage “specialty” is American usage, to be contrasted with English usage: however, compare Jones on Extradition and Mutual Assistance (London, 2001) para.2-048ff. and Shearer’s Extradition in International Law (Manchester, 1971) p.146 fn.3.
In the present case the applicant was extradited by the United Kingdom on charges of conspiracy to kidnap and conspiracy to murder, notwithstanding that substantive charges of kidnapping and murder were also the subject of the Australian Government’s request to the Secretary of State for Home Affairs for the purpose of obtaining the applicant’s surrender for trial in this country. He was tried and convicted on the substantive charges, being sentenced to be imprisoned for life on the count of murder and for 15 years on the count of kidnapping, the judge fixing a period of 23 years 8 months before he will become eligible for parole.[5] It was not contended on behalf of the respondent that the applicant was tried in respect of the precise offences in respect of which he was surrendered; but it was argued on the Crown’s behalf that he was charged with and convicted in each case of “[an]other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence”.[6]
[5]The maximum sentences at the time were life and 20 years respectively. The maximum sentence for conspiracy to commit each of the offences was identical to that applicable to the substantive offence.
[6]Section 42(a)(i) of the Act. The opening words of the relevant second clause of sub-para.(i) are in fact “any other offence …”. It was not contended that the United Kingdom had consented to the applicant being tried on the present counts although “consent” constitutes a third exception to the rule of speciality as embodied in the section. The text of s.42(a) is set out below in para.[55].
It may be seen, therefore, that what has now arisen is a highly technical argument effectively as to jurisdiction which was not drawn to the learned trial judge’s attention nor, so it would appear, did it occur to any of the experienced counsel appearing at the trial. Although it may be argued in simple terms, as indeed it was, that the charges of conspiracy to kidnap and conspiracy to murder did not require proof of one element in each case which had to be proved at the trial, namely, the actual kidnapping and the actual murder, respectively, the argument poses certain difficulties in any case where a similar but different offence is later charged. Although the comparison which must be made is between the counts at any proposed trial and the charges in this jurisdiction which led to the request for surrender, the conduct supporting the latter charges, which were the subject of the request for surrender to the other jurisdiction, namely in this case the United Kingdom, that conduct must formally be set out and expressed in terms of acts and omissions sufficient to satisfy that other jurisdiction that it is proper to grant a surrender warrant. Although the elements of the charges in each country were here substantially similar, and so were not identical in all respects, such charges are often expressed in significantly different terms (especially in non-common law countries), and, moreover, the enquiry which is made in the surrendering jurisdiction is not whether the facts proved satisfy the requirements of the law in the requesting country, in this case in Victoria in particular, but is, by long hallowed practice and frequently statutory requirement, to be resolved by a consideration of what constitutes the equivalent of the stated offence in the country to which the request is made. As I would understand it, that is why ordinarily the other well-known principle of extradition law, that of double criminality, must be applied by the magistrate or other tribunal invested by the requested country with the duty of determining whether an extraditable offence has been established. Although it will not be necessary to examine the latter principle as such in detail for present purposes, the need to provide particulars sufficient to satisfy the requested country’s requirements suggests the difficulty which will here have to be resolved, whether the “conduct constituting any such offence” can properly be confined to the elements which make up the offence, at least in this jurisdiction, or whether some broader concept is being described. To add to the Court’s difficulties, this is the first time in this country, to our knowledge, that an issue of this kind has arisen under the present legislation, although by chance some months before the hearing of this application I was party to an order in R. v. Ken Ha Khanh Phong[7], in which the Commonwealth Director of Public Prosecutions conceded that a count brought in the trial of that applicant went beyond that permitted in consequence of an extradition order made in Hong Kong, so that the matter was not then the subject of any argument.
[7]Court of Appeal (Phillips, C.J., Brooking and Ormiston, JJ.A.), unreported 29 January 2001.
Summary of factual allegations
It is desirable here to summarise the facts alleged for the purposes both of the extradition proceedings and of the trial. Unfortunately it will be necessary to return to them in greater detail in due course in order to see how the case was put by the prosecution at both stages of the proceedings and what conclusions the examining magistrate reached and what conclusions one may fairly infer that the jury reached in coming to their verdicts, for the differences between them are said to be critical to the applicant’s contentions. To a degree and for ease of reading some of the allegations now described are matters which could only be the subject of inference, albeit that on each occasion the prosecution invited those inferences to be drawn from stated evidentiary materials.
The applicant was said, at each stage of the proceedings, to be “the most senior member of a network of Vietnamese criminals” involved in peddling drugs, who was resident in London but who had links with Hong Kong, Vietnam and Australia at least. One may observe, and so the learned judge concluded at the stage of sentencing the applicant, that the evidence went no higher than allowing an inference that the applicant had a significant role as an organiser and enforcer in a substantial drug cartel. At the beginning of the events relevant to this application, in February 1996, the applicant flew into Melbourne from Hong Kong under an alias to secure the assistance of a number of persons of Vietnamese origins to arrange bank transfers of large sums of money. It is said that he made clear that he wished to import a substantial shipment of heroin into Australia and needed people to assist, and for that purpose he enlisted the aid of his older sister Truong Thi Van (Mrs Van) who lived in Melbourne. Through her the applicant came to know of Ha Que Thi Mai (Mrs Ha) who was a wealthy importer and exporter of clothing and footwear. The applicant met Mrs Ha on 16 March 1996 at a Melbourne hotel at which he asked her to assist him to import heroin into Australia or, it may be, to transfer $400,000 in cash overseas for him. The prosecution case was that the applicant asked Mrs Ha to use consignments of clothing as a means of sending heroin, but she refused his request, whereupon he asked her to think over the matter again. Other attempts were made to persuade Mrs Ha, and on the second occasion he made clear that there would be unfortunate consequences resulting to her or her family if she did not take part. At this stage the applicant flew to Hong Kong but he continued from there to telephone Mrs Ha seeking to persuade her to assist him. If she did not, so she alleged, she would have to pay $400,000 protection money because of her knowledge of the applicant’s involvement in drug importation. Mrs Van also sought to put pressure on Mrs Ha and eventually the latter agreed to pay her some $20,000 to be transferred to the applicant, but this was said not to be enough.
While this persuasion continued, Mrs Van rented a house at Glendale Road, Springvale for reasons said to be connected with the kidnapping. At about the same time, in mid-April 1996 two brothers born in Vietnam but living in the United States, named Bui Tai Huu and Bui Quang Thuan, flew into Sydney allegedly for the purpose of participating in the kidnapping. Mrs Van is also said to have used the $20,000 to buy a green Toyota Vienta, likewise said to have been used for the kidnapping. Later that month one Le Thanh Long, a driver also alleged to be involved in the kidnapping, collected the two brothers Bui and brought them to Melbourne in that car.
The applicant and his colleagues continued to try to persuade Mrs Ha but without success. Then, on 29 April 1996, her son Le Anh Tuan, was assaulted both inside and outside his home in Regal Court, Glen Waverley and kidnapped by two large men of Asian appearance said to be the Bui brothers, and he was thrown into the boot of the green Toyota said to be driven by Le Thanh Long. A ransom note was found inside the house in Vietnamese which appeared to come from Mrs Ha’s son stating that he had “gone with the guys from brother Phuc’s company” and that his mother had “72 hours to pay the money”.
Each day thereafter it is said that the applicant continued to make threats to Mrs Ha but reassured her that he would be able to help her with her son if she paid the $400,000. Eventually by 3 or 4 May a ransom drop-off was arranged by her to take place at the bus depot at Spencer Street Railway Station. On 4 May 1996 four ransom collectors in fact came to Spencer Street Station and, although it was intended merely to follow them after the hand-over of the money, it became apparent that they realised that the police were observing them, so that it was necessary to arrest the four men immediately. During this time it is alleged that Mrs Ha’s son Le Anh was being held at the Glendale Road house, the Bui brothers being seen in the vicinity and one of them dropping his passport in the street between 2 and 4 May.[8]
[8]The passport was found and sent to an acquaintance whose telephone number was on a card inside the passport, a reward of $100 being promised. That money was paid, so that it might be said, in a perverse way, that there is even honour among “thieves”.
Eventually, on 7 June 1996, Le Anh’s body was discovered in an aqueduct in the Mile Creek drain not far from Glendale Road. A post-mortem examination revealed the cause of death to be a single gunshot wound to the head. The prosecution alleged that the Bui brothers, at the instigation of the applicant, were responsible for the death of Le Anh and that it is likely that that death occurred on or shortly after 3 May 1996, as within days the Bui brothers and Le Thanh Long flew out of Australia. At all relevant times the applicant, after his meeting Mrs Ha, remained in Hong Kong before eventually returning to London.
Summary of Proceedings
(i) Extradition request to United Kingdom
Regrettably, therefore, it will be necessary to spend a considerable time examining the bases upon which the Bow Street magistrate determined to give his certificate pursuant to s.9(9) of the Extradition Act 1989 (U.K.) and upon which the prosecution sought at the trial in this State to secure convictions for the substantive offences. Some other facts must first be briefly described. The applicant, although born in Vietnam in 1959, was a resident in the United Kingdom at the time of his arrest. Although he visited Australia, so it was alleged, for a short time not long before the kidnapping and murder were committed, he was in Hong Kong at the relevant time.
After the death of Le Anh Tuan and the discovery of his body on 7 June an elaborate investigation took place which led to the bringing and filing of eight charges against the applicant and a number of other alleged participants in the offences, which included charges of murder and kidnapping, of conspiracy to murder and conspiracy to kidnap, as well as blackmail and making a demand with a threat to kill of Mrs Ha, and additionally two charges relating to the importation of heroin into Australia contrary to the Customs Act 1901 (Cth). After an extradition brief was forwarded to the Commonwealth Attorney-General seeking the extradition of the applicant, a request by Australia for his surrender for all eight offences was made pursuant to s.40 of the Act under authority of the Commonwealth Attorney-General to the Secretary for State for Home Affairs of the United Kingdom in late September 1997.[9]
[9]Unfortunately no copy of the request itself was available to this Court, but there seems little doubt that the subject offences were expressed in terms of State or Commonwealth (the drug offences) law.
That request was received pursuant to s.7 of the U.K. Act which led to the Secretary of State on 2 October 1997 issuing an authority to proceed pursuant to sub-s.(4) of that section directed to the Chief Metropolitan Stipendiary Magistrate sitting at Bow Street, which described the subject matter of the inquiry as being “conduct in the jurisdiction of the Government of Australia which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of murder, false imprisonment, conspiracy to commit murder, conspiracy to commit blackmail, kidnap, conspiracy to kidnap, threats to kill, conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin”. On the same day the Secretary of State also granted a certificate pursuant to s.6(7) of the U.K. Act (commonly known as a certificate of speciality) whereby he stated that “an arrangement as mentioned in s.6(4) of the Act” had been made with the Government of Australia substantially in the following terms:
“In submitting this request for the extradition of Hong Phuc Trung … the Government of Australia states that the accused, unless he has first had an opportunity to leave Australia, will not be dealt with in Australia for and in respect of any offence committed before his return under the Extradition Act 1989, other than:
(a)the offences in respect of which his return under the Act is ordered;
(b)an offence, other than an offence in relation to which an order for his return could not lawfully be made[10], which is disclosed by the facts in respect of which his return was ordered; or
(c)any other offence being an extradition crime in respect of which the Secretary of State of the United Kingdom may consent to his being dealt with.” (Emphasis added.)
It will be noted that, although the Government of Australia is stated to have agreed that the applicant should not be dealt with in the stated way, that agreement was not expressed in terms of s.42 of the Australian Act, but in terms of sub-s.(4) of s.6 of the U.K. Act, the words italicised in (b) being somewhat differently expressed from the equivalent provision in paragraph (a) of s.42(1) of the Australian Act.
[10]There were no such offences relevant to the present case.
Evidence as to what precisely occurred during the committal proceedings at Bow Street Magistrates’ Court has not been easy to gather and attempts made to get further information from the relevant officers at the Home Office were largely unsuccessful, primarily because of the time which had gone by and an inability now to remember some of the details with which the Court is concerned. Mr Nicholas Evans, a Metropolitan Magistrate at the time, conducted the proceedings but when they commenced is not entirely clear. An opening note of the case on behalf of the Australian Government was signed by counsel and dated 28 May 1998, from which it might be inferred that the hearing itself commenced a few days later. It was estimated that the prosecution case would take only about two days, but one gathers that the matter started and stopped over several weeks and the magistrate did not deliver his reasons and make his finding until 30 September that year. It appears that there were ten bundles of evidence running to many thousands of pages, at all of which the magistrate said it was not necessary to look. Among the affidavits in support was what is called an Affidavit of Laws sworn by a member of the Office of Public Prosecutions in this State setting out the various offences and the prescribed maximum penalties, provided among other materials to ensure, as I would understand it, that the principle of double criminality was observed and that the prisoner was not committed for offences outside the scope of the extradition laws.
In addition there was a far more detailed affidavit by Detective Senior Constable Tragardh extending for some 70 pages which included the factual basis for the Australian Government’s case set out with admirable clarity, together with detailed cross-references to the statements and other exhibits upon which it was based. It also set out a list of the pending charges in Australia against the applicant and also against Ly Quoc Chuong, his brother-in-law, who was also a resident of the United Kingdom and against whom one gathers separate extradition proceedings were brought. The magistrate was also provided with schedules of witnesses, skeleton arguments on both sides and a list of five draft charges, to which I shall return. In the course of his reasons the magistrate noted that his duty under s.9 of the U.K. Act was to determine whether the offences in question were extradition crimes and whether he was satisfied “that the evidence would be sufficient to make a case requiring an answer … if the proceedings were the summary trial of an information …”.[11]
[11]See sub-s.(8).
Unfortunately it is necessary to examine, so far as is practical, the course of those proceedings for at least one principal reason. Undoubtedly the list of charges referred to in Detective Senior Constable Tragardh’s affidavit, as well as the authority to proceed to which I have referred, listed substantive charges of both murder and kidnapping. At the end of the day, as will be seen, the dual criminality certificate dated 1 October 1998 had attached to it, for some unexplained reason, a schedule of only four charges, including conspiracy to murder, conspiracy to kidnap, conspiracy to blackmail and conspiracy “to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug namely heroin”, but described no other offences. The list of charges in the schedule had almost certainly been prepared by counsel for the Commonwealth, as it was originally headed “draft charges”, but somebody, presumably the magistrate, had crossed out the word “draft” and there was a fifth charge on the sheet, being a charge of making an unwarranted demand with a view to gain, which was deleted as having been “discharged”, to which the magistrate specifically referred in his reasons.
It is necessary therefore, to go in the first place to counsel’s “opening note” to ascertain, as best one can, how the case was originally put to the magistrate. Counsel introduced his note in the following unexplained way. He said that the applicant was “wanted by the Government of Australia for murder, kidnapping, conspiracy to commit murder, conspiracy to kidnap, blackmail, extortion with threat to kill, conspiracy to import a prohibited drug namely heroin, and knowing involvement in the importation of heroin.” It noted his arrest in August 1997. The charges there listed included all original eight charges expressed in terms of Victorian or Australian law. Nevertheless, after referring to the arrest and the authority to proceed, he stated then that “the draft charges upon which his extradition is sought are set out below”. There then followed only the five charges which were the subject of the “draft charges”, to which I have referred, and expressed in terms of offences against English law, including the charges of conspiracy to murder and conspiracy to kidnap. Whether counsel had determined to abandon the substantive charges is by no means clear, for in then setting out an “overview of the facts”, he stated inter alia: “The murder charges[12] relate to the kidnapping and murder of Le Anh Tuan, aged 21, who was kidnapped from his home on April 29, 1996 …”. He described the fact that Le Anh was assaulted and forced into the boot of the Toyota car and then set out the substance of the note which had been left for his mother, as set out above. He then stated that the body had been found by a school boy in June 1996 and that he had been killed by a single gunshot to the head. His brief summary continued by referring to the following facts:
“Mrs Ha … stated that her son introduced her to a Mrs Van who asked her if she wanted to get involved in drug dealing … Mrs Van was Phuc’s mother. Phuc asked her to import drugs. She states she refused to do business with him and he demanded $400,000 Australian because she knew of his drug business … He continued to demand money and threatened her family if she didn’t pay … Mrs Van met her at a hotel and gave her a note concerning the money Phuc was demanding. Mrs Van and her husband began visiting her son Le’s house about two weeks before the kidnapping and asking a lot of questions. Mrs Van told her after the kidnapping that Le Anh was still alive and well and that he would be home in three or four days … Mrs Ha spoke with Phuc after Le Anh was kidnapped. The conversation was as follows: ‘Why did you take Anh, how is my son?’ He said: ‘Look I have told you already I can do whatever I want. When you have the money prepared ring me’.”
The summary then continued by describing the heroin charges, which need not be examined further, except that they contained a reference to another threat by the applicant to a person in Sydney, in which it was alleged that the applicant said: “The woman down there has resisted our proposals and instructions so she had to collect all the bad results of consequences” (sic).
[12]Emphasis added.
Before turning to the factual basis upon which extradition was sought, as revealed in Detective Senior Constable Tragardh’s affidavit, I shall first deal with the reasons which the magistrate gave for ultimately committing the applicant to custody. The magistrate noted that he had adjourned the proceedings to allow the defence to call alibi evidence but, although identification of the applicant was a critical matter, no such evidence was called. The magistrate then said:
“It is conceded by the defence that there is prima facie evidence that Le Anh Tuan was kidnapped and murdered, that Ha Mai was blackmailed and that heroin was imported. The only factual issue that I have to decide is whether the man in the dock is adequately identified as being the person called ‘Phuc’ in the evidence. If he is so identified then he will have … a case to answer, as there is the clearest evidence that ‘Phuc’ was a conspirator in each of the conspiracies.”
One might comment that there seemed not the slightest doubt that there was evidence of kidnapping and murder and that likewise the magistrate thought that there was “the clearest evidence” of the applicant’s participation in the conspiracies, but, whatever be the persuasiveness of the material, the issue at that stage was being put only in terms of the relevant conspiracies, although logically they might have led to an inference of complicity in the substantive offences. There is a possible clue to a perceived difficulty when the magistrate turned, after dealing with an issue of formal authentication of evidence which he resolved firmly in favour of the Commonwealth, to “territorial jurisdiction” about which he said:
“This submission was advanced on the incorrect basis that the government was seeking to establish extraterritorial offences within the meaning of s.2(1)(b) of the 1989 Act. That is not the position. If it had been, the authority to proceed would not have needed to have so stated. What is required is for the government to satisfy me that the alleged offences are extradition crimes within the meaning of s.2(1)(a). Mr Wood [counsel at that time for the applicant] invited me to consider the terms of the Australian criminal law and in particular s.321 of the Crimes Act 1958 (Victoria) … It is not for me to try to interpret the effect of foreign law. Should that ever be necessary it would require me to receive evidence from an expert on that law. All the overt acts in each of the conspiracies were committed in Australia. There is evidence that ‘Phuc’ was at various times during the period of the conspiracies both in Australia and also outside Australia …”.
He then referred to evidence of Mrs Ha to the effect that, when the first threat was made, the applicant told her that he was staying at Mrs Van’s house in Melbourne, and that thereafter the applicant had called her from Hong Kong demanding the ransom of $400,000. The magistrate continued:
“The evidence shows that whichever jurisdiction ‘Phuc’ was in he continued to play an active part in each of these conspiracies.”
He concluded that he was satisfied that each of the conspiracies was an extradition crime. Finally, he came to the question of identification, which he dealt with by saying that, having considered the photographs and other evidence, and noting that no alibi evidence that he was in London at the time was in fact called, he had concluded:
“I am satisfied on the totality of all the evidence put before me that Mr Truong [the applicant] does have a case to answer on each of the conspiracy allegations.”
The Metropolitan Magistrate therefore stated that he proposed committing the applicant under section paragraph 9(8) of the U.K. Extradition Act “to await the decision of the Secretary of State as to his return to Australia”. This last observation was a reference by the magistrate to the fact that, having committed a person the subject of an extradition application to custody under s.9(8), the final stage of return under warrant to Australia devolved under the U.K. Act upon the Secretary of State pursuant to s.12(1), which stated:
“Where a person is committed under s.9 above and is not discharged by order of the High Court …, the Secretary of State may by warrant order him to be returned unless his return is prohibited … by this Act, or the Secretary of State decides under this section to make no order in his case.”
(ii) Factual basis for extradition case
Because it is contended that the relevant basis for determining the conduct constituting the offences in this case should be construed as comprehending “the acts or omissions, or both, by virtue of which [those offences, in respect of which his return to Australia was ordered were] alleged to have been committed”, or alternatively the “facts” “disclosed” for that purpose, conformably with the certificate of speciality given pursuant to the U.K. Act, one must examine those “acts or omissions” or “facts”, which were alleged in the proceeding before the Metropolitan Magistrate. I shall do my best to summarise that material but, regrettably, it will be necessary to compare it, insofar as there were any differences, with the evidence which was relied upon in order to make out at the trial the substantive counts upon which the applicant was convicted.
The 65-page description of the factual basis[13] for the allegations began with an “overview” setting out substantially the matters already referred to above.[14] A more detailed statement of the basis for those conclusions appeared thereafter, essentially in a chronological form. It began by describing the deceased’s arrival with his mother Mrs Ha in Melbourne from Russia in July 1993. It was he who first met Mrs Van and her husband Ta Van Doanh. Mrs Van then met Mrs Ha who told her of her interest in a clothing business. Then in January 1996 the applicant, when in Hong Kong, approached an associate to obtain a mobile telephone. I shall not list the number of phones acquired in this way, either by the applicant or by those who were said to have been involved on his behalf in his drug dealing, and in the kidnapping and murder. It is sufficient to say that part of the prosecution case was that the applicant thereby acquired phones which were not directly traceable to him or his colleagues. Many hundreds of phone calls were traced in this way, but it was not subsequently possible to identify the persons who used the phones, although the time at which the calls were made and the length of the conversations were recorded and given in evidence. So there was evidence on 14 January 1996 that the phone acquired by the applicant was used to make a call to the phone owned by Mrs Van. Two days later her phone was used to call the applicant’s telephone in London, registered in the name of H.P. Chuong, said to be one of the applicant’s aliases. Later that day Mrs Van left Australia for Hong Kong. The applicant was in fact in Hong Kong when she arrived, together with one of the Bui brothers and one of the applicant’s brothers-in-law, Ly Quoc Chuong. On 27 January Bui Tai Huu flew from Hong Kong to Melbourne and then to Sydney where there is evidence that he registered at a hotel in the name of Nguyen Michael, a name used fraudulently to obtain a U.S. passport.
[13]See para.[15] above.
[14]In the summary in paras.[5]-[10].
By 8 February 1996 the applicant had likewise visited Australia from Hong Kong using a false United Kingdom passport in the name of Cheung Duc Minh. Largely from telephone calls it was sought to be shown that he stayed with his sister Mrs Van. Evidence was also given of his travelling to Sydney so as to arrange for some complex money transfers to Hong Kong and the United States amounting to some $364,000. Apart from bank records, statements from three persons involved in the transactions, Hoang Trong Tai, Nguyen Van Manh and Pham Thi Men, showed that the bank accounts in Hong Kong, though not in the applicant’s name, were used by him and that the account in America was in the name of Bui Huu Thanh, an older brother of the Bui brothers. There was further evidence at this time relating to the transfer of money overseas by the applicant, including $10,000 to his mother in Vietnam.
On 16 March 1996 the applicant travelled to Melbourne, the journey being tracked by calls made from various places on the way on a mobile phone acquired by the applicant. That night, according to a statement by Mrs Ha, the applicant met her at the Regent Hotel where he was staying. Mrs Van had told her by phone from Vietnam that the purpose was to discuss a partnership in importing clothing, but the applicant made it clear that his interest was in the importation of heroin into Australia. He put a proposition that Mrs Ha could assist him by concealing it inside shipments of the clothing. She refused the offer but was told to think about it further. Phone conversations to like effect resulted in continued refusal by her, which was followed by a threat from the applicant as to bad “consequences for her family”. On 19 March the applicant left Australia for Hong Kong, as traced on airport records. Mrs Ha told of further threats by telephone and a demand for the payment of $400,000. She was told to speak of the money as a debt owed to the applicant relating to clothing and shoes and it seems that this was the code that they thereafter used.
For some time Mrs Van had been in Vietnam but she returned to Australia on 23 March, according to Mrs Ha, for she immediately spoke to Mrs Ha about the applicant’s demand. On 28 March the applicant sent a fax to the victim Le Anh’s address setting out four Hong Kong bank accounts into each of which his mother was to deposit $100,000. They were the same as the bank accounts used by the applicant in making his earlier money transfers and the fax was sent from “Happy Excel International”, a copy of the fax forming part of the evidence. The same day the alleged driver for the kidnapping, Le Thanh Long, returned to Melbourne from Saigon. On 3 April a package of heroin in a Buddha statue valued at $3m. was sent to an address in the Australian Capital Territory and was marked as having been sent by Happy Excel International Ltd. It was seized in a controlled delivery and two persons were arrested and charged, one of whom was convicted.
More phones were acquired by various acquaintances of the applicant for use by him and his colleagues. In particular, Pham Thi Minh Hanh, stated that on 7 April 1996 she acquired one in Hong Kong for the applicant which at no time was used by her but for which the applicant agreed to pay the bill. It was used to make a considerable number of calls from that date to 4 May 1996. For example, two days later the applicant is believed to have rung Mrs Van, according to telephone records. The following day, according to Mrs Ha, she received a letter left for her by Mrs Van. It complained that she had waited for Mrs Ha at the latter’s home, because Mrs Ha had asked her to come to Mrs Ha’s place in order to pick up money to give to the “other man”, but Mrs Ha had failed to be present. She was asked: “What was the reason you [? not] answer to me immediately. I have wasted too much time”. Mrs Van required an immediate answer and in fact later that day Le Anh paid $20,000 in cash to Mrs Van for which he was given a receipt. According to Mrs Ha this was to appease the applicant. Mrs Van later told her that it was not adequate. Later that day a call was recorded from the mobile phone number used by the applicant to Mrs Ha’s telephone number.
There followed detailed evidence of the arrival of the Bui brothers in Australia. Bui Tai arrived from Hong Kong using an alias on 11 April 1996. About that time the applicant phoned Mrs Ha and referred to “a member of his company” who had come to collect the money from her. Mrs Ha said that she became increasingly concerned at this time, so that she decided to begin recording her conversations with the applicant. Two days later she received a call from Mrs Van about the money and thereafter there were a series of calls from one to the other, as well as a call from another person believed to be Bui Tai, all of which were recorded. The caller suggested Mrs Ha was delaying and she said she was having difficulty raising the money. The applicant told her that she had until the end of the week to pay, “otherwise the company will deal with the matter”.
By this time it is believed, from call charge records, that Bui Tai was now living with Mrs Van in Clayton South. In particular, calls are recorded to California, Mrs Ha, the applicant and one of his associates in Hong Kong, and to the driver Le Thanh Long, or, more precisely, to the numbers used by them. On 13 April a daughter of Mrs Van, Ta Ngoc Mai, in company with two males of Asian appearance, purchased a mobile phone from Hutchison Telecom in Dandenong. It is this phone which is believed to be the one used thereafter by an unrecognised male to threaten Mrs Ha into paying the money. The following day there was another threatening phone call, which was followed by a call from Mrs Van to the applicant. Also at this time there was evidence about the renting of the house in Glendale Road, Springvale by Mrs Van from an estate agency in that suburb. The property manager alleged that she wanted to rent the house for her recently married daughter, but that daughter, Ta Ngoc Mai, was in fact divorced at the time. The former husband stated that Mrs Van told him that she intended to rent a house for his divorced wife and her two brothers, but sought his help by putting his name on the contract as he was in full employment. A bond and a month’s rent were paid. Shortly afterwards a resident nearby saw three males of Asian appearance moving three mattresses into the premises. A series of phone calls recorded over the 16th to 19th April showed the applicant making frequent calls, especially to the Bui brothers both in Melbourne and Los Angeles and then to Mrs Van. Then on 19 April Mrs Van’s son, Ta Quang Huy, is shown to have purchased a 1994 Toyota Vienta (or Camry as it was most frequently called) for $23,723 which was registered in his name. This car was noticed in the driveway of the house in Glendale Road by two residents of that street.
On 20 April 1996 the second Bui brother, Bui Quang Thuan, left Los Angeles International Airport with a friend after buying two cartons of Marlboro cigarettes with which they were given two promotional baseball caps, according to the salesman. The cap was of a kind which could only be obtained from duty free outlets at that airport and on the Canadian and Mexican borders between June 1995 and June 1996. Bui Quang first travelled to Hong Kong. Then on 23 April he arrived in Sydney, according to an incoming passenger card. Two days later Le Thanh Long drove Bui Tai to Sydney in the Toyota car but its registration number was noted when it was intercepted for a routine check on the Hume Highway. Again the next morning Le Thanh Long was pulled up for exceeding the speed limit at Marulan. Eventually they arrived at the Marco Polo Motor Inn at Summerhill where both Bui Tai and Le Thanh Long booked in, according to hotel records. There was evidence of observations of both the Bui brothers and the car in Sydney. However, on 27 April the car was seen driving out of the hotel and by 28 April Le Thanh Long was again phoning Bui Tai in Melbourne.
In the days leading up to the kidnapping Mrs Ha said that Mrs Van had asked Le Anh and his girlfriend to travel to Hong Kong for business, but Mrs Ha had told her son not to go there as she thought it was a trap. From time to time Mrs Van and sometimes her husband visited Mrs Ha, asking many questions about her son’s house. Mrs Ha said that on one occasion a house key left in a rice container went missing and it was never found.
Then on 29 April 1996 Le Anh and his fiancée went to premises recently purchased for their occupation, but an electrician they were expecting did not arrive. Le Anh said he would return home to Regal Court, Glen Waverley to find the electrician’s phone number. This was the last time Le Anh was seen alive by his fiancée. Then there are recorded a series of telephone calls from Bui Tai to Le Thanh Long broadly in the relevant area. One neighbour stated that he saw three Asian males running out of Regal Court, one of whom was about five metres in front of the others. At the same time a green car reversed into Regal Court. Two of the males caught the third and they all went behind the car, the boot was raised and then closed, leaving only two persons other than the driver. The neighbour wrote down the car’s registration number which was identical to that of the Toyota bought by Mrs Van’s son. Similar observations were made by another neighbour. She said the two Asians were quite tall and wore dark clothes. She saw the smaller man pushed into the boot. When the police arrived they found a jacket belonging to Le Anh near the car and also a black Marlboro baseball cap outside on the footpath. Inside the house they found the note in Vietnamese written by Le Anh on the kitchen table. It was translated:
“You call mother to tell her that I have gone with the guys from brother Phuc’s company, the younger brother to Mrs Doanh[15]. Those guys said to give mother seventy-two hours to pay the money.”
[15]Another name used by Mrs Van.
The prosecution case then stated a number of conclusions which might fairly be inferred from what had preceded. In substance it asserted that the Bui brothers had been dropped off in Regal Court by Le Thanh Long and had then entered Le Anh’s house with the key taken by Mrs Van. Le Anh was attacked in his house which was ransacked by the Bui brothers. Le Thanh Long was then told to return to Regal Court while Le Anh was forced to write the ransom note. A fight took place on the way out with the cap being knocked from the head of one of the Bui brothers but Le Anh was eventually caught and forced into the boot of the Toyota. He was then driven to the house at Glendale Road, Springvale.
As a result Mrs Ha came into contact with the police at the Glen Waverley CIB for the first time and shortly afterwards she received a demand for a ransom. She spoke to the applicant by phone from the CIB. The applicant was recorded as stating: “You have three days to transfer the money to Hong Kong, if no money, everything happen to Anh.” Mrs Ha was then told to telephone the applicant on her own phone and to record the conversations. When she asked the applicant about her son’s welfare the applicant is said to have answered: “Look I have told you already I can do whatever I want. When you have the money prepared ring me.”
Further evidence of these events was given by way of interviews with Mrs Van and her son Ta Quang Huy, but one may doubt whether their evidence was relevantly admissible, certainly as the prosecution appeared to rely primarily on inconsistencies in their stories. Inferences were also sought to be drawn from phone conversations made from public telephone boxes near to the Glendale Road house, which were said to have been made to the Bui brothers’ girlfriends in Sydney.
Thereafter a judge of the Federal Court issued a warrant authorising telecommunication interceptions on a mobile phone given to Mrs Ha. On 1 May the applicant called Mrs Ha, who asked about her son, to which the applicant replied that she was to pay the money first and then he would help her. There was no direct discussion of her son. He alleged she owed him money and asked: “Are you going to pay me or not? You tell me. Do not discuss any other matter. Everything has its place.” He asserted that she was playing games with the payment of the $400,000. He said that the day after tomorrow “I am not going to wait … Then you better hurry up. That is all.” When she spoke about her son the applicant simply said: “Why did you allow it to reach that stage?”. There was further evidence of a phone call relating to the cleaning by a professional cleaner of the house in Glendale Road. On 2 May there were further calls from the applicant to Mrs Ha. He told her that he had given her enough time already and threatened that if he had not received the money that evening in full, “then from now on you no longer have to phone me any more”, as there would be no use for the phone. Later Mrs Ha rang to say that she could not get the money until the next day. The applicant told her that this was her final chance and it had to be paid by 12 noon the following day. He required it to be delivered to Sydney for him. He said that she had brought all this on herself. Mrs Ha’s attempts to speak about her son were met with the answer that she was not to mention the matter and that she had to sort out the matter of the money first. He said that, if he collected the money in full, “all matters shall be happy”.
There followed a large number of other conversations from which it might be inferred that arrangements were being made to collect the ransom money from Mrs Ha. Detective Senior Constable Tragardh’s affidavit then stated the belief that, as the payment deadline, which had been extended to 12 noon on 3 May, had expired and the ransom not paid, Le Anh was then “shot in the head, execution style” and dumped in Mile Creek Drain, Noble Park. The alleged kidnappers then arranged to leave Melbourne.
Essentially these conclusions as to the timing and causing of the shooting rested on circumstantial evidence. The applicant’s threats and the precision of his demand, followed by the departure shortly afterwards of the Bui brothers and their driver and the later finding of the body, pointed strongly to these conclusions as to Le Anh’s death, according to the prosecution case.[16] In particular, Bui Tai’s mobile is recorded as making calls from Melbourne Airport at 2.35 and then at Sydney Airport at 6.15 p.m. on 3 May 1996 suggesting that he had left Melbourne. Then evidence from the Lansdowne Motor Inn on the outskirts of Sydney showed that the Bui brothers booked in at about 11 p.m. that night. At about this time Bui Quang’s passport was found in Glendale Road, as mentioned above[17], by a resident of Springvale and returned to him.
[16]Le Anh’s body was not found until 7 June. Professor Cordner said that examination of the partly decomposed body could lead to no more precise conclusion than that he had been shot at some time between two and six weeks earlier.
[17]See para.[9].
Nevertheless the applicant still demanded the money from Mrs Ha that same afternoon. By this stage Mrs Ha says that she had the necessary money and asked for instructions. She was told by the applicant to bring the money personally and it would be collected by a “black pawn”, not aware of any other details. The applicant said he would not speak to her any more on the subject. In this respect he was true to his word, for it was his last phone conversation with Mrs Ha.
Less than half an hour later Mrs Ha rang the same phone number but it was answered by Ly Quoc Chuong, who said that the applicant did not have the time to speak to her. She was told that, if she wanted to pay, others would have to contact her. He refused to discuss her son, maintaining that he and his colleagues were not to be treated like children. Mrs Ha agreed to pay the ransom, so she was told that someone would contact her. She rang later to enquire about her son’s condition, but spoke again to Ly Quoc, who accused her of not playing fair and saying that those who would collect the money had no idea of what was happening. Somebody was watching her every move. She must wait for a call, but if she played fair, she would not have to worry about anything.
The next day Ly Quoc arranged for one Ta Van Hung and two others to go to Melbourne, where they were met by Pham Tinh Xuan, according to statements made by each of them. Mrs Ha then received a series of phone calls from a person believed to be Ly Quoc. She was told to take the $400,000 to the bus stop at Spencer Street Railway Station, and to hand it over to an unnamed male person. Then, shortly afterwards, Ly Quoc rang again accusing her still of “playing games”, saying that she was being watched and that she had wasted time on the phone, so that she was not to ring him again. He knew her every move and that people had been listening and keeping watch that morning. In fact, surveillance police were already in position and from this complaint or warning the magistrate was asked to infer that the four “money collectors” had seen the police and therefore knew Mrs Ha had already involved them.
Consequently the police thought it best not to await any hand-over of the ransom moneys and decided to arrest the four “collectors”. Two were immediately arrested and the other two shortly afterwards in Spencer Street. From records of phone calls it may be inferred that news of the arrest was passed quickly to the applicant, who in turn rang the Bui brothers. A final call from Ly Quoc to Mrs Ha told her that, if she intended to pay the debt, she should use a public phone.
The Australian Government’s case also included evidence as to what the four collectors had said on interview, although that could not be admissible at trial against the applicant. The same may also be said of the evidence that in custody one of the collectors attempted to swallow a piece of paper which had Ly Quoc’s phone number on it and of further interviews with Mrs Van and her son.[18]
[18]It is not necessary to discuss to what extent such evidence was admissible at the extradition hearing.
From airport records it appears that the driver Le Thanh Long left for Vietnam on 4 May 1996. On the same day the Royal Hong Kong Police carried out search raids at various addresses in Hong Kong, including that of Happy Excel International Ltd. At one address they found the original of the fax setting out the four bank accounts, a passbook in an alias name of the applicant, telephone bills for the “borrowed phone” and a book with the phone number of the Lansdowne Motor Inn. The affidavit asserts that no more phone calls were recorded from this phone number and both the applicant and Ly Quoc are believed to have left for the United Kingdom at about this time.
The following day the Toyota was found at Seaford, having been cleaned with an industrial strength cleaner. Ten days later Bui Tai flew to Vietnam. The same day Mrs Van contacted the estate agent for 24 Glendale Road and, upon paying an additional month’s rent, it was agreed that the lease be determined. On 23 May Bui Thanh also flew to Vietnam, according to airport records.
Of course during this period Mrs Ha was unaware of what had happened to her son after his kidnapping. She therefore went to see Mrs Van, who told her that he was alive and well, and that she might let him go home in three or four days time, but that Mrs Ha could not “buy him back”, whatever that might have meant. Later attempts to contact Mrs Van were rebuffed by her.
For some reason apparently not connected with the subject offences, the Bui brothers returned to Australia for a period of time on 2 June 1996, again staying at the Lansdowne Motor Inn. Their purpose was probably connected with the alleged importation of a large consignment of heroin, which, though relevant to the extradition proceedings, has relevance in only one respect to the counts the subject of this application.
For the rest there was considerable forensic evidence, though primarily connecting the Bui brothers and others to the kidnapping and murder, as it was alleged. That included evidence of searches of the car, of the house at Glendale Road and of various interviews. At the rented house a Melway’s directory with Regal Court circled was found on the back verandah. One further fact may be said to be presently relevant. A witness, arrested in August 1996 because of his connection with the heroin importation, made a statement that the applicant had threatened him if he did not co-operate, by referring to a “woman down [in Melbourne who] has resisted our instructions so she had to collect all the bad results [in] consequence.”
It may be seen, therefore, that the case against the applicant, especially that necessary to prove his connection with the kidnapping and murder and with the arrangements leading up to them, was essentially a circumstantial one.
(iii) Later formal steps in extradition
Having committed the applicant to custody to await the Secretary of State’s decision as to his return to Australia under paragraph 9(8) of the U.K. Act, the Metropolitan Magistrate then on 1 October 1998 issued, pursuant to s.9(9) of that Act, a certificate of the offences against the law of the United Kingdom “which would be constituted by his conduct”. The certificate, commonly known as a “dual criminality certificate”, stated that, having committed the applicant to custody to await the Secretary of State’s decision, his Worship certified under the section “that the conduct alleged within the jurisdiction of the Government of Australia would amount to the following offences against the law of the United Kingdom”. To that certificate he attached a schedule which set out four charges, in the form of the draft charges previously referred to (but deleting the charge numbered 3)[19], the first two of which were the only ones relevant to the present application and read as follows[20]:
[19]See para.[16].
[20]The third charge alleged a conspiracy to blackmail Mrs Ha between 16 March and 7 June 1996 and the fourth a conspiracy “to be knowingly concerned in the fraudulent evasion of the prohibition on the importation” of heroin, as described in paragraph [12]. It will be noted that that charge did not describe any offence in terms of the offences under s.233B of the Australian Customs Act but used terms based on U.K. drug legislation.
“1.That you between 16th March 1996 and 7th June 1996 conspired with Bui Tai Huu, Bui Quang Thuan, Le Thanh Long and others to murder Le Anh Tuan.
2.That you on or about 29th April 1996 conspired with Bui Tai Huu, Bui Quang Thuan, Le Thanh Long and others to kidnap Le Anh Tuan.”
There was no further description of those offences in the certificate except that they were stated to have been committed “all within the jurisdiction of the government of Australia”.
Some weeks later[21], on 16 November 1998 a warrant for the applicant’s return to Australia was signed pursuant to s.12[22] of the U.K. Act by Ms Kate Hoey, one of the Parliamentary Under Secretaries-of-State for the Home Office, in the form prescribed pursuant to s.28 of that Act.[23] The warrant, directed to the Governor of Brixton Prison and members of the Metropolitan Police Force, began by reciting the request from the Commonwealth of Australia for the return of the applicant “who is accused of offences of conspiracy to commit murder, conspiracy to kidnap, conspiracy to commit blackmail and conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin”. It then recited that a Metropolitan Stipendiary Magistrate, being “satisfied that the evidence given before him would be sufficient to warrant the [applicant’s] trial for these offences if they had been committed in the inner London area”, had committed the applicant to await his return to Australia. Finally, having recited that there had been no High Court order discharging the applicant, it stated: “Now, therefore, it is hereby ordered that the [applicant] be returned to Australia in respect of the offences for which he was committed by the Metropolitan Stipendiary Magistrate.” Except in the indirect way referred to in the warrant, there was no description of either the offences or the evidence in the warrant itself, and it is, as may be seen, necessary therefore to go to the other documents and materials to which I have earlier referred to ascertain the subject of the surrender.
[21]At the time of committal under s.9, a person must, under s.11(1) of the U.K. Act, be informed of the right to make an application for habeas corpus and sub-s.(2) requires that the person shall not be returned until fifteen days has expired or any habeas corpus application has been dealt with.
[22]See its terms in para.[18] above.
[23]Although that section provides that regulations may be made by way of statutory instrument prescribing the form of the document, no new document was in fact prescribed under the 1989 Act, with the consequence that the forms prescribed under the previous legislation in the Fugitive Offenders (Forms) Regulations 1967 continue to have effect by virtue of s.17(2)(b) of the Interpretation Act 1978 (U.K.).
(iv) The case made at the trial
In due course the applicant was brought to trial together with one co-accused, Mrs Van, who had been arrested in this State. Although there were a number of preliminary issues which had to be dealt with by the trial judge, it is unnecessary to examine those having regard to the single issue raised on this appeal.
What is important is the nature of the case made against the applicant and the extent to which it differed, if at all, from that made in the extradition proceedings. It is significant to note, however, how little the case differed from that which I have already summarised as forming the basis for the extradition proceedings, notwithstanding that the charges were technically different and that Mrs Van was now a co-defendant in respect of each of the substantive counts. The evidence outlined in the prosecutor’s opening to the jury can hardly be said to differ at all, except in inessential matters, and the evidence in fact given at the trial was not significantly different, although it did cover matters raised by cross-examination on behalf of each of the accused. Even then, most of the detail was not challenged and there were only about four witnesses whose evidence was the subject of any extensive cross-examination.
I have attempted to compare in detail the matters raised by way of opening by the prosecutor with the evidence earlier summarised. In the result there seems to be only one fact which was not made before the magistrate at Bow Street, which was of any real significance. Among the materials found by the Royal Hong Kong Police in examining the premises of Happy Excel International Ltd. was the phone number of the Lansdowne Motor Inn, but it appeared from the opening and at the trial that that number included the room number of one of the Bui brothers, namely, room 128, which hotel records showed was the room in which Bui Quang stayed at the relevant time. A small additional piece of evidence opened and proved was that the house in Glendale Road was occupied by a series of persons, who ultimately gave evidence at the trial, although only for short periods before Mrs Van terminated the lease.
So far as the way in which the Crown opened the case against the applicant and his co-accused, it should be said, notwithstanding the detailed analysis attempted in the course of the submissions made on his behalf on this appeal, that the legal case against him was very simply expressed. It was contended that the applicant (and his co-accused) procured the commission of both the kidnapping and the consequent murder. It was said that they planned and organised both the kidnapping and the subsequent murder and that the applicant was the mastermind and Mrs Van was the facilitator in that she passed on the demands to Mrs Ha. So it was said that both the applicant and Mrs Van were actively involved and thus directly responsible for the kidnapping and that, inasmuch as they were fully aware of the consequences if the ransom were not paid, they were also responsible for the young man’s murder, even though the later execution was carried out by others.
So far as the evidence at the trial was concerned, again the evidence-in-chief departed very little from that which I have earlier described. Although counsel for the applicant had originally said that he was going to challenge little of the evidence, a number of the more important individual witnesses were cross-examined in detail, largely in an attempt to show that their recollection of events was mistaken if not deliberately wrong. In particular, Mrs Ha was cross-examined on a large number of details. It was suggested that much information relating to her private financial affairs and as to her contacts with the applicant had been deliberately omitted. The substance of the case put against her was that the applicant had in fact given her $400,000 which she had in the first place agreed to transfer to his bank accounts in Hong Kong, but which was never paid, except for the $20,000 referred to above. It should be remarked that the attack was sufficiently cogent for counsel for the prosecution to concede that that may have been the basis upon which the applicant’s demands for the $400,000 arose. Whether or not that was so, it could not have justified the methods adopted to recover the money, if the jury were satisfied, as clearly they must have been, that he had planned to strengthen his demands by the kidnapping of her son and then, if the money were not forthcoming, to have him murdered. Nevertheless, the attack meant that some matters of detail may not have been accepted by the jury and this may have been the explanation why the jury failed to agree on a verdict in relation to the co-accused, Mrs Van.
As explained to the jury in his charge, the learned judge did not find it necessary to examine the various legal principles in great detail for he correctly observed that, if the jury accepted the Crown case, it was of little consequence precisely what role the applicant played in terms of a doctrine of complicity. He would clearly be seen to have been planning and instigating those acts which led to the kidnapping of Mrs Ha’s son. Moreover, the learned judge pointed out that in these circumstances it was of little consequence whether the applicant and those connected with him originally formed an intention to kill Le Anh, for if the jury accepted that he was directly concerned in the kidnapping of the young man, then he would nevertheless be guilty if they were satisfied that the death of Le Anh was, in his terms, “a realistically possible consequence” of his involvement in the kidnapping itself. This followed even though the actual acts of kidnapping and murder were carried out by others. So far as the notion of concert was concerned, the learned judge felt it unnecessary to examine the matter in detail. As he put it, if two or more persons agree to commit a crime and all play a part in its commission, then they were all equally guilty of the crime. Whether or not that correctly dealt with the requirement of presence in a case somewhat different from the instant case, in substance the judge said that, if they accepted the Crown allegation that the applicant was the initiator, instigator or controlling force behind the kidnapping, then he must be taken as responsible for its commission and for its consequences. It was the participation in the plan which was challenged by counsel for the accused but, from the judge’s description, and from the lack of objection to any aspect of his charge in this respect, one may take it that counsel accepted that, if the facts were made out to the satisfaction of the jury, then there could be little doubt that the applicant was guilty of the relevant offences. On this application counsel for the applicant examined the concepts of concert in far greater detail, as will be seen below, but a sophisticated analysis was not seen necessary by the learned judge in the circumstances of the present case and there was in fact no ground argued on this application relating to the judge’s directions to the jury.
Whether placing the applicant on trial breached the provisions of s.42 - General
In these circumstances it is necessary to examine whether it was unlawful for the trial against the applicant to proceed on the substantive counts of kidnapping and murder. The simple question is whether the principle of speciality, in the form it was seemingly adopted in s.42 of the Act, precluded the Crown from bringing those counts against the applicant after he had been surrendered by the government of the United Kingdom for charges, inter alia, of conspiracy to kidnap and conspiracy to murder. The language of that section, which one would think was critical to the decision on this point, reads, so far as relevant, as follows:
“Where an extraditable person in relation to Australia is surrendered to Australia by a country …, the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia …
(a)be detained or tried in Australia for any offence that is alleged to have been committed … before the surrender of the person, other than:
(i)any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or
(ii)any other offence in respect of which the country consents to the person being so detained or tried, as the case may be. …”.
However, “the conduct constituting any such offence” is further defined for the purposes of this section in sub-s.(2) of s.10 of the Act, as follows:
“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.”[24]
[24]The concept of “conduct constituting an offence” is further defined by additional qualifications set out in s.10(3) for the purposes of considering the expression or like expressions in ss.7, 16 and 19, which essentially refer to the “double criminality” test laid down in the Act for extradition from Australia. The use of the expression in those sections is of relevance in a way which will be discussed later: see paras.[85]-[101].
Section 42 of the Act is said to give expression to the principle of speciality, which is in fact the heading given to the section. That principle is said to be fundamental to the modern law of extradition, as is that of double criminality. For present purposes, although I should emphasise that it will be necessary to examine the concept in greater detail later in this judgment, one may take this basic, but unelaborated, definition, given by Barwick, C.J. in Barton v. The Commonwealth[25], and adopted by Gummow and Callinan, JJ. in AB v. The Queen[26], to the effect that it derives from an “assurance to the country surrendering the fugitive that the surrendered person will only be dealt with in the requesting country for the crime in respect of which his surrender was sought and given”.
[25](1974) 131 C.L.R. 477 at 483.
[26](1999) 198 C.L.R. 111 at 128-129.
If one were to confine the concept of speciality to the very offence which was the subject of the request and surrender, then on the surface it would seem that there was little that could be said against the applicant’s contentions, for in the present case the two counts of kidnapping and murder upon which he was convicted were different from those which were the subject of the surrender by the United Kingdom government, namely conspiracy to kidnap and conspiracy to murder. As a matter of strict analysis and looking only at the required constituent elements of each of the crimes, it is obvious that in order to prove conspiracy it is unnecessary to show that the completed crime has been carried out, so that in the present case it would have been unnecessary for there to be proof of the kidnapping and the murder respectively either for the purpose of the charges in this jurisdiction or for the purpose of the extradition hearing before the Bow Street magistrate in order to satisfy him that the two surrender offences were established to the extent required under the Extradition Act 1989 (U.K.). Upon this assumed basis there would be nothing further that would have to be shown for the applicant to satisfy this Court that he was in fact tried on different offences from those which were the subject of the relevant order for surrender, which of course appeared not merely from the conclusions reached by the magistrate but which in strictness were to be seen in those offences described in the request for surrender which became the subject of the surrender warrant.
So also it was contended that the elements sought to be proved at the trial were different from those which the Australian government sought to, and were obliged to, prove at the extradition hearing in England. For a conspiracy to murder it was necessary to prove an arrangement or understanding that the victim be murdered and that the applicant intended that that result should occur. By contrast it was pointed out that the jury was directed at the trial that, in order to convict the applicant of murder, they need find only that he was a party to the kidnapping and that he knew or was aware that “a realistic possible consequence” of that action was that the victim would be murdered. In other words, as the judge also directed them, it was not necessary that they find that the applicant intended that the victim be killed. So it would follow, if one accepted that the elements required to prove guilt at the trial should be substantially identical to those required to prove each of the surrender offences, that there was no co-incidence of those elements sufficient to satisfy the principle of speciality as defined for the purposes of s.42. It is unnecessary for the present to examine the rest of the applicant’s contentions as to the elements of the relevant offences.
The answer to the question posed by the single ground of appeal would then, upon this view of the law, appear to be simple, that s.42 was not satisfied and the trial was a nullity. But can s.42 be properly construed in this way? Although by using the expression “conduct constituting the offence” the legislature might appear to be pointing to (only) acts of an accused which would make up the required elements of an extraditable offence, surely the extended meaning given in s.10(2) points to wider considerations being both relevant and necessary, let alone the additional “other” offences described in the latter part of para.(i) of s.42(a). More particularly, if speciality be a general principle of international law which is intended to be reflected in the Australian Act, then does not the understood content of that principle reflect on the meaning of the section? Further, the section and its requirements are of general application to the trial of all persons surrendered to Australia pursuant to a considerable number of mutual treaties and other international arrangements relating to extradition, many of which have explicit, but varying, provisions designed to achieve similar restrictions at trial. Moreover, it must be remembered that the Act also imposes an obligation on “extradition countries”, to give, as a condition of obtaining extradition of a person from this country, a “speciality assurance”[27] to Australia expressed (for relevant purposes) in identical terms: see s.23(3)(d), as explained by s.23(4), especially para.(d)(ii) thereof. For obvious reasons the two provisions should be given the same interpretation.
[27]See e.g. Pasini v. United Mexican States [2002] HCA 3 per Kirby, J. at para.[32] and the cases and sections cited in fn.30, save that I am not clear, with respect, why his Honour refers to s.42 in the context of a speciality assurance since that section is contained in Part IV of the Act dealing solely with extradition to Australia from other countries. It may be that the reference was intended for comparison so as to show, as arises in the present case, that the language of the relevant sections reflects mutual obligations undertaken by Australia and other “extradition countries” within the meaning of the Act.
As a matter of principle the interpretation put forward by the applicant and outlined above would appear too narrow. This is perhaps an unfortunate example in which to test the propositions as to what matters should coincide in order that the “principle” of speciality, as expressed in s.42, be satisfied, in that the extradition took place from one common law jurisdiction to another, indeed between jurisdictions in which the common law and statute law have both common origins and in theory little basis for divergence, whether one looks at the laws of conspiracy, murder or kidnapping. One knows that both jurisdictions’ development of the law in each area has not in fact been identical, although statutory amendments, especially as to conspiracy, have attempted to keep divergence small. At least the relevant elements of each offence may be said in large respect to be the same.
The section and the speciality rule, however, are not intended to be confined in their operation to extradition between England and Victoria, for s.42 applies to every person extradited to Australia from whatever nation is prepared to surrender persons to this country.[28] One must bear in mind that the “offence in respect of which the person was surrendered” is not ordinarily resolved, so far as the surrendering country is concerned, by reference to Victorian or Australian law, but, by reason of the principle of “double criminality”, it is ordinarily determined in practice by asking whether the factual basis of the “requested” offence would give rise to an offence in that country. One can speak only in generalities in this area, unfortunately, because the legal systems for extradition in each country vary to a greater or lesser extent. Essentially the double criminality rule “requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested states”.[29] The rule howsoever defined has never been disputed for the last century or more as it primarily rests on the basic principle of reciprocity “which underlies the whole structure of extradition”.[30] It importantly prevents the extradition of persons for offences not known to the requested state but its application has caused difficulties in practice over the years. In broad terms, upon an examination of the quite extensive and sometimes conflicting authority, it can be seen that there have been differences as to whether, or the extent to which, the relevant tribunals or authorities in the requested state must examine the nature and constituent elements of the offence described by the requesting country. It must be remembered that in most, if not all, jurisdictions the enquiry made in the requested state is not a judicial enquiry but is essentially administrative, although, to confuse matters greatly, the executive almost invariably relies upon a finding made by a magistrate, judge or other legally qualified tribunal as to the legal requirements which must be satisfied before any request leads to any surrender of the accused.[31] Although in most common law countries those decisions, as are those of the relevant minister or other official, are frequently the subject of some form of judicial review, the task of determining eligibility is ordinarily given to a judicial officer at a relatively low level in the hierarchy. It would be difficult enough for any judge to embark on a comparative exercise as to the legal significance of each of the constituent elements which are alleged to make up an offence in a foreign country and thereafter to compare those elements with those of a relevant offence in his or her own jurisdiction. But for the most part it has been seen to be impracticable for a magistrate to do so, thus placing the emphasis for the purpose of the double criminality rule on ascertaining whether the conduct alleged by the requesting country would amount to an offence in the jurisdiction with which the examining magistrate or other judicial officer is familiar. That is why in Australia s.19(2)(c) provides that one of the conditions of determining whether a person sought from Australia is eligible for surrender is that –
“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.”
Notwithstanding the language used, the term “extradition offence” is defined differently according to whether one is describing an offence in a country other than Australia or in relation to a part of Australia, so that for the purposes of s.19(2) the term means “an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than twelve months”.[32]
[28]One may ask, rhetorically, what would have been the relevant elements if the extradition hearing had been before the Sheriff of Lothian and the Borders: cf. Stanbrook and Stanbrook: Extradition Law and Practice (2nd ed.) para.8.69 fn.116?
[29]See Shearer at p.137.
[30]Ibid.
[31]That the enquiry conducted in this country under s.19 of the Act by a magistrate is merely administrative has been specifically reiterated only this year in Pasini.
[32]See s.5.
What we are here concerned with, of course, is not the process in Australia for extradition but that which may give rise in other countries to extradition to Australia, but the Australian provisions are not entirely dissimilar to those which apply elsewhere and I have already attempted to explain in detail the process adopted in the United Kingdom for the extradition of the applicant. It would have been apparent that the concern of the Bow Street magistrate was essentially an enquiry as to whether the alleged conduct constituted offences cognisable by the English courts.[33] It is fair to say that not dissimilar procedures are adopted and not dissimilar limited enquiries are engaged in by the relevant tribunals in most other countries with whom Australia has extradition arrangements.
[33]See in particular paras.[17]-[18].
Although the relevant offences for the purpose of the present case may be said to be very similar in content and the constituent elements in both jurisdictions substantially the same, that cannot be said of many other jurisdictions, so that the enquiry as to eligibility for surrender will frequently have involved and will involve an enquiry as to an offence, though similarly named (often in translation), where the elements are different, not necessarily as a matter of practical fact, but as a matter of legal description at the very least. That would seem the reason for the qualifications contained in sub-s.(3) of s.10 of the Act as to the definition of “conduct constituting an offence” which are laid down for the enquiry to be made pursuant to s.19(2)(c)[34], in that it is said (in para.(a)) that “where the conduct or equivalent conduct consists of two or more acts or omissions – regard may be had to all or to only one or some of those acts or omissions” and, pursuant to para.(b), that any difference between the categorisation or denomination of offences under the laws of the two countries “shall be disregarded”. Doubtless para.(a), at least, was designed to overcome what I shall describe as the “A + B + C + D” argument espoused by O’Dalaigh, C.J. in State (Furlong) v. Kelly[35], by Lord Bridge in Government of Canada v. Aronson[36] and in a dictum by Deane, J. in Riley v. The Commonwealth[37], to the effect that, if the similar offence in the requested state contains a further element beyond that which forms part of the offence which forms the basis of the request by the requesting State, then the mere fact that the evidence or other particulars forming part of the basis for the eligibility hearing contains the required element under the law of the requested State will not overcome the absence of that element as a matter of law in the offence which founds the basis for the request. Thus in Aronson, as in a number of other cases, the relevant offence under the Forgery and Counterfeiting Act 1981 (U.K.) contained an additional element requiring proof of an intention to induce somebody to accept the subject document as genuine, so that that person would act to his or her prejudice, which was not a requirement of the Canadian legislation. In Aronson that meant that there was a failure to satisfy the required test under the Fugitive Offenders’ Act 1967 (U.K.), which required proof that “the act or omission constituting the offence” would amount to an offence under United Kingdom law. Again the Australian provision is not strictly relevant to the basis upon which persons may be extradited to this country, but the present section and the cases to which I have just referred reflect the variety of approaches taken by extraditing countries in determining the basis upon which a person may be surrendered and in applying what is loosely called the double criminality rule. It is unnecessary to examine authorities in other jurisdictions which have considered the concept: it is sufficient to say that either the legislative basis for imposing the test has varied from country to country or the interpretations placed on the relevant statutory provisions and on the various provisions of different treaties, where those provisions may be directly invoked, has meant that it is not possible to state that there is any universal or common basis upon which the comparison is made, whatever be the desire, at least in many jurisdictions, to restrict extradition to circumstances where the claimed offence would on the face of the matter amount to criminal conduct in the requested State.[38]
[34]As well as for s.7(d) and s.16(2)(a)(i).
[35][1971] I.R. 132.
[36][1990] 1 A.C. 579 at 589-590.
[37](1985) 159 C.L.R. 1 at 18.
[38]Some of the more general descriptions of the double criminality rule appear in e.g. Gilbert: Aspects of Extradition Law (1991) pp.47-52; Stanbrook paras.2.01-2.09 and Shearer pp.137-149.
There should, I would concede, be some relationship between the primary offence and the additional offences permitted under the second clause of s.42(a)(i), in the sense that the prosecuting authority cannot pick out two or three isolated acts or omissions to justify the laying of some unconnected charge, but it is not necessary here to examine those limits: the connection between the relevant offences in the surrender warrant and thus the “offence”, which may be identified as the basis of the request as referred to in the first clause of the sub-paragraph, with the ultimate counts at the trial is usually more than obvious. Nor is it necessary here to consider what should happen if the magistrate or tribunal in the requested country explicitly decides that the evidence does not support one or more of the offences in the request, or whether that should be resolved as a matter of construction or upon the basis of abuse of process. Here again there was no such finding, or at least the materials made available to this Court after this length of time did not evidence any such negative finding. On such an issue, if there were a doubt, it would seem that the onus rests upon the applicant as the party seeking the stay of the proceeding or the quashing of the verdicts, for the claim is the equivalent of a plea in bar: see Boog[193] and Buck[194]; and cf. Aughterson[195].
[193]At 420.
[194]At 59.
[195]At p.257.
The end result in my opinion is that in construing s.42 (incorporating s.10(2)) one is concerned only with the manner in which the allegation is made and the acts and omissions which go to make up the allegation, not those which go to make up the constituent elements of the specified offence. That makes proper allowance for the variety of ways in which these allegations are made and the variety of documents which must be put forward to governments around the world to support claims for extradition. Bearing in mind again that different jurisdictions will view both similar offences and the manner of their proof in varying ways, this concentration on the facts, expressed in terms of “acts and omissions”, seems to give the necessary flexibility to what otherwise seems to be an awkwardly expressed definition of the “conduct” constituting an offence. In short, the concentration of the statutory provisions in the present Act is still upon the facts (“acts or omissions”) relied on for the purposes of the extradition proceeding and that is of significance for the purposes of both the double criminality and speciality rules as applied in this country.
One should here state that the preferred construction is consistent, or so it seems to me, with the general conclusions reached in the U.S., at least by federal courts, as to the ambit of the “specialty rule”. I speak with some diffidence, as it is difficult enough to comprehend the basis of the rule as applied in Australia let alone that of another country, but, as stated earlier[196], the High Court seems to have placed considerable weight from time to time on U.S. decisions on extradition. If it be correct to draw any analogy, then the rules previously mentioned, as set out in the Restatement and Bassiouni,[197] seem to have had consistent recent judicial acceptance. Accepting that explicit treaty provisions often have dictated different and not infrequently narrower conclusions, nevertheless it can be seen from just a few of the more recent cases that there are two significant elements in particular of the U.S. rule, one not mentioned so far in this country but pointing to a wider view, and the other consistent with the need to look to the factual basis of the requesting country’s case. In U.S. v. Saccoccia[198] it was said that “the inquiry into specialty boils down to whether … the surrendering state would deem conduct for which the requesting state actually prosecutes the defendant as interconnected with, as opposed to independent from, the acts for which he was extradited”. An inquiry into what a country “would” think may seem surprising, but it seems prompted by two factors, one that for various reasons a relevant consent has not been or cannot be obtained and secondly, it makes due allowance for the nature of any speciality undertaking given, which not infrequently, as in the present case, might be said to contain a less stringent requirement as to prosecution than otherwise would apply. Secondly, in U.S. v. Sensi[199] the Court said: “What the doctrine of specialty requires is that the prosecution be ‘based on the same facts as those set forth in the request for extradition’.”[200] Each of these cases was cited with approval and applied in U.S. v. Tse[201] where the Federal Court had to apply the speciality rule in circumstances where there was a treaty between the United States and Hong Kong, which used identical words to those appearing in s.6(4) of the U.K. Act. It was held that, although the Hong Kong authorities had chosen to extradite the appellant solely on a count of conspiracy to murder[202], the prosecution in the United States then charged the appellant with a further count of attempted murder on which he was also convicted. A ground of appeal alleging the unlawful prosecution on the latter count in breach of the speciality rule was rejected by the Court in that the offence was established “by the facts in respect of which his extradition had been granted”.[203]
[196]See fn.128.
[197]See paras.[74]-[76].
[198](1995) 58 F.3d 754 at 767.
[199](1989) 879 F.2d 888 at 895-896.
[200]Here citing the Restatement.
[201](1998) 135 F.3d 200 at 204-206.
[202]In circumstances not unlike the present there were originally seventeen counts, but the Attorney for the United States pursued extradition only on that single count, which was made the subject of the relevant surrender warrant.
[203]At 205.
The construction of s.42(a)(i) which I suggest is the correct one requires then the examination of the conduct put forward in support of the Australian government’s request for extradition in September 1997.[204] The acts and omissions by virtue of which the Australian government alleged that the various offences had been committed have already been set out in some detail.[205] The question which must then be asked is whether the offences of kidnapping and murder were offences of which the applicant could be convicted on proof of the conduct constituting, in the statutorily understood sense of that term, the offences of conspiracy to kidnap and conspiracy to murder, being the two relevant offences in the surrender warrant, which, although described necessarily in terms of the English law, can undoubtedly be taken as the equivalent of conspiracy to kidnap and conspiracy to murder in Victorian law, which were thus the offences in respect of which the applicant was surrendered. For the purpose of the enquiry as to what other offences may be the subject of a charge I am likewise of the opinion that, for reasons already stated, one can take a broad view of the factual basis relied upon by the Australian government, which consisted of the relevant acts and omissions for the purposes of the enquiry.
[204]No copy of the request itself was provided to this Court but in the Bow Street magistrate’s reasons it appears to have been dated 1 October 1997. The contents of the request appear from my earlier account of the extradition proceedings, the specific offences being sufficiently identified in Det. Sen. Con. Tragardh’s affidavit.
[205]See paras.[20]-[46] above.
Before turning to the question whether the material in the present case satisfies the statutory description such as to justify the Crown bringing the two charges of kidnapping and murder against the applicant in these circumstances, it is necessary to deal with certain of the arguments which have been put forward to challenge the conclusions as to the proper construction of the section which I have reached. In the course of a thorough and well-worked out argument counsel for the applicant put forward an interpretation of the section which depended upon a strict reading of its language, in the sense that it assumed, if I may say so, that for the purposes of extradition law one could identify offences and the factual bases of such offences in a manner familiar with the common law. In the circumstances it was not entirely difficult to maintain an argument based on that assumption, for the relevant offences were offences in two common law jurisdictions, with each of which both counsel and the members of this Court had a passing familiarity, whatever amendments and alterations may have been made to English law in the past 20 or 30 years.
In the first place counsel contended that the trial of the applicant took place in breach of the rule of speciality, but he expressed that rule, or so it seemed, in the limited terms which would deny the relevant prosecuting authorities the power to try an extradited person “for any offence committed before his return other than one for which he was returned”, unless that person had first had an opportunity to return to the surrendering country. It was further said that that rule, taken from the general statements in Barton, was “embodied wholly in s.42” of the Act. Although counsel referred also to s.10(2), the simple but limited expression of the speciality principle taken from Barton does not reflect the terms of s.42. That section now expresses the rule in relation to surrender of persons to Australia in terms which not only qualify the primary rule, but also contain a number of familiar riders to it, which I have discussed earlier. Apart from the question of consent, the section does not confine Australian prosecuting authorities solely to an offence which was the subject matter of the request for surrender, but contemplates other offences so long as they satisfy the test stated in the second clause of sub-para.(i) of s.42(a), as expanded by the terms of s.10(2). If what counsel intended to put, however, was that the rule set out in s.42 should be read in the light of some generally understood international rule of speciality, then I do not accept that that is an appropriate means of interpretation, having regard to the variety of ways in which the speciality rule has developed or been implemented in jurisdictions around the world. As already explained, there is no single common international principle of speciality to which one can turn, which is perhaps best demonstrated by the American Restatement’s cautious explanation of the rule as seen from the perspective of the United States.[206] Even the provisions of s.42 do not have universal application to extraditions to Australia, for the provisions of s.11 permit modifications of the rule by regulation, which in a considerable number of cases has been done to give effect to treaty arrangements, many of which in turn prescribe a differently expressed speciality rule to apply in relation to extraditions from those countries. A very high proportion of jurisdictions permit some flexibility extending beyond trial for the specific offence the subject of a request, but it is sufficient to say that I have been unable to identify any common rule which can properly be used to read down the language of s.42.
[206]See para.[74].
The second principal argument raised on behalf of the applicant was that the word “offence” should be read as if it “refers to an offence with specific elements” and that the Act, in particular the speciality provisions, refers to “conduct” and “acts or omissions” upon the basis that those expressions describe only the constituent elements of the relevant offences. I have already explained why I consider the expression “conduct constituting any such offence”, as explained in s.10(2), should not be read so narrowly. If I be correct in my interpretation of the first clause of s.42(a)(i), the offence “in respect of which” a person is surrendered will necessarily be the offence identified in the request and thus will be an offence according to a jurisdiction in Australia as the requesting country. Even if one confined one’s consideration to that offence, the second clause would, as I have said, have very little operation except for lesser true alternatives to such primary “offences”, if the courts were obliged to look only to constituent elements. But the object of the scheme of the Act is to facilitate extradition and the carrying out of Australian extradition treaty obligations[207], so that is doubtless why s.10(2) makes clear that the relevant conduct consists of acts or omissions by virtue of which the offence is alleged to have been committed. Those allegations, for the purposes of the extradition process and in order to secure surrender, must be expressed in terms which are capable of satisfying a court or tribunal in another country that the “conduct” would be sufficient to prove the equivalent offence in that jurisdiction. I have already given examples where constituent elements vary now even in common law countries, but the scheme is intended to operate in relation to all countries with which Australia has extradition arrangements and many of them will almost invariably have offences of a like kind, but which are described in different terms and in which proof of different matters will be required. It is to overcome that difficulty that the acts or omissions are required to be stated in the material supporting a request to an overseas extradition country. The requirement also emphasises the likelihood, or at least the potentiality, that the double criminality rule will be applied in a way which may not result in particular offences being included in a surrender warrant, albeit that the facts would justify prosecution in this country. This broad approach to the expression “conduct constituting any such offence” must look to facts beyond the bare conclusions frequently forming the legal constituent elements of common law crimes[208] such as the ones which were made the subject of the extradition request in this case. The argument should therefore be rejected.
[207]See s.3(b) and (c) and cf. the observations of the High Court in U.S.A. v. Cabal at 1675 para.[58].
[208]I include, of course, the statutory variants of those well-known common law offences.
Thirdly, counsel, for the purpose of supporting his argument, engaged in a careful and detailed examination of the relevant constituent elements of murder and conspiracy to murder and kidnapping and conspiracy to kidnap, in order to show that the constituent elements of kidnapping and murder, as presented by the trial judge to the jury, were different in law from those which would have been required to prove conspiracy to kidnap and in particular conspiracy to murder. Such a method of reasoning is far too artificial and impractical in the sense that the double criminality rule forces one into an essentially factual enquiry which is directed in the first place to offences which will vary in content from jurisdiction to jurisdiction. Historically the enquiry, if a section of a statute or clause of a treaty has permitted alternative charges, has looked to the facts on which the surrender was granted and I can discern no reason why the legislature, in departing from the language in the earlier legislation, in fact chose to limit the subject matter of the enquiry by the language adopted in ss.42 and 10(2).
In consequence, I do not believe that the analysis of the various charges attempted by counsel is apposite to a determination of what offences may or may not be brought by virtue of the provisions of s.42. One may take an example, however, to show how artificial the exercise appears to be. It was said that at the trial the jury were directed that it was sufficient that they find beyond reasonable doubt, in addition to the fact that the victim was murdered, only that the applicant, being a party to the kidnapping of the victim, “knew or was aware that a realistic possible consequence of such was that the victim would be murdered”. But it was said that, if the offence of conspiracy to murder had been charged, the jury would have had to be satisfied not only that an agreement had been reached with the other parties, but also that those parties had agreed that the course of conduct to be pursued by them would involve the commission of the murder and that the applicant and the other parties “each intended that the murder of Le Anh Tuan be committed”. But the jury had been directed that in the circumstances of the case they need not find that the applicant intended to kill or intended that the victim be killed. From this it was argued that the relevant intent was different for the offences of conspiracy to murder and murder, effectively because a lesser intent was required to prove the murder charge, one based only on knowledge that murder was a realistic possible consequence. Little was said as to the element of complicity, although the jury were directed on the subject. Such contentions, however, seem to me to be highly artificial. On the murder charge the jury had to be satisfied that the applicant was complicit in the killing, for he was not the perpetrator[209], but such complicity, if directed towards the ultimate killing of the victim, must have consisted of the same agreement as would have supported the conspiracy charge, one which is conventionally treated as a lesser charge, though the penalty is the same, because it does not require proof of the actual murder. This case was one where the murder had been committed and indeed the conspiracy could only be proved satisfactorily in all the circumstances by inference based, at least in part, on the fact of the murder and the relationship of the applicant to those who participated in its perpetration. It seems to me to be an inversion of what is required by s.42 to treat the charge in fact brought and the charge the subject of surrender as significantly different merely because the intent required at the actual trial was a lesser intent than that which otherwise would have been required for a conspiracy count.
[209]Cf. R. v. Franklin [2001] 2 V.R. 9.
Not only is such an analysis artificial, but its very exposition shows how impractical it is to define the relevant “acts and omissions” by reference only to the constituent elements of each offence. Moreover the applicant argues, in the alternative, that the Crown did not even attempt to prove that which it was required to prove in order to establish that the applicant was guilty of conspiracy to murder. But the enquiry is not as to what the Crown attempted to prove at the trial but as to the conduct, namely the relevant acts and omissions, by virtue of which it had been alleged, for the purposes of the extradition proceedings that the relevant offences had been committed. It is the facts which constitute the allegations for the purpose of the request which are critical for, indeed, it is only in this rare case, where the point has not previously been taken, that one knows what the evidence was at the trial or how the Crown then sought to put the case. Ordinarily for the purposes of s.42 a stay will be sought in order to avoid a trial, upon the basis that there should be no trial, so that the enquiry must be as to the acts and omissions relied upon to seek extradition of the offender.
Finally I turn to an argument, to which reference has already been made, which was common to the contentions relating to both the murder and kidnapping counts. It was said in each case that the completed act of kidnapping and the completed act of murder were not required to be proved in order that the surrender offences of conspiracy to kidnap and conspiracy to murder, respectively, could be made out. Undoubtedly that is so, in that that particular element of the completed offence need not be established on a trial for conspiracy. That seems, however, to be no answer to the right of the prosecuting authorities to prosecute for any other permitted offence under s.42 if one concludes, as I have already, that one is not looking for constituent elements but more broadly at the acts and omissions by which it has been alleged for the purposes of the request that the offences were committed. In the present case the difference is highly artificial in that both the kidnapping and murder were clearly established and formed part of the essential circumstantial case against the applicant, whether one looks at the counts of kidnapping and murder or whether one looks to the charges of conspiracy to commit each offence which were the subject of the surrender warrant.
I should mention that, as part of his argument, counsel contended that the Act should be read strictly and, in case of ambiguity, in favour of the applicant. It is unnecessary to rehearse the authorities, some of which were cited, which support such an approach. When I have said that the relevant provisions should be approached broadly, I was not intending to deny that rule of construction, but I intended to indicate that, when dealing with a subject affecting this country’s international dealings and which, at least in part, are affected by treaty arrangements, one should look at the whole of the statutory scheme to see what the legislature in fact intended. The following passage in the recent High Court decision of Cabal[210] is significant:
“Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country’s ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned.”
Now, although this is an application by a person in fact extradited to this country, the same considerations must apply to the interpretation of the relevant expressions where they appear in these sections dealing with extradition from Australia such as ss.19 and 22. An understanding of the significance of the speciality rule, as modified for this country, supports an interpretation of the critical sections in the way I have suggested and there is no relevant ambiguity.
[210]At 1675 para.[58].
There were a number of contentions as to the legal consequences of a failure to comply with s.42 but they need only to be addressed if, as a matter of the proper application of the section to the facts of the case, there was no right to charge kidnapping or murder after the applicant had been surrendered on the relevant two conspiracy counts.
Conclusions as to the factual circumstances
It is unnecessary to examine in further detail the facts of the present case, nor the careful and detailed arguments put in support of the applicant’s case. As I have said, the assumption behind each of those arguments was that they depended upon the constituent elements being the only relevant conduct for the purposes of s.42. Having rejected that contention, those specific arguments fall to the ground.
It remains only to ascertain in more general terms whether the speciality rule as adopted in s.42 of the Act has been complied with. If one takes a broad approach, because of the nature of the law relating to extradition, to questions of this kind, and if one is entitled to look at the whole of the acts and omissions by which it was alleged that which I have called the primary offences of conspiracy were committed, then in my opinion it has not been established that the prosecuting authorities were not entitled to bring the counts of kidnapping and murder against the applicant, nor has it been shown in any way that the principle of speciality as so defined in the statute has been violated. If one proceeds past the bare bones of the constituent elements of the relevant offences, as one must both in accordance with authority and upon a proper construction of the Act, then one is looking to a case in relation to each count which was founded upon a detailed circumstantial case in which numerous acts and omissions were relied upon in order to allege the commission of the subject offences. It is conceivable that less might have been alleged and set out in the Tragardh affidavit (although I would not wish to suggest that it was excessive in length), but the essential facts had to be stated in order that the Bow Street magistrate might carry out his function under the corresponding English Act, as will almost invariably occur whenever a request for extradition is made by Australia to an extradition country.
The basis of the allegation in relation to each charge doubtless consists of a considerable number of acts and omissions, but the totality made a compelling case both for the relevant findings in the United Kingdom on the substantive charges and for the continued prosecution of each of the relevant counts in Australia. It is a mystery to this Court which has never been explained how the learned magistrate came to certify only in respect of the conspiracy counts, as there seems to be no evidence that he deliberately reached a conclusion that the substantive counts were not made out. Whatever view one takes of his decision and the reasons for it, or perhaps of the reasons why counsel for the Commonwealth did not seek findings to support a warrant covering all offences, the factual basis submitted to the magistrate included all the necessary facts to establish counts of both the conspiracy and the substantive offences. As I have already said, the fact of the kidnapping and the fact of the murder were not isolated events separated by time and circumstance from the conspiracies. Although they need not have been proved as such to make out the conspiracy offences, the fact that the planned kidnapping and murder were carried out was a critical “act or omission” by which the conspiracies were alleged.
This prosecution case seems to me, if I may say so, to be the very case which was contemplated by the second clause of s.42(a)(i) in that one is concerned with essentially the same conduct. Because the task of applying the double criminality test, whatever its form, is ordinarily vested in magistrates or other tribunals in a similar range in the judicial hierarchy, apparent errors of misunderstanding may occur which can result in an inappropriate warrant for surrender being issued.[211] In many jurisdictions, though not in Australia,[212] there is no way of reviewing such a magistrate’s or tribunal’s finding,[213] although the offender may have certain remedies by way of habeas corpus or other judicial review by which that person may be entitled to challenge either the finding or more often the ministerial act of issuing the warrant. There is also the “remedy” of seeking consent from the requested country which is explicitly given by sub-paragraph (ii) of s.42(a). Some American jurisdictions indeed have posed a test as to alternative offences in terms of charges to which the requested country would not object.[214] Here it can be said that if the objection had been taken at an appropriate time, there could not be the slightest doubt that consent would have been sought and given before the trial got under way. The fact that that cannot now be safely done, shows how unsatisfactory it is that the point can now be taken. Indeed, in one Canadian case it has even been held that the conviction will be affirmed in the circumstances if there has been no substantial injustice: see R. v. Kelly (No. 2)[215].
[211]I have already mentioned that it is not here necessary to consider what should occur if a charge is held specifically to offend the double criminality rule, but one assumes that, in one way or another, it could not be pursued.
[212]See the general right of appeal given in s.21(1) of the Act.
[213]See in the U.S.A. e.g. Bassiouni at pp.579ff, “There is no direct appeal from the decision of the judicial officer”; and “Case law and statute clearly define the narrow scope of habeas corpus review” (at p.579). See also In the Matter of Mackin (1991) 668 F.2d 122. As to U.K. procedures, there is now, for the first time, a statutory right to habeas corpus (see s.11 of the U.K. Act) and the requesting state is given a right of appeal under s.10 of the U.K. Act; see Stanbrook Ch.9.
[214]See Fiocconi v. A.G. (U.S.) (1972) 462 F.2d 475; and cf. R. v. Nicholle, exp. Boog.
[215][1916] 27 C.C.C. 140, as noted in La Forest p.235, although I have already observed that the Canadian extradition law has a number of differences from our own.
In consequence, having regard to the evidence and to the fact that no independent argument was put upon the relationship between the conduct relied upon for the substantive and the conspiracy offences other than that which depended upon proof of constituent elements, I am satisfied that the Crown was entitled to have the applicant tried for the substantive offences of kidnapping and murder, in that they were other offences upon which he could have been convicted on proof of the relevant conduct constituting the offences of conspiracy to kidnap and conspiracy to murder, as charged in the Australian government’s request.
For these reasons, regrettably expressed at too great a length, I consider that the application should be dismissed.
BUCHANAN, J.A.:
In my opinion the application should be dismissed for the reasons stated by Ormiston, J.A.
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