Riley, Robert Leslie v Evans, Clyde

Re: ROBERT LESLIE RILEY
And: CLYDE EVANS; KEVIN WEBB; FRANK MACKENZIE; COMMONWEALTH OF AUSTRALIA
Re: WALLACE EDWARD BUTLER
And: CLYDE EVANS; KEVIN WEBB; FRANK MACKENZIE; ERIC QUARMBY; COMMONWEALTH OF
AUSTRALIA (1983) 80 FLR 219
Nos. G218 and G227 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Administrative Law - Extradition - Review of magistrate's decision to commit to prison to await surrender - Whether foreign offences constitute extraditable crimes - Whether foreign documents admissible in evidence - Applicability of local rules of evidence - Sufficiency of evidence to justify trial as if offences committed locally - Natural justice considerations.

Administrative Appeals Tribunal Act 1975

Administrative Decisions (Judicial Review) Act 1977 - s.5

Crimes Act 1900 (N.S.W.) - s.345

Crimes Act 1914 (Cth) - s.5

Customs Act 1901 - secns. 4, 233B, 236 and Schedule VI

Extradition (Foreign States) Act 1966 - secns. 4, 9, 10, 14, 15, 16, 17, 18, 19 and 26

Extradition (United States of America) Regulations - reg. 3 and the Schedule thereto comprising the Treaty on Extradition between Australia and the United States of America

Extradition Act 1870 (Eng.) - secns. 5 and 9

Fugitive Offenders Act 1881 (Eng.)

Fugitive Offenders Act 1967 (Eng.) - secns. 7 and 11

Justices Act 1902 (N.S.W.) - s.41(6)

Narcotic Drugs Act 1967

Poisons Act 1966 (N.S.W.) - secns. 4, 21(1)(a) and 26.

Administrative Law - Extradition - Review of magistrate's decision to commit to prison to await surrender - Whether foreign offences constitute extraditable crimes - Whether foreign documents admissible in evidence - Applicability of local rules of evidence - Sufficiency of evidence to justify trial as if offences committed locally - Natural justice considerations - Administrative Appeals Tribunal Act 1975 (Cth) - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Crimes Act 1900 (NSW), s 345 - Crimes Act 1914 (Cth), s 5 - Customs Act 1901 (Cth), ss 4, 233B, 236 and Sched VI - Extradition (Foreign States) Act 1966 (Cth), ss 4, 9, 10, 14, 15, 16, 17, 18, 19 and 26 - Extradition (United States of America) Regulations, reg 3 and the Schedule thereto comprising the Treaty on Extradition between Australia and the United States of America - Extradition Act 1870 (Imp), ss 5 and 9 - Fugitive Offenders Act 1881 (Imp) - Fugitive Offenders Act 1967 (Imp), ss 7 and 11 - Justices Act 1902 (NSW), s 41(6) - Narcotics Drugs Act 1967 (Cth) - Poisons Act 1966 (NSW), ss 4, 21(1)(a) and 26.

HEADNOTE

Requests were made by the United States of America pursuant to the Treaty of Extradition between it and Australia which came into force on 8 May 1976 for the extradition of the two applicants to the United States of America to be dealt with on a large number of drug charges.

Warrants for the apprehension of the applicants were issued by a magistrate pursuant to s 16(1)(b) of the Extradition (Foreign States) Act 1966.

The applicants were apprehended in New South Wales and brought before the third respondent who was a magistrate in Sydney.

The first and second respondents were magistrates who dealt with the cases at earlier stages.

The third respondent, after a hearing, ordered both applicants to be committed to prison to await the warrant of the Attorney-General for their surrender.

Both applicants then filed applications under s 5 of the Administrative Decisions (Judicial Review) Act 1977.

Held: (1) The role of a magistrate under s 17(6) of the Extradition (Foreign States) Act 1966 is an administrative one.

(2) The task of the Federal Court is to determine whether there was an error of law in respect of the proceedings before the magistrate of the nature referred to in s 5 of the Administrative Decisions (Judicial Review) Act 1977.

(3) The question posed is whether the act "constituting the offence" (or its "equivalent") would, if it had taken place in New South Wales constitute an offence against a law in force in that State which is described in Sched 1 of the Act.

(4) There was sufficient evidence on some of the charges to support the issue of the warrants of commitment against both applicants and their applications should be dismissed.

Per Fox J - The fact that Form 5 in Sched 2 to the Extradition (Foreign States) Act 1966 refers to the "fugitive" showing cause does not imply that the onus of proof is on the fugitive.

HEARING

Sydney, 1983, October 4-7, 10-13; November 28. #DATE 28:11:1983

APPLICATION

Application under s 5 of the Administrative Decisions (Judicial Review) Act 1977.

T E F Hughes QC, M J Neil and T Neil (10 and 11 October only), for the applicant Riley.

R J Burbidge QC, and J L Trew for the applicant Butler.

J C S Burchett QC and J S Hilton, for the respondents.

Cur adv vult

Solicitor for the applicant Riley: W P O'Brien.

Solicitor for the applicant Butler: Norman Gibson & Co.

Solicitor for the respondents: B J O'Donovan, Commonwealth Crown Solicitor.

MPS

ORDER

1. The fourth respondent file and serve short minutes of order within eight (8) days.

2. The applicant file and serve any variations sought to those short minutes of order within eight (8) days after service of the short minutes.

3. The matter be listed on a date to be fixed by the District Registrar on application of any party after the expiration of sixteen (16) days. 1. The fifth respondent file and serve short minutes of order within eigth (8) days.

2. The applicant file and serve any variations sought to those short minutes of order within eight (8) days after service of the short minutes.

3. The matter be listed on a date to be fixed by the District Registrar on application of any party after the expiration of sixteen (16) days.

JUDGE1

I am hearing together two separate applications under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The cases were dealt with together by the learned magistrate whose decision is the subject of the applications. He is Mr. Mackenzie, the third-named respondent, the other two respondents being magistrates who dealt with the matter at earlier stages. The two applicants are said to have been associated in illegal drug activities in the United States of America, and the evidence, which has to be kept distinct, nevertheless shows that for the most part their activities were closely interlocked.

Requests were made by the United States of America pursuant to the Treaty on Extradition between it and Australia, which came into force on 8 May 1976 ("the Treaty"), for the extradition of the applicants to that country, to be dealt with on a large number of drug charges. The charges were on an indictment found by a grand jury. It is sufficient for the moment to say that the charges relied upon were in relation to the importation of drugs, and possession of them with intent to distribute. The drugs were marihuana and/or hashish. The requests were made through diplomatic channels, in accordance with Art. XI(1) of the Treaty, and were accompanied by the documents referred to in that Article. Warrants for the apprehension of the applicants (in the Extradition (Foreign States) Act 1966 ("the Act") referred to as "fugitives") were issued by a magistrate pursuant to s.16(1)(b) of the Act. The Attorney-General did not direct those warrants to be cancelled, as he could have done (see s.16(5)), but did inform Mr. McKenzie that a request had been made (see s.15(1)(b)). In due course, being found in New South Wales, they were apprehended and brought before a magistrate in Sydney. The magistrate proceeded under the extradition legislation (see s.17 of the Act and Arts. VI, X and XI(3) of the Treaty) and, after a hearing at which all parties were represented by counsel, ordered both of the present applicants to be commited to prison to await the warrant of the Attorney-General for their surrender. This was on 29 July of this year, and the applicants have been in prison since. I understand that habeas corpus applications were made in respect of the applicants, and that they have come before the Supreme Court of New South Wales, but have not to date been proceeded with (note secns. 18 and 19 of the Act). The application of Mr. Riley, under s.5 of the Judicial Review Act, was filed on 5 August 1983, that of Mr. Butler under the same section on 11 August 1983. Although decisions made by other respondents at earlier stages are referred to in the applications, the only ones to which arguments have related are the decisions to commit to which I have referred. The same counsel appeared for all respondents. Amended applications were filed on the second-last day of the hearing before me, to support arguments already put. A number of grounds are relied upon, and I will deal with them in turn.

Something should first be said of the legislation and the Treaty. The previous relevant legislation comprised the Imperial Extradition Acts 1870 to 1935, but the operation of these has been excluded by s.6(1)(a) of the present Act, with a saving in respect of the operation of the Fugitive Offenders Act 1881.

A "fugitive" is defined in s.4(1) to mean "a person accused of an extradition crime that is alleged to have been committed . . . at a place in a foreign state . . . ".

"Extradition crime" is dealt with in s.4(1A), which was amended to its present form in 1973:
"(1A) An offence against the law of, or of a part of, a foreign state is an extradition crime for the purposes of this Act if, and only if, the act or omission constituting the offence or the equivalent act or omission, or, where the offence is constituted by two or more acts or omissions, any of those acts or omissions or any equivalent act or omission, would, if it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia that -
(a) is described in Schedule 1; or
(b) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence."

Section 10(1)(a) is as follows:
"10. (1) Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state
(a) if this Act applies in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations; or"

This paragraph is applicable to the situation vis a vis the United States. The Extradition (United States of America) Regulations came into effect on 27 August 1976. Regulation 3(3) is as follows:
"3. . . .
(3) The Act applies in relation to the United States of America subject also -
(a) to the Treaty; and
(b) to the condition that any other limitations, conditions, exceptions or qualifications to which the application of the Act is subject by reason of sub-section 9(2) of the Act cease to have effect.
after the time of coming into force of the Treaty."
The Treaty is set out in the Schedule to the Regulations.

It is not necessary to consider the limitations and conditions referred to in s.9(2) of the Act; they were those to which the operation of the Orders in Council under the old Acts were subject, and which were continued by that sub-section. The relevantly operative part of the Regulations is that the Act is to apply "subject to the Treaty". The justification relied upon for this apparent fracture of established constitutional principle is, seemingly, in s.10(1)(a) of the Act. This refers to "such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect" to the Treaty. There seems to me to be some slight of hand when one turns to the words of the sub-regulation, but I would read "subject to" in the sense of the language used in the Act. A provision in somewhat similar language to that used in the Act is not uncommon in extradition legislation (s.5 of the Extradition Act 1870; see Beese v. Governor of Ackford Remand Centre and Federal German Republic (1973) 1 W.L.R. 1426, at p.1428; R. v. Governor of Pentonville Prison Ex Parte Dowse (1983) 2 W.L.R. 791, at p.795; and note Grace Brothers Proprietary Limited v. The Commonwealth (1946) 72 C.L.R. 269). The effect of the Regulation is of course not to enact the Treaty, but to impose qualifications on the operation of the Act. A qualification may arise from a positive provision in the Treaty which impliedly overrides a provision of the Act, in which event the intention must be that the positive provision becomes operative. The Act is a general one, which prescribes some matters but leaves to the Regulations their application to particular Treaties, as they are entered into. There are nevertheless bound to be difficulties in subjecting (in the sense mentioned) a municipal law to the terms of a bilateral internationl agreement.

The question whether a person should be extradited is not left to a magistrate. It is regarded as affecting sovereign rights and privileges, and the decision is in our country left to the Attorney-General. The request for extradition comes formally, through diplomatic channels, and is to be accompanied by certain documents (see Art. XI(1) and (2) of the Treaty). Commonly, it will rest with the Attorney-General, on receipt of the request, to decide whether a warrant for the apprehension of the person should issue, and to authorise its issue by a magistrate (s.15 of the Act). The issue of the warrant requiring the person to be surrendered to the foreign state (s.18(2)) is a matter for the Attorney-General. He is required to consider the matters mentioned in s.14, and to act accordingly, and has, under s.18(2) a residual discretion.

The role of the magistrate when a person has been apprehended and brought before him, is dealt with in s.17(6) of the Act:
"(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph (a) of sub-section (1) of section 15 or the Magistrate receives a notice by the Attorney-General under paragraph (b) of that sub-section and -
(a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person;
(b) there is produced to the Magistrate -
(i) in the case of a person who is accused of an extradition crime - such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory; or
(ii) in the case of a person who is alleged to have been convicted of an extradition crime - sufficient evidence to satisfy the "Magistrate" that the person has been convicted of that crime; and
(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is Liable to be surrendered to the foreign state that made the requisition for the surrender.
the Magistrate shall, by warrant in accordance with Form 5 in Schedule 2, commit the person to prison to await the warrant of the Attorney-General for his surrender but otherwise shall order that the person be released."

In the Treaty the test of the sufficiency of evidence is expressed as being such as would "justify his trial or committal for trial" (Arts. VI and XI(3)). Art. XI(5) describes the proceedings as "the examination of the request for extradition".

It is agreed between the parties, in my view correctly, that the magistrate's role is an administrative one. He is part of the administrative machinery whereby a decision is made, and, if appropriate, action is taken for the extradition of the "fugitive". It is not disputed that his decision to issue a warrant of committal in this case was a "decision of an administrative character made under an enactment" within the meaning of the Judicial Review Act.

The task of this Court is to determine whether there was an error of law in respect of the proceedings before the magistrate of the nature referred to in s.5 of the Judicial Review Act. Counsel for the applicants have adopted each other's arguments, so far as relevant to their respective cases. Particular matters relied upon, expressed in my own words, are as follows:
1. That some of the counts did not set out extraditable offences.
2. That the magistrate applied a wrong test when considering the sufficiency of the evidence;
3. That the magistrate erred in not following the procedure, mutatis mutandis of the Justices Act 1902, and particularly s.41(6) thereof;
4. That there was a denial of natural justice in that the magistrate admitted all the evidence tendered by the Commonwealth, subject to the objections made at the time by counsel for the present applicants, but did not state his decision thereon before counsel addressed, or did not, alternatively, give counsel an opportunity to address after he had reserved his decision and before making the orders of committal;
5. Within the meaning of s.5(1)(h) of the Act (as affected by sub-s. (3)), there was no evidence or other material to justify the making of the decision.

A starting point is to determine whether the crimes alleged, or one or more of them, constitute extraditable crimes. The Act and the Treaty have lists of crimes for which extradition may be granted, and they differ in a number of respects. Both the Treaty (in Art. VI) and the Act (in s.4(1A)) provide for offences (or "acts or omissions") which in the requested State are "equivalent". Section 4(1A), after referring to acts or omissions constituting the offence charged, refers to equivalent acts or omissions, while Art. VI refers to the offence charged or its equivalent. Art. II of the Treaty commences (in para. (1)) as follows:
"(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death:"
Item 28 in this paragraph refers to an offence "against the laws relating to narcotics, dangerous drugs or psychotropic substances". In counts 1 and 2 charged by the United States, marihuana and hashish are referred to as "non-narcotic controlled substances" (see Title 21, s.802(6), (15) and (16) of the United States Code). In each of the other counts the drug in question is referred to as a "controlled substance". The nomenclature may be one of convenient statutory classification rather than pharmacological definition. In the papers accompanying the request for extradition there are several references to the offences charges being "narcotic offences". An entry in 28 Corpus Juris Secundum Drugs and Narcotics Supplement s.3, at pp.10-11 under the heading "marijuana" helps to explain the position:
"The word 'marijuana' is of Mexican origin, and is variously spelled as 'mariguana', 'marijuana,' 'marihuana.' Marijuana is not a scientific term; it is the Mexican name for 'cannabis sativa,' which is more commonly known as 'Indian hemp.' It is defined to mean a habit-forming substance used by addicts in the form of cigarettes; the narcotic product of the plant cannabis sativa; and while marijuana is not technically a narcotic, it is treated for all purposes just like an opiate, and usually it comes within such statutory terms as 'narcotics' or 'narcotic drugs,' but not if it is expressly excluded therefrom, and where it is not classified as a narcotic or narcotic drug it may be classified as a dangerous drug, and marijuana may be classified as an injurious substance."

Also, at p.135:
"It is within the power of Congress or a state to classify marijuana as a narcotic drug, or as a controlled substance, and to proscribe its possession and use."
I was referred to Blakiston's New Gould Medical Dictionary (2nd ed. (1956) at p.778) which includes marihuana and hashish under the definition of narcotic drugs. It is noteworthy, however, that the 3rd ed. (1972) of what appears to be the successor to this work, does not include those substances within the definition of narcotic (see at p.1008). There was no expert evidence before the 'magistrate' which would help him make a finding on the question whether the subject drugs are narcotics, or even on the question whether the term has a precise scientific meaning. It can be argued that the reference in item 28 of the Schedule to the Treaty is to laws which relate to substances which are in fact narcotics, as distinct from laws which deal with what the laws in terms classify or designate as narcotics. It seems unnecessary for me to resolve this question, so far as the Treaty is concerned. In the present case the drugs are not included in the definition of narcotics in the United States Code, and I think I should not proceed in reliance on the "narcotics" part of item 28. Although reference was made by counsel for the Commonwealth to the possibility of the drugs being "dangerous drugs", there was no precise material before the magistrate which would assist him to such a conclusion, and he did not make any finding on the matter.

It is therefore necessary to look beyond para. (1) of the Article, to para. (2), which is as follows:
"(2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America."
In applying this paragraph, it is necessary to have regard to Art. II(5):
"(5) If extradition is requested for any offence mentioned in a preceding paragraph of this Article and that offence is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offence shall be extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offence within the same category of offences made extraditable by that preceding paragraph of this Article and whether or not the laws of the requested State denominate the offence by the same terminology."

Article II(2) requires reference to the terms of the Act. I have set out s.4(1A), which deals with extradition crimes and relates to Schedule 1. Item 34 of that Schedule reads:
"34. An offence against the law relating to dangerous drugs, narcotics or psychotropic substances."

The question posed is whether the act "constituting the offence" (or its "equivalent") would, if it had taken place in New South Wales, constitute an offence against a law in force in that State which is described in Schedule 1. There is first a question as to the nature of the drugs. I have been referred by counsel for the Commonwealth to s.233B of the Customs Act 1901, sub-s. (1) of which creates a rather comprehensive series of offences relating to "prohibited imports". Sub-section (2) says that for the purpose of s.233B, "prohibited imports" are "narcotic goods". The section was amended in 1974 and 1979 but not in a way affecting the present proceedings. In s.4(1) of the Customs Act "narcotic goods" are defined as meaning "goods that consist of a narcotic substance". In the same sub-section "narcotic substance" is defined to mean "a substance or thing the name of which is specified in column 1 of Schedule VI or any other substance or thing for the time being declared . . .".

Schedule VI, in the first column refers to cannabis, cannabis resin, and tetrahydrocannabinols. It is agreed (and is the evidence) that hashish is the same as cannabis resin, that marihuana is cannabis, and that tetrahydrocannabinols is the active ingredient of cannabis. The present Schedule VI was introduced by Act No. 154 of 1977, which came into force on 10 November 1977. The previous Schedule VI, introduced by Act No. 134 of 1971, listed cannabis and cannabis resin, but not tetrahydrocannabinols. "Cannabis", "cannabis fibre", "cannabis plant" and "cannabis resin" were defined in s.4(1) as they now are. The definition of "narcotic goods" and "narcotic substance" were the same as they now are. By s.233B(1) of the Customs Act the importation of a prohibited import, possession of a prohibited import, and possession of a prohibited import reasonably suspected of having been imported in contravention of the Act are offences and are by s.235 punishable by not less than one year's imprisonment.

The offences charged include possession with intent to distribute the drugs. I doubt whether any of the offences under the Customs Act can be regarded as an equivalent to that offence. The learned magistrate turned to the Poisons Act 1966 (N.S.W.). Section 21(1)(a) of that Act makes possession for supply an offence (see definition of "supply" in s.4), and plainly includes the drugs now in question. The Act does not, however, refer to the drugs as being narcotic. There is no evidence which says that those drugs are, or are generally understood to be narcotic.

A question can be asked whether, when item 34 is using descriptive words, the reference is to drugs which, according to general or scientific meaning, satisfy the description, or on the other hand, to drugs designated in the legislation as drugs of that description, or whether it is sufficient if one or other of these tests is satisfied. This is not an easy question to answer, and I do not know that it should receive the same answer in relation to each item. When dealing with the Customs Act, there is a statutory definition which, so far as appears, is not an artificial one. When considering the application of the Poisons Act, there is no statutory definition which uses the descriptive term "narcotic". I think, however, that the magistrate, considering the matter in an administrative capacity, is entitled to take account both of the medical dictionary definition and of the Customs Act definition. He is also entitled to consider the terms of the Narcotic Drugs Act 1967 and the international Convention on Narcotic Drugs 1961, which is the First Schedule thereto.

I am of the view that possession for supply (s.21(1)(a)) is an equivalent to the offence charged under the U.S.A. law of possession with intent to distribute. It matters not, in relation to this situation, whether one compares acts or omissions (vide s.4(1A)) or "offences" (vide Arts. II, VI). There has not been any argument that "possession" is a state, as compared, in ordinary usage, with "act" or "omission" (cf. Beckwith v. The Queen (1976) 135 C.L.R. 569, at p.575). Nor has there been argument as to the application, as an equivalent, of other paragraphs of s.21(1).

It follows in my view that the specific charges I have been considering are extraditable offences under the laws of Australia. Returning to Art. II(2), the evidence is that all the offences charged are felonies in the United States. They are also punishable by not less than one year's imprisonment. The matters charged therefore constitute extraditable offences under the Treaty.

There are three other offences charged against each applicant, two of conspiracy, and the third an offence described as "continuing criminal enterprise". I shall deal later with these three offences.

So far as ground (2) is concerned, it was said that, although the magistrate decided that there was a prima facie case (in relation to each count) he did not apply the test for which the legislation and Treaty provide. I have already set out s.17(6)(b)(i). Article VI and Art. XI(3), to which I have already made some reference, are as follows:
Art VI
"Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted by the courts of the requesting State."
. . .
Art XI
"(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his trial or committal for trial if the offence had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers."
(emphasis added)

While s.17 of the Act says simply that the evidence is to be such as to "justify his trial", the phrase in the Treaty (twice used) is "justifying his trial or committal for trial". The terms used would include summary trial, or trial on indictment, both of which, as it seems to me, are covered by the scheme. No reference is made anywhere to "prima facie case". It is, however, a phrase in common use, not least of all in relation to extradition matters where the relevant legislation (e.g. the Extradition Act 1870) uses the same language as the Treaty and Act now before me. For example, Lord Wilberforce used the phrase in this context in Government of Australia v. Harrod (1975) 1 W.L.R. 745, at p.748. In Beese (supra.), Lord Diplock treated the words "found sufficient to justify committal" as equivalent to "a prima facie case of guilt" (see at p.1429). In R. v. Governor of Brixton Prison ex parte Armah (1968) A.C. 192, which was a case under the Fugitive Offenders Act 1881, Lord Reid said, at p.229, what must with respect be abundantly clear, namely that the phrase "prima facie" "is not self-explanatory: what is it that the case shows prima facie or at first sight?". In R. v. Governor of Brixton Prison Ex Parte Schtraks (1964) A.C. 556, the test posed by the legislation was expressed by Lord Reid (p.580) as follows:
". . . the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty."

The magistrate heard extensive argument concerning the Act and Treaty, and their application, without any diminution or qualification of the prescribed test being suggested, and it seems to me that I should not assume that in reaching his decision he failed to apply that test. On the contrary, it seems to me from a reading of his decision that he was conscious of the correct test, and applied it.

As to ground (3), the matter was put to me by respective counsel for the applicants on the basis that what a magistrate is required to do, in a case such as the present, is to follow the procedure of s.41 of the Justices Act 1902 (N.S.W.) and particularly sub-s. (6) thereof. While proceedings under the Act or Treaty are no doubt similar in some respects to those of committal proceedings, there is, in my view, no such requirement. It is to be noted that s.17(6)(b)(i) says "justify the trial", without reference to committal. It is not to be assumed that the added reference in the Treaty to "committal for trial" is intended to invoke the provisions of the Justices Act. Both phrases are dealing with the measure of proof, and not with procedure. The magistrate does not of course commit for trial, and there can be no trial of the offence which he considers. No plea can be taken.

It is of interest, and, I think of some significance in relation to the arguments submitted, that s.9 of the Extradition Act 1870 has been omitted in the Australian Act. It reads as follows:
"9. When a fugitive criminal is brought before the police magistrate, the police magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England.
The police magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

The question whether the offence charged is of a political character is now, in this country, one for the Attorney-General.

In relation to ground (4), it seems to me that there was not a denial of natural justice. Submissions were made at length before the magistrate concerning the admissibility before him of certain passages in the documents, and objections were taken on many occasions. When it came to final addresses, counsel representing the applicants dealt with the effect of the evidence, allowing for the submissions made as to its admissibility. They were invited to put submissions in reply. No objection was taken at any time to the magistrate considering at the one time the evidence as tendered, its admissibility, and its effect. The course he followed is a not uncommon one. The magistrate in his final reasons dealt separately with objections based on hearsay, relevance, opinion evidence and the use of narrative form. He excluded what he understood to be hearsay evidence and that which he thought irrelevant.

In relation to ground (5) of the grounds I have set out, a major submission made on behalf of the applicants was that parts of the transmitted material, although duly authenticated, should not be accepted as evidence upon which the magistrate could base his conclusion, because they did not satisfy the rules of evidence applicable to court proceedings in New South Wales.

Section 26(1)(a) of the Act is as follows:
"26. (1) In a proceeding under this Act -
(a) a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is admissible as evidence of the matters stated in the testimony;"
Article XI(5) of the Treaty in part reads thus:
"(5) The warrant of arrest and deposition of other evidence, given under oath or affirmed, and the judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when -
(a) . . .
(b) in the case of a request by the United States of America - the warrant, if any, bears an original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or of the Department of Justice on behalf of the Attorney-General."

It is difficult to see how a document is admissible as evidence of the matters stated therein (s.26(1)(a)), or is to be admitted in evidence (Art. XI(5)), if a part or parts of it are at the same time not open to be considered. Put another way, there seems no justification for qualifying or limiting the ordinary meaning of "admissible". A particular statute may of course show that "admissible" is to be read in a qualified sense, but in my view there is not in the present Act, or Treaty, any such provision, or context. R. v. Governor of Pentonville Prison Ex Parte Kirby (1979) 1 W.L.R. 541 was a case under the Fugitive Offenders Act 1967 (Eng.), which contains a number of provisions quite dissimilar from those presently under consideration. Authenticated documents are under s.11 of that Act to be "admissible in evidence of the matters stated therein". Croom-Johnson J., with whom Lord Widgery C.J. and May J. agreed, said of the section (at p.544): "This section is dealing with procedure and method but not with admissibility". The compulsion to reach this conclusion apparently flowed from the fact that the proceedings were to be before a court, so described, which was to be constituted by a magistrate, and that proceedings were in general required to take place as they would before such a tribunal. Even so, what was said, and decided, seems inconsistent with the views expressed by Lord Diplock (with whom the other Law Lords agreed) in Fernandez v. Government of Singapore (1971) 1 W.L.R. 987, at p.992. That the words in the Extradition Act 1870, which our Act follows on this point, are to be given their ordinary meaning, as meaning admissible in evidence, to the point where they may without more be acted on, is apparent from what was said by Lord Diplock in his leading judgment in Dowse v. Governor of Pentonville Prison Ex Parte Passingham (1983) 2 W.L.R. 791, at p.796.

A further or alternative aspect of the argument on this ground involves the submission that the documents made admissible by s.26 are to be admitted subject to the application of the rules of evidence applicable to curial proceedings. This is doubtless a result which could be brought about by clear enactment, but there is no provision, or context, which has this result. It would not be sufficient to provide in the Act that the rules of evidence applied, unless there were added the hypothesis "as if the magistrate were sitting as a court of law". In the absence of a clear provision to this effect, it would not be at all certain if, or how, statutes dealing with evidence, or many of the common law rules, would apply.

The fundamental difficulty with the submission is that the magistrate hears and deals with the application before him in an administrative capacity. He is appointed, by name, as a person to exercise power under the Act (see s.24(1)). There is no reference to his constituting a court, nor is his decision subject to appeal as if he were. The reference to "evidence" is quite neutral. It is commonly used in relation to material to be presented to a tribunal; see, for example, the Administrative Appeals Tribunal Act 1975, and, indeed, the Judicial Review Act itself. The fact that a decision has to be reached on the question whether there is evidence which would justify trial, in this case in New South Wales, does not involve a conclusion that in reaching the decision, the tribunal has to apply rules of evidence as if it were sitting as a court to decide the matter. The fact is, of course, that decisions of that nature have commonly to be reached by Attorneys-General or by administrative officers, on the basis of the material they have. The circumstance that in some respects the tribunal has to act judicially (as in the observance of the rules of natural justice) does not alter the position. It has many times been held that hearsay can be admitted by tribunals in those circumstances (Wilson v. Esquimalt and Nanaimo Railway Co. (1922) 1 A.C. 202, at pp.212-213, and other cases cited by Professor Campbell, "Principles of Evidence and Administrative Tribunals", Well and Truly Tried, ed. Campbell and Waller (1982) at p.50, n.50).

Professor Wigmore deals at length with the topic of the application of the rules of evidence to administrative tribunals in secns. 4a to 4n of Chapter 1 of his work (see 3rd ed. (1940) at pp.25 et seq.). He refers to the rules as the "jury-trial rules", it being his view that they owe their origin to trial by jury. This view has been challenged, but it is not material to pursue the matter. At p.24 of the work cited (s.4) he deals expressly with extradition and says:
"Extradition. For the same reasons of principle, extradition proceedings are not governed in strictness by the jury-trial rules of Evidence. Moreover, here the additional reason obtains that the evidence is brought from outside the jurisdiction, and the procurement of evidence is thus likely to be hampered by the lack of power or practicability, as well as by the possible differences of law in another system."
At p.31 (s.4b), after quoting Maine at length, the learned author says:
"These sagacious observations of Sir Henry Maine may serve to warn us that any attempt to apply strictly the jury-trial rules of Evidence to an administrative tribunal acting without a jury is an historical anomaly, predestined to probable futility and failure."

These words have been cited with approval by Schwartz, Administrative Law (1976) at pp.334-335. To complete citation of American works, I refer to American Jurisprudence 2nd ed., vol. 31, s.58 (p.964), in a chapter dealing with Extradition, under the sub-heading "Evidence - admissibility":
"Strict rules of evidence are not applicable in international extradition proceedings. To be admissible on the issues involved in such proceedings, evidence need not meet the requirements generally observed in criminal, or in civil, trials. Accordingly, evidence which is ordinarily excluded under the hearsay rule may be admitted in extradition hearings."
In the 1982 supplement to this volume reference is made (at p.162) to the recent case of Escobedo v. United States (1980) 623 F 2d. 1098 where the Fifth Circuit Court of Appeals strongly confirms this position (at p.1103). In 31 Am. Jur. s.59 (p.965) under the sub-heading of "Sufficiency", the further observations are made:
"The statute regulating international extradition procedure provides that an alleged fugitive may be surrendered on requisition of a foreign government where the evidence is deemed sufficient by the examining magistrate to sustain the charge in the complaint. But it is not the function of the presiding judge or magistrate to determine whether the accused is guilty of the crime charged beyond a reasonable doubt; probable cause of guilt is all that need be established. Accordingly, statutory requirements are held to be satisfied if evidence is presented that would justify the apprehension and detention of the accused for trial had the crime been committed in the asylum state. Indeed, good faith to the demanding government is said to require the surrender of the accused if there are presented such reasonable grounds for supposition of guilt as to make it proper that the alleged fugitive be tried".

There is English authority on the matter. In re Counhave (1873) L.R. 8 Q.B. 410, a case under the Extradition Act of 1870, Blackburn J. said, in relation to one submission (p.416):
"We are, I believe, also all agreed that s.14 makes depositions properly authenticated evidence in proceedings under the Act, whether they are in the particular charge or not, and whether taken in the presence of the person charged or not. In most European states, I believe, it is not the practice to take the depositions in the presence of the accused; at all events, the law is indifferent in the matter. I would add that it is for the magistrate to give what weight he thinks proper to depositions so taken."
In R. v. Zossenheim (1920) T.L.R. 121, it was decided in England by a Divisional Court that the rules of evidence did not apply to the admissibility of what is set out in the transmitted documents. Halsbury's Laws of England 4th ed., vol. 18, p.93, n.7, after referring to authenticated depositions or statements taken in a foreign State, says: "These depositions ought to be most strictly scrutinised, but the magistrate is under no duty to determine whether they were taken in accordance with English rules of evidence";, and R. v. Zossenheim (supra.); and R. v. Bitterlin (1913) 48 L.Jo. 371 are cited. Section 9 of the Extradition Act, which I have already set out (cf. s.7 of the Fugitive Offenders Act 1967 (Eng.)), was not regarded as affecting this result. The principle of R v. Zossenheim (supra.) was relied upon by the New South Wales Court of Appeal in Ex Parte Bennett; re Cunningham (1966) 68 S.R.(N.S.W.) 15 in relation to some aspects of the evidence in an extradition case.

In the present case, there was no submission that the documents transmitted were not duly authenticated. The material documents were verified by oath. In these circumstances, it seems to me, it was the duty of the magistrate to receive them and to give their contents such weight as in the circumstances he saw fit. The magistrate did, however, apply or intend to apply, the rules of evidence. In his reasons for decision, he said that he had rejected the evidence which was inadmissible before a court as hearsay and the evidence which he thought was irrelevant. Rejection had been sought before him, as it has before me, of many passages expressed in indirect speech. The acceptability of evidence in this form is, however, a matter of discretion; there is no rule excluding it. Criticism was made of many passages in which conclusions were expressed, without the qualifications of the deponent being apparent, but the admissibility of such passages, or the weight to be given to them, depends very much on an examination of the evidence as a whole.

Counsel for the Commonwealth, as well as submitting that the rules of evidence did not apply, argued, in the alternative, for the acceptance of the findings of the magistrate on the basis of the application of those rules, as appropriate to a court. Having in mind that all activities alleged were in some measure joint and carried out with preconcert, he relied heavily on the rules making admissible against another or others the statements of one (Tripodi v. The Queen (1961) 104 C.L.R. 1). Reliance was placed upon the inferences to be drawn from repetitive acts, and Martin v. Osborne (1936) 55 C.L.R. 367 was referred to. The res gestae rule was also relied upon in relation to a number of activities. I doubt whether my conclusions would be very different if I sought to apply rules of evidence, but I have proceeded on the basis already discussed, representing as it does what I understand to be the law.

It has occurred to me that I should remit the whole matter to the magistrate, so that his conclusions could be reached on the basis of the slightly wider range of evidence my ruling makes admissible. However, the volume of additional material is not great, it does not favour the applicants, and some evaluation of evidence by a reviewing court is always necessary when the present ground of sufficiency is being considered. It therefore would seem futile, if not incorrect, to re-submit the matter to the magistrate for the purpose mentioned.

It was of course necessary for the evidentiary material to be examined closely by the magistrate, and for common sense notions of soundness and reliability to be applied. In this regard, some of the rules can be applied by analogy and some of the statutory provisions permitting admissibility in curial proceedings can also be borne in mind. Some of the material expressing what others, not being deponents, are said to have said, is plainly not to be given any weight, and is excluded by me as evidence the magistrate could rely on. Similarly, some of the conclusions expressed, which do not appear to be adequately based, are excluded.

Ground (5) of the grounds of appeal, as I have stated it, attacks the sufficiency of evidence, and requires consideration of each count in turn.

I should make some preliminary observations. It is not necessary that the request be accompanied by charges, formally prepared, but that has been done in the present case. Provided the substance of each count can be understood, there is no question of attacking it as a matter of pleading. There is a total of nineteen counts presented against Mr. Riley, and seventeen against Mr. Butler. I shall leave to last a consideration of the counts numbered 1, 2 and 38; those apply to both of the applicants. The counts are arranged in pairs, the first numerically in each pair charging importation of cannabis, hashish or marihuana (as the case may be), the second in each pair charging possession of the drugs with intention to distribute them. It is not sufficient to proceed to a point where findings adverse to an applicant on one or two counts are sustained, so that he may be extradited for them. It is necessary under the Treaty for "the decision on the request for extradition" to be communicated to the requesting State (Art. XVI(I)), and I take this to involve reference to each charge relied on. It is also relevant to the application of Art. XIV that the decision on each count be known. The final decisions on whether or not to extradite rest with the Attorney-General, but plainly it is intended that he be guided by the conclusions of the magistrate.

One matter of importance is that both the Act and the Treaty treat as extraditable offences any case of aiding, abetting, counselling or procuring, or being an accessary before or after the fact, to an offence of the nature specified. Similar provision is made in the substantive law operative in New South Wales (Crimes Act 1900 (N.S.W.) s.345; Crimes Act (Cth) 1914 s.5; Customs Act 1901 (Cth) s.236). Consideration of the relevant evidence relative to the various counts can proceed on this inclusive basis without attention to refinements of pleading.

In addition to the material transmitted, there was oral and affidavit evidence given before the magistrate. It was mostly of a formal nature, and contributed very little to the substantive case.
Mr. Riley COUNT 3
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime in or about November 2, 1981, at Edisto Island, within the District of South Carolina, the defendants ROBERT LESLIE RILEY, also known as Les, LEON DURWOOD HARVEY, WILLIAM PINCKNEY GREEN, III, CLEVELAND SANDERS, JAY HOFFMAN, and ROBERT BYERS, also known as Bob the Boss, did knowingly, intentionally and unlawfully cause to be imported into the United States, approximately 9,600 pounds of hashish, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960, Title 18, United States Code, Section 2."
The Commonwealth relies principally upon the affidavits of Mr. G. Abell (ex. 26) paras. 6, 7, and ex. B to that affidavit; Mr. W. McDonald (ex. 21) paras. 7-10; Mr. R. Zeman (ex. 34) paras. 9-10; Mr. D. McDonald (ex. 42); Mr. M. Bell (ex. 43); Mr. B.W. Toombs (ex. 22) para. 12; and Mr. F.M. Achurch (ex. 44). I say "principally" because that is the way counsel put it. There is a host of evidence which can, in relation to a particular count or counts, be classified as being of a relevantly background nature, and which can aid the drawing of inferences.

If the whole of the evidence is looked at, I think that it clearly appears therefrom that Riley, usually with associates, was engaged over a matter of years in smuggling marihuana or hashish into the United States of America, and that he or they employed a number of people for various parts of the activity, often the same people for the same purpose. There was an organisation, albeit a loose one. The evidence, however, tells us very little about the overseas suppliers, and virtually nothing of the method of distribution in the United States. It is also clear that Riley had a proprietorial interest in much or most of what was smuggled. The evidence about a particular importation has to be understood and assessed against this background.

The consignment referred to in the count was from Lebanon, and was organised in Greece, and was, so it is alleged, conveyed on the "Anonymous of Roc" to Edisto Island, South Carolina. It was intercepted by United States Customs before being finally unloaded.

There is in my view ample evidence upon which the learned magistrate could base his finding in relation to this count. The principal objection to the evidence, as it affects vital matters, is that some of the deponents state conclusions, or express themselves in summary form, but this is not in my view sufficient ground for me to hold that the magistrate could not take account of it. There was an argument, in relation to this and other counts, that the evidence did not show that the consignment came from outside the territorial limits of the United States of America, and therefore was not an "importation . . . from a place outside the United States", but I do not accept this submission. The particular consignment was within the jurisdiction at the time of the interception by the Customs authorities (see, for example, the affidavits of Mr. G. Abell, para. 7, and Mr. Bell, paras. 3-4).

The importation, if it occurred in Australia, would constitute an offence under s.233B(1)(b) of the Customs Act 1901.

Count 4 relates to the same consignment, but charges "possession with intent to distribute". In my view there is evidence that Mr. Riley, either directly or through his agent or agents, had possession for the purposes of supply, an offence under the Poisons Act 1966 (N.S.W.) s.21 (and see s.26). The argument went simply to the point of submitting that there was no "importation" or no "possession with intent to distribute" within the ordinary meaning of those words.

Count 7 is as follows:
"COUNT 7
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime in or about January 1979, at Conway, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, LEON DURWOOD HARVEY, OLIVER MAYFIELD, and KEN PIERCE did knowingly, intentionally and unlawfully cause to be imported into the United States, within the District of South Carolina, from a place outside the United States, approximately 28,000 pounds of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Sections 2."

It is a convenient way of indicating the general nature of much of the evidence in relation to the various counts, and the objections taken (so far as relevant to the evidence), to set out what is relied upon by the Commonwealth in relation to this count.

Affidavit of J.T. Pernell
"5. In or about June, 1977, my partner, Barry Toombs, and I entered into a partnership with Robert Leslie Riley and his partner, Leon Durwood Harvey. It was agreed that the two partnerships would each receive fifty percent (50%) of all profits made from smuggling ventures."
. . .
"9. The next venture occurred in or about January, 1979, and involved myself and my partner Barry Toombs, and Robert Leslie Riley and his partner Leon Durwood Harvey. Robert Leslie Riley and Leon Durwood Harvey had approximately 28,000 pounds of marihuana on Samana Cay, Bahamas. I agreed to have the marihuana brought into the United States aboard my boat, the Beach Queen. The load was brought into a location near Conway, South Carolina, and was loaded into eleven (11) vehicles and transported to Virginia where it was sold. Toombs and I received one half of the proceeds. We paid Robert Leslie Riley and Leon Durwood Harvey about 3.5 million dollars in Alexandria, Virginia. After expenses, all four of us made a profit of approximately one million dollars each."
Affidavit of B.W. Toombs
"9. In about December 1978, Lee Harvey and I met in Alexandria Virginia to organize a marihuana smuggling venture. Lee Harvey told me that Steve Ravenel had 30,000 pounds of Columbia marihuana on Samana Cay in the Bahamas. Lee Harvey offered me 30 percent of the marihuana if I would get it smuggled into the United States. I had a 72 foot snapper boat called the "Beach Queen" that I used for the venture. I put Billy Popwell on the boat as the captain. Popwell put three people unknown to me on the boat as crew. The boat left from Georgetown. South Carolina, went to Samana Cay, picked up 17,500 pounds of marihuana, and entered the United States on the Santee River in South Carolina in January 1979. I was at the off load site when the boat came in. At the site, I saw Jack Berg, a person known as Kenny who owns a bar in South Carolina, Kenny O'Day, Wayne Morris, Donnie Morris, Bernie Long, Sonny Herring, Larry Semones, Larry Pernell, Lee Harvey, and Julian Pernell. There were also two Columbians on the boat with a shotgun. We off loaded the marihuana into (5) pick-up trucks, one 18 foot van, and one 20 foot van. The 18 foot van went to Columbia, South Carolina to Jack Berg's house on the lake. The rest went to the state of Virginia. A net profit of 1,200,000.00 was made on this venture. I gave Lee Harvey $900,000.00 cash. Three hundred thousand was for expenses and $600,000.00 was profit. The profit on this deal was low because the marihuana was low grade."
Evidence before the Grand Jury of S.D. Ravenel
"O Prior to heading down to South America, had you discussed this matter with Lee Harvey?
A Yes, I had. I was dissatisfied with the deal that I could make with Clark, so I called up Lee, who I had known at the university and through other little dealings. And he said he could load the boat, but he wanted a bigger percentage.
So I wasn't happy with that deal, either. So the initial deal with Clark was the best deal, so that's the one I went with.
And we left to pursue that deal. But the boat got into trouble off the coast of South America. And we had to put into Cartagena.
Q What happened while you were in Cartagena?
A Well, we tried to repair the boat, but I was running out of money and the crew that I had on board was just a little disillusioned with the smuggling, so they both flew back home.
I was left down there with the boat and no money, so I came back to Miama and contacted Lee Harvey and said, 'Listen, I've got a big problem. Can you help me out?'
And he said he would. But he would have to have complete control of the deal. In other words, the boat and so forth.
So I flew back down to South America, waited for him to come down there. Which he did a few weeks or a month later with a crew.
Q All right. Who came with Lee Harvey to Cartagena?
A He was with Les Riley.
Q Was there anyone else there?
A He had his crew there.
Q Do you recall the names of the crew members?
A Well, I think Ashley. I don't know his last name. Christy Campbell, and there was another fellow - - Kenny -- Kenny somebody."
(at p.18-19 of transcript)
. . .
"Q And how had you obtained that money?
A I had received that as front money from Lee Harvey for payment of the load.
Q Had he delivered that to you in Cartagena?
A I believe he did. I believe he did. Brought it down to me.
Q Did you return to South America after the seizure of the boat?
A Yes, I did.
Q For what purpose?
A To procure another load. Because I was pretty much in the hold right now. The first trip busted, so I had to get another one together.
So I went down there and tried to convince the Colombians to send another load, but I didn't have a boat to put it on.
So they said they would ship it up to me.
Q Where did they agree to ship the marijuana for you?
A They said they would ship it to the out islands in the Bahamas, specifically the Samana (phoenetic spelling of pronunciation) Cay, in the Bahama Islands.
Q All right. Who were you dealing with in Colombia at that time?
A I guess I was probably dealing with Navarro, but Mr. Gomez and a whole group of other people; nobody specific. Just whatever farmers had the available merchandise."
(at pp.21-22 of transcript)
. . .
"So they took me up into the mountains one day and showed me a big -- what they call a colado, a big farm full of pot.
And that's how it all started.
Q I see. When the Colombians agreed to send the marijuana to Samana Cay for you, how (sic.) much did they agree to send up?
A Well, I think it started out to be a small load of about 10,000 pounds. But by the time the boat left, it was more like 30,000 on board.
Q What arrangements had you made regarding getting this marijuana from Samana Cay into the United States?
A I had contacted Lee Harvey, who was on the previous trip. And said, 'We have got to get another load in. I've got to get another load in. Can you give me a hand with another one?'
And he said he could. He said he would supply a vessel to come down to the islands and pick it up at Samana Cay. If I could get it up there, which he probably didn't believe would show up. But it showed up.
And in turn he had a boat that went down there and picked up the load.
Q Do you recall what boat he sent?
A The boat that -- the name that I know it by was the "African Queen".
Q Describe that boat.

A It was an 82-foot snapper boat. It was bought somewhere in South Carolina, I believe; maybe McClellanville or somewhere around there. I really don't know where. But, an old snapper boat.
Q What is a snapper boat?
A It's a longline boat. It's a boat that they -- it's not like a shrimper; it doesn't have nets or anything like that.
They use big reels, downriggers and stuff like that to bring in the fish.
Q Who was captaining that vessel?
A Popwell, I think his name was. William Popwell.
Q William Popwell?
A I believe.
Q Where was he from?
A Somewhere in South Carolina.
Q Who else was on board?
A He had about three other fellows on board. I don't know who they were.
Q Were you at Samana Cay when he arrived to pick up the marijuana?
A Yes.
Q And how much was loaded on the "African Queen"?
A We put all that was on the island. I think it was about 25,000 pounds.
Q And what happened -- was Lee Harvey there when it was loaded?
A No. He wasn't there when it was loaded, but he was on another island waiting. Or he wasn't actually out there, but he was with me prior to the actual loadup.
Q Tell me what happened to that load.
A Let's see. Well, it was put on the boat, the "African Queen." And it came in somewhere in South Carolina. McClellanville or some little seaport town.
I wasn't there when it came in, but later on I was told that 18,000 pounds had come in. So it was a big deficit from the original loadup that left Columbia.
So I immediately had a problem with the people since there were five or six thousand pounds short. But I was paid for -- I forget how much. I think I was paid for 18,000 pounds, which I in turn paid the Colombians. Which left me with a big -- you know, really -- without making any money on the deal and owing a good bit.
Q So you ended up owing the Columbians?
A Quite a bit, yeah. Probably about a half a million dollars or more. I forgot. In otherwords, it left me open. I had to do another deal at this point to recoup.
Q What was Harvey's explanation for why he was paying you for only 18,000 pounds?
A Well, it was loss of weight; some got wet, some got lost. It was really not a very good explanation. It just wasn't there.
Q How were you paid for this load?
A I was paid in installments.
Q Tell us about those, where you received those payments and in what form and what you did with the money.
A I received the initial payment, I think in Northern Virginia, somewhere around Alexandria.
Somewhere close to eight or nine hundred thousand dollars or maybe a little bit more or maybe a little bit less. And that was given to me by Lee or one of his brothers.
Q Do you recall actually receiving that payment?
A Yes.
Q And do you recall that the money was given to you by Lee Harvey and one of his brothers?
A Yes.
Q And was it in a suitcase?
A It was in two suitcases, I believe.
Q So you met them somewhere in Northern Virginia and they delivered two suitcases?
A They delivered two suitcases in a car which I took out and put in my car and then I went to the airport and flew to Miami with it. I didn't open the suitcases until I got to Miami just because there was no place to open them up.
Q When you arrived in Miami with the suitcases, you opened them?
A Yes.
Q And how much was in them?
A I think it was $860,000; somewhere around that bracket.
Q And what did you do with that money?
A I went and paid the Colombians with it.
Q Did you subsequently receive additional payments from Lee Harvey?
A Yes, I did. To the total amount of somewhere around -- well, I forget. It's two or three million dollars, I think, in total. Whatever 18,000 times the amount of, you know, what he was selling it for.
Q And all of this money that you received you took to the Colombians?
A I took to the Colombians because I owed them -- I owed them for 25,000 pounds and was only getting paid for 18,000.
So every dime that I got in had to go to them, because they were screaming at me, 'bring us all the money.' "Thinking that I really got -- they were convinced I got in 25,000 and I was just trying to cut them down.
So it was some bad blood there for awhile because they didn't believe me. They put on 25,000 in Colombia, and when it gets to the States, there's only 18,000.
Somebody got it.
Q Do you have any idea what Lee Harvey's and Les Riley's profit would have been on this deal?
A On that particular deal?
Q Yes.
A I would say seven figures; probably close to a million dollars.
Q All right. What happened after that deal?
A After that deal, I believe we did another one just like it using the same boat again, with about the same amount.
But to recoup the first loss. I'm a little vague on this one; but as I recall, that's what we did."
(at pp.23-28 of transcript)

The objections taken are set out in a helpful document prepared by Riley's counsel:
Affidavit of J.T. Pernell
"Para 5.
Inadmissible. Broad allegations of partnership, etc.
Para. 9. Inadmissible. Broad allegations. Does not say he saw the load brought in. Hearsay. The statement that money was paid to Riley is dependent on the above."
Affidavit of B.W. Toombs
"Para. 9 . . .
Inadmissible. Hearsay. Relies on what he was told and the observations of Harvey.
Testimony of Ravenel
"Does not establish link with Riley. The name of the boat is different. No assumption the same boat."

The following general comments, briefly expressed, were made by counsel about this evidence:
"General:
Material inadmissible.
No sufficient link with Riley, even if admissible.
No evidence of importation, or importation caused by Riley, or that it was the shipment alleged in the counts.
No evidence of possession by Riley with intent to distribute.
Insufficient identification of the material.
No jury would convict.
Note:
No reference to Mayfield and Pearce (sic.) (co-defendants)."

Undoubtedly much of this evidence, if taken in isolation, could not be admitted in its present form, at least over objection, at a trial of Mr. Riley. On the other hand, there is no reason to suppose that this count would be heard in isolation, and there is much other evidence which gives a context to what I have set out. The relationship between the various actors, and their respective means of knowledge, can then be better understood. There is, for example, the evidence of Mr. B.W. Toombs, before that which I have set out, which reads as follows (at p.3 of affidavit):
"9. (sic.) In April 1978, Julian Pernell, Lee Harvey and I met in Alexandria, Virginia to plan a marihuana smuggling venture. It was agreed that Lee Harvey and Les Riley would be responsible for the boat, crew, and off loading and Julian Pernell and I would be responsible for getting the boat loaded with marihuana in Columbia, South America. It was also agreed that Les Riley and Lee Harvey would get half of the marihuana and Julian Pernell and I would get the other half. . . . "
There is reference to a consignment earlier than the one the subject of the present charge, and then there is the evidence I have set out. It is plain enought that the vessel referred to by Ravenel as the "African Queen" is in fact the same as the "Beach Queen".

There was ample evidence to support this charge, i.e. in both the counterpart operative in New South Wales and in the terms in which it is made. An objection taken on a number of occasions was the qualification of particular deponents to swear that material was cannabis (or marihuana) or hashish. This may assume that knowledge is necessary of the precise substance (as distinct, for example, from knowledge that it was a prohibited import) (cf. R. v. Taaffe (1983) 1 W.L.R. 627), but there is no need for me to deal with this aspect. The evidence indicates that these materials have a distinctive smell, and there is always one deponent who was accustomed to handling them, or substances treated or recognised as such. In relation to counts 3 and 4, customs officers identified the material. In my view, the various objections on this ground should not be sustained.
Count 8

Having in mind the nature of the arrangements, there is in my view sufficient evidence to support a case of possession, and possession with the necessary intent.
Count 9

The count in this matter is as follows:
"COUNT 9
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime in or about February 1979, at Calibogue Cay, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., WARREN FRANK STEELE, also known as Willie Frank, ROBERT BAUER, also known as Willie the Hog, ASHLEY BRUNSON, ROBERT FORBES, and DAVID ALTON BERRY did knowingly, intentionally and unlawfully cause to be imported into the United States, within the District of South Carolina, from a place outside the United States, approximately 8,000 pounds of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."
I shall set out the principal evidence relied upon, which is as follows:
Affidavit of G.H. Strickland III
"6. In or about February 1979, Robert Leslie Riley asked me if I was interested in making some money. I told Riley I was and in about mid February, 1979, I met Riley at his house, 31 Dogwood Lane, Hilton Head Island, South Carolina, where Riley told me he wanted me to operate the radios on an upcoming smuggling venture. Riley further told me that I would be stationed in the woods with a VHF portable radio and that I was to report any suspicious activities. The next week Riley called me at my home on Hilton Head Island, South Carolina, and said we had work to do. Riley instructed me to come to his house, 31 Dogwood Lane, Hilton Head Island, South Carolina. I arrived at Riley's residence about 7:00 p.m. and observed Riley, Ashley Brunson and a person known to me as Brian putting radios into the back of a Ford pickup truck bearing Virginia license plates. I observed three (3) VHF portable radios and a scanner in the truck. I was taken in the truck to an area at the entrance of Caliboque Cay, Hilton Head Island, South Carolina. I was given a radio and instructed by Ashley Brunson to stay in the woods and report any suspicious activity. Shortly thereafter, I observed four or five heavy-duty Ford and Chevrolet pickup trucks with camper shells go by in the same direction that Brunson had travelled when he departed me. About two hours later. I heard 'Anchors Away' over the radio which was the all clear signal. A short time later, the same four or five pickup trucks that had previously come in went out. Brian then picked me up in the same pickup truck as before and dropped me off at my residence stating, 'Good work, everything went fine.' I smelled a strong oder of marijuana in the truck. I am familiar with the smell of marijuana and I have smoked marijuana on numerous occasions.
7. Within a week after the load of marijuana arrived, Robert Leslie Riley came to my residence, on his bicycle, and 'gave me $5,000.00 in cash for my services which was' in $5.00, $10.00, $20.00, $50.00 and $100.00 denominations. The money was in $1,000.00 bundles, wrapped with rubber bands. When giving me this money, Riley said that the boat had brought in about 6,000 to 8,000 pounds of marijuana. Riley instructed me not to put all of my money into a checking account at one time. Riley further told me that I had done a good job."
Affidavit of Mr. G. Abell
"5. My first involvement in any marijuana load smuggled into Hilton Head, South Carolina was in about the Spring of 1978. This was a load of about 8,000 pounds of Colombian marijuana. Willie Frank Steele was the boat captain and the load was loaded at the residence of Wallace E. Butler, Jr., at 6 Calibocue Cay, Hilton Head, South Carolina. Willie Frank Steele recruited me for the load before he went down to South America. I don't know who owned or financed this load."

This last-mentioned affidavit probably assists very little, if at all. The fact that Mr. Abell gives a contrary date could possibly weaken the case otherwise made, but this is a matter for the magistrate. In my view, what is set out by Mr. Strickland in his affidavit is sufficient to enable the magistrate to reach the conclusion he did. The three principal objections taken to the part of Mr. Strickland's affidavit in question are that there was insufficient evidence (a) that the substance was marihuana; (b) that there was an importation; and (c) that it was the shipment alleged in the count. In my view these objections should be rejected.
Count 10

This charge is also supported.
Count 11

This is as follows:
"COUNT 11
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime in or about March or April 1979, at Caligobue Cay, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, WARREN FRANK STEELE, also known as Willie Frank, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hog, ROBERT FORBES, DONALD BRUCE MacDOUGALL, THOMAS HARVEY, DAVID ALTON BERRY, and HARRY KENNETH FLOYD did knowingly, intentionally and unlawfully cause to be imported into the United States, within the District of South Carolina, from a place outside the United States, approximately 9,000 pounds of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."
The following evidence is relied upon.
Affidavit of J.H. Strickland III
"8. In or about March or April, 1979, Robert Leslie Riley called me again and asked if I would be available to work in a week or ten days. Riley told me he wanted me to be located in Wallace, (also known as Wally) Butler's house listening to the radio rather than out on the road. This was the first knowledge I had that Butler, whom I have known for a number of years, was involved. About a week later, a person known to me as Brian picked me up at my residence in the same 1979 blue coloured Ford pickup truck with a white camper. This truck was the same as used on the last venture. A person named Wayne McDonald was accompanying Brian at this time. Brian drove McDonald and me to Butler's house, 6 Calibogue Cay, Hilton Head Island, South Carolina, where we were met outside by Butler who took me inside the house and instructed me to set up the radios in his living room. Riley had put the VHF radios on channel D. I was to monitor the radio frequencies of the Beaufort County, South Carolina, Sheriff's Department, The South Carolina Wildlife Service, The South Carolina Highway Patrol, The United States Coast Guard, and the Sea Pines Security, Hilton Head Island, South Carolina. Butler instructed me not to say a word on the radios unless something happened. Butler then took a portable radio and went outside at approximately 8:00 p.m. or 9:00 p.m. Brian then entered Butler's back yard in the pickup truck, and was thereafter followed by three or four more pickup trucks. I recognized Ashley Brunson, Tom Harvey, brother of Lee Harvey; Brian; Bruce McDougal from Maine; and Roy Riley, brother of Robert Leslie Riley. There were about five other men unknown to me. Butler came into the house about 10:30 p.m. and said the boat had arrived. I stayed in the house and everyone else went outside. I heard tailgates of trucks being opened and could tell that something was being loaded into the trucks. This lasted for about 30 to 45 minutes. During loading, the drivers and loaders would come into the house and get water at which time I observed marijuana stalks and crushed marijuana leaves in their hair and on their clothing. I could also smell what I knew to be and recognized as marijuana as I have used marijuana before. One of the off-loaders said there was about 8,000 to 9,000 pounds of marijuana. A short time later Butler, who had been in and out of the house, told me to dismantle the radios and gave me his radio. Thereafter, the pickup trucks began leaving in approximately 15 minute intervals. I took the radios and got into the pickup truck with Brian. This pickup truck was heavily loaded with marijuana and I could smell the strong odor of marijuana. We stopped at the gate and picked up Wayne McDonald and I was taken to my residence where I arrived about 1:00 a.m.
9. The next day, I went to Robert Leslie Riley's residence at 31 Dogwood Lane, Hilton Head Island, South Carolina, where I met Riley who stated to me, 'Everything went well, you all did a fine job.' Several days later at Riley's residence, Riley paid the $5,000.00 cash for my services. The money was in $5.00, $10.00, $20.00, $50.00 and $100.00 denominations, with all of them being old bills.
. . .
18. On one occasion Robert Leslie Riley told me he paid Wallace Butler $100,000.00 for providing off-load sites for drug smuggling. After the load of marijuana came to Butler's house in April, 1979, I was at Riley's house when Butler came by. There was a brown paper sack full of money on a table in Riley's house at 31 Dogwood Lane, Hilton Head Island, South Carolina. I observed Butler take a package of $100.00 bills from the sack, flip through the bills, and comment that they were in consecutive order. Butler, thereafter, took the entire sack of money."
Affidavit of J. Jamison
"4. I first met Robert Leslie Riley, a/k/a 'Les' in 1978, in Hilton Head, South Carolina when I was introduced to him by Wallace Butler. In the summer of 1979, Butler asked me if I wanted to earn $5,000.00 for providing security on a shipment of marijuana. I agreed to participate and was under the impression that Butler was providing the off-load site, and also under the impression that the load of marijuana actually belonged to Les Riley. The night the load came in, Butler picked me up and took me to his house on Hilton Head, South Carolina. Butler gave me a hand held radio and directed me to a spot where I was to stand and provide security. Butler further advised that when I heard 'anchors away' over the radio, this would be the signal that the off-loading of the marijuana was complete. After a period of time, I heard 'anchors away' on the radio and returned to Butler's house. I could smell marijuana all around the area as it was a hot night. Butler said everything had gone okay. Soon thereafter, Butler drove me home in his car. About a week later Butler (sic.) came by my house and dropped off $5,000.00 cash."

The second of these affidavits does little to support the charge. I would not think it permissible for the magistrate to act on "impressions" of the deponent set out in para. 4. Strickland was remote from the unloading, and certainly had no direct knowledge of how much was unloaded. He nevertheless provides material from which inferences could be drawn that Riley (with Butler and others) was engaged in another smuggling operation, and that it related to marihuana. Whether the statement made by an "off-loader" that there were about 8,000 pounds of marihuana could be admitted under the New South Wales rules of evidence is debatable, but it seems to me that it is something which the magistrate could take into account in relating the evidence to the charge. The statement is inherently probable.

I am of the view that the magistrate did not err in law in this matter.
Count 12

Following what I have said about count 11, there is material to support the magistrate's finding in relation to this count.
Count 13

This is in the following terms:
"COUNT 13
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime in or about June 1979, at the Oyster Factory, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., and WARREN FRANK STEELE, also known as Willie Frank, did knowingly, intentionally and unlawfully cause to be imported into the United States within the District of South Carolina, from a place outside the United States, a large quantity of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."

What is principally relied upon here are paras. 10 and 11 of Strickland's affidavit. This evidence goes to show that a consignment of marihuana (apparently a large consignment) was received by boat during June 1979 at the Oyster Factory, that the deponent had a role as a radio operator, and that he was paid by Butler. I quote that part of the evidence which mentions Riley:
"10. In June, 1979, I met Robert Leslie Riley at his residence, 31 Dogwood Lane, Hilton Head Island, South Carolina, at which time Riley said he had a friend in the business who needed a radio operator and asked if I would like to work the radios for Willie Frank. Riley assured me it was okay as Willie Frank had been working for a long time and there was nothing to worry about. I agreed to work. About mid-June, 1979, Riley telephoned me and told me someone would pick me up at Mariner's Cove, Hilton Head Island, South Carolina, about 11:00 p.m., in Wallace Butler's car. I was late arriving at Mariner's Cove with Riley's radios and was later picked up by Willie Frank's girlfriend, whose name I do not know, in Butler's car, a green four door Buick. She drove me to the gate of the Oyster Factory near Hilton Head Island, South Carolina. . . . "
It is possible that when all the evidence is looked at it will be apparent that Butler was acting as agent for Riley in relation to this particular operation, but I have not been referred to any, and have not noted any. One is left, therefore, with the evidence to which I have referred. I do not think it satisfies the statutory test, and the warrant of commitment should not be based upon it.
Count 14

This charge fails with count 13.
Count 19

This is in these terms:
"COUNT 19
(21 USC ss 952(a) and 960)
(18 USC s 2)
IMPORTATION OF HASHISH
THE GRAND JURY FURTHER CHARGES:
Sometime in or about June 1980, at the Oyster Factory, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, ROY C. RILEY, ASHLEY BRUNSON, DONALD BRUCE MacDOUGALL, THOMAS HARVEY, MICHAEL LEE HARVEY, CHRISTOPHER WARD CAMPBELL, CATHY CHILDS, HARRY KENNETH FLOYD, and WILLIAM PINCKNEY GREENE, III, did knowingly, intentionally and unlawfully cause to be imported into the United States, within the District of South Carolina, from Lebanon, a place in the United States, approximately 30,000 pounds of hashish, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."

The evidence principally relied upon is, -
(a) Affidavit of G.H. Strickland III, paras. 16 and 17;
(b) Affidavit of J. Jamison, paras. 5 and 6;
(c) Affidavit of Wayne McDonald, para. 5;
(d) Affidavit of B.W. Toombs, para. 11;
(e) Affidavit of J.T. Pernell, para. 11; and
(f) Affidavits of T.M. Simmons and W. Baxter.

There is ample evidence to support the magistrate's finding in relation to this matter.
Count 20

This also is amply supported by evidence.
Count 23

This count is in the following terms:
"COUNT 23
(21 USC s 952(a) and 960)
(18 USC s 2)
IMPORTATION OF MARIJUANA
THE GRAND JURY FURTHER CHARGES:
Sometime during October 1980, at the Oyster Factory, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., WARREN FRANK STEELE, also known as Willie Frank, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hog, ASHLEY BRUNSON, ROBERT BYERS, also known as Bob the Boss, ROBERT FORBES, DONALD BRUCE MacDOUGALL, and THOMAS HARVEY, did knowingly, intentionally and unlawfully cause to be imported into the United States, approximately 7,000 pounds of marijuana, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."

The evidence relied upon is as follows:
(a) Affidavit of Wayne McDonald, para. 4 (he refers, however, to the importation being "about December 1980");
(b) Affidavit of R. Zeman, para. 7; and
(c) Affidavit of G.H. Strickland III, paras. 12-15 (he refers to the alleged offence as occurring "about the end of December 1979");
While there is evidence that Riley was associated with the importation of another load of marijuana, I am not able to relate it to the charge. Some confusion about the dates is not necessarily fatal, but it is necessary for the evidence to support what is in the count, in the sense that the connection must be apparent, notwithstanding an error in the statement of the date.

In my opinion this charge cannot be said to be supported by evidence, and the warrant should not be based upon it.
Count 24

This fails with count 23.
Count 25

This is as follows:
"COUNT 25
(21 USC s 952(a) and 960)
(18 USC s 2)
IMPORTATION OF HASHISH
THE GRAND JURY FURTHER CHARGES:
Sometime in or about October or November, 1981, at the Oyster Factory, Hilton Head Island, South Carolina, within the District of South Carolina, defendants ROBERT LESLIE RILEY, also known as Les, LEON DURWOOD HARVEY, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hog, ROBERT BYERS, also known as Bob the Boss, CHRISTOPHER WARD CAMPBELL, JOHN GHEDINI, JEFF O'REGAN, and THOMAS N. RHOAD, III, also known as Rolex, did knowingly, intentionally and unlawfully cause to be imported into the United States, within the District of South Carolina, from a place outside the United States, namely Lebanon, Middle East, approximately 20,000 pounds of hashish, a Schedule I controlled substance. Such acts are in violation of Title 21, United States Code, Sections 952(a) and 960; Title 18 United States Code, Section 2."

The evidence principally relied upon is as follows:
(a) The evidence relied upon in relation to counts 3 and 4; and
(b) Specifically, reliance is placed on the following -
(i) the affidavit of B.W. Toombs, para. 12
(ii) the affidavit of R.N. Clarke, the whole
(iii) Grand Jury testimony of S.D. Ravenel, pp.53-57 of transcript.
(iv) the affidavit of J.T. Pernell, paras. 5, 8-13 and 15.

The chain of evidence is rather tortous, but it supports a conclusion that a motor vessel called the "Caroline C" was one of the three vessels which brought to the United States part of the hashish for which Riley arranged when in Greece. The consignment comprised about 20,000-22,000 pounds, and was successfully unloaded in South Carolina. The second link with Riley is found in evidence of Toombs that the load (with others) belonged to Harvey and Riley. Toombs had had a long and intimate association with the drug-smuggling business over a period of years, - he admits (or claims) that he was involved with Pernell in fifty-two marijuana or hashish smuggling ventures in the years 1974 to 1981. He had in 1981 known Riley for five or six years and had smuggled in concert with him. In my view, the magistrate was entitled to take account of his evidence. He did not err in law in relation to this charge.
Count 26

The evidence connecting Riley with the alleged importation is in my view sufficient also to support this charge.

The counts numbered 27 to 37 inclusive charge currency and taxation offences, but no reliance was placed upon them in seeking a warrant of commitment.
Counts 1 and 2

Count 1 is as follows:
"COUNT 1
(21 USC s 963)
CONSPIRACY TO IMPORT MARIJUANA AND HASHISH
THE GRAND JURY CHARGES:
A. From in or about 1974, the exact date being unknown to the Grand Jury and continuously thereafter up to and including the date of this indictment, in the District of South Carolina, and divers other districts and within the jurisdiction of this indictment, the defendants, ROBERT LESLIE RILEY, also known as Les, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, WARREN FRANK STEELE, also known as Willie Frank, ROY C. RILEY, ROBERT BAUER, also known as Willie the Hog, ASHLEY BRUNSON, ROBERT BYERS, also known as Bob the Boss, ROBERT FORBES, DONALD BRUCE MacDOUGAL, THOMAS HARVEY, MICHAEL LEE HARVEY, JAY HOFFMAN, DAVID ALTON BERRY, CHRISTOPHER WARD CAMPBELL, CATHY CHILDS, HARRY KENNETH FLOYD, WILLIAM PINCKNEY GREEN, III, OLIVER MAYFIELD and KEN PIERCE, did unlawfully, knowingly and intentionally combine, conspire, confederate and agree together, with each other and with various other persons, both known and unknown to the Grand Jury, to commit the following offenses against the United States:
1. To knowingly, intentionally and unlawfully import into the United States, Schedule I non-narcotic controlled substances, namely marijuana and hashish in violation of Title 21, United States Code, Sections 952 and 960(a)(1).
. . . "

Part C of count 1 is entitled "MANNER AND MEANS". I set out para. 1:
"1. As part of the conspiracy, the defendants played different roles, took upon themselves different tasks and participated in the affairs of the conspiracy through various criminal acts. The roles assumed by these defendants were interchangeable at various times throughout the conspiracy. These defendants made themselves and their services available at various times throughout the conspiracy and would participate in selected smuggling ventures on an 'as needed' basis. Some of the roles which these defendants assumed and carried out are as follows:
a. Financier or owner
b. Organizer
c. Manager or supervisor
d. Captain of smuggling vessel
e. Crewmember
f. Off-Loader
g. Communications man
h. Security Guard or 'look-out'
i. Provider of off-load site
j. Distributor
k. Attorney
l. Currency courier".

There are also set out some fifty-one overt acts said to show the conspiracies charged in counts 1 and 2 (count 2 deals with possession of marihuana and hashish with intent to distribute).

It seems to me that conspiracy to commit an offence against the laws relating to narcotics is an extraditable crime (see item 35 in Schedule 1 of the Act and Art. II(4) of the Treaty). However, there is no evidence to support these particular charges. It is reasonably apparent from the "manner and means" specifications and the list of overt acts that what it is intended to do is to comprehend a series of conspiracies, between different people, at different times, for different purposes. There is no doubt that under our law the count would either be quashed or, if tried, would, unless greatly refined, produce a verdict of not guilty. Accepting as I do that the extradition scheme is to be construed and given effect to in a practical way, and in accordance with its purpose, especially because of the need to relate two systems of law of different content and operation, it still does not seem possible for the count in question to be given the effect apparently intended. In this case, it seems to me that it is for the United States to set out its conspiracy charge in a way that enables a decision to be made as to whether there is evidence to support it, or, should I say, its counterpart operative in New South Wales. Article VI of the Treaty says, so far as relevant, "the offence with which he is charged". The magistrate should not be expected to construct charges from the totality of the evidence. It may well be true, of course, that the specific charges in the counts already dealt with involved conspiracies, and that several of them were included in the one conspiracy, but that is not what is alleged.

I am therefore of the view that the charges in counts I and 2 do not support the warrant.
Count 38

This is as follows:
COUNT 38
(Title 21 USC s 848)
CONTINUING CRIMINAL ENTERPRISE
THE GRAND JURY FURTHER CHARGES:
Beginning in or about summer 1974, and continuing up to and including the date of this indictment, within the District of South Carolina and other districts, defendants ROBERT LESLIE RILEY, a/k/a Les, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE, also known as Willie Frank, unlawfully, intentionally, willfully and knowingly engaged in a continuing criminal enterprise in that, these four defendants did knowingly, willfully, intentionally, and unlawfully violate Title 21, United States Code, Sections 841(a)(1) and (b)(6), 846, 952(a) and 960. . . . . . , were part of a continuing series of violations of Subchapter I and II of the Comprehensive Drug Abuse Control Act of 1970, Title 21, United States Code . . . . . undertaken by defendants ROBERT LESLIE RILEY, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE in concert with at least five other persons with respect to whom defendants ROBERT LESLIE RILEY, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE each occupied a position of organizer, supervisor or manager and from which such continuing series of violations ROBERT LESLIE RILEY, WALLACE E. BUTLER, JR., LEON DURWOOD HARVEY, and WARREN FRANK STEELE obtained subtantial income and resources, all in violation of Title 21, United States Code, Section 848. . . ."
The ingredients of the crime known as "continuing criminal enterprise", a crime under s.848 of the United States Code, are explained in an affidavit of Mrs. Currie, Assistant United States Attorney for the District of Southern California. There is not a similar law operative in New South Wales.

The ingredients of the offence alleged against Riley as set out by Mrs. Currie are as follows:
"1. That Robert Leslie Riley committed the conspiracy offense charged in Counts 1 and 2, or the importation offense charged in any of Counts 3, 5, 7, 9, 11, 13, 19, 21, 23, and 25, or the offense of possession with intent to distribute charged in any of Counts 4, 6, 8, 10, 12, 14, 20, 22, 24, and 26, or any combination of these offenses, or any overt acts, or any substantive drug violations not charged in the Indictment but proved by evidence offered at trial.
2. That the violation of any of the offenses charged in the above named counts by the defendant Robert Leslie Riley are part of a continuing series of violations by him of the federal narcotics laws;
3. That the defendant Riley undertook to commit such a series of offenses in concert with five or more persons;
4. That the defendant Riley occupied the position of organizer or supervisor or any other position of management with respect to such five or more persons in said undertaking; and
5. That the defendant Riley obtained substantial income or resources from said continuing series of such violations."

It seem to me that count 38 does not constitute a crime upon which an extradition order can be based. Reliance was placed on paras. (2) and (3) of Art. II. The pattern of paras. (1), (2) and (3) of Art. II is that there is first a list of specific offences (para. (1)), that there is then provision for certain other offences made extraditable under Australian law (para. (2)), and then provision in general terms for offences against federal laws of the United States, of which offences under paras. (1) or (2) form a "substantial element". The reference in these paragraphs to "offences" correlates with the terms of Art. VI and Art. XI(3).

Section 4(1A) tests the relationship between the foreign offence and a local offence by reference to acts and omissions and their equivalent. This is doubtless more refined than referring to equivalent offences, but creates problems, not least when one seeks to apply a notion of equivalent acts or omissions. When a complex foreign offence is under consideration it is sufficient that an act or omission which it embraces, or its equivalent, constitutes a local scheduled offence. As expressed, these are, however, only conditions upon which the foreign offence becomes extraditable.

This scheme does not fit too readily the terms of s.17(6), which deals with proof. Given that the foreign offence has satisfied the tests of s.4(1A), and is therefore an extraditable crime, the substance of that crime is not, for relevant purposes, to be found by reference to those tests. On the contrary, the opening words of s.4(1A) show that the foreign offence remains the extraditable crime. It is that which comes before the magistrate, to be dealt with in accordance with the terms of s.17(6). Sub-paragraph (b)(i) of that sub-section does not state what "justify the trial" is to relate to. In most cases there is probably no problem. The acts or omissions charged will fairly obviously satisfy the test that if they had occurred locally they would constitute a crime, being a crime similar in description and content to that charged. If the foreign crime is complex and in total has no equivalent, the position is more obscure. There seem to be only two alternatives, namely the whole crime, or the selected element. I imagine it must be the former, but it is fortunately not necessary for me to pursue the matter to a conclusion because the matter for primary consideration is the Treaty.

It seems to me apparent that the paragraphs of Art. II are dealing with whole offences, and not segmented parts of them. The application of s.4(1A) does not, as I have said, lead to the part being an extraditable crime, or to use the language of para. (2), "an offence made extraditable under the extradition laws of Australia". If s.17(6), which deals with proof, led to the result that it was only necessary to prove the element which under s.4(1A) satisfied the condition by reason of which the offence became extraditable (in this case the importation or the possession already dealt with in the other counts), the language of both paragraphs (1) and (2) of Art. II of the Treaty, as well as that of Arts. VI and XI(3) would operate against that element being accepted as an extraditable offence under the Treaty. If, following s.4(1A) or s.17(6), or both, the whole United States offence were to be regarded, tentatively, as that which was extraditable under the laws of Australia (vide para. (2)), there would be the primary problem of lack of equivalence (see Art. VI).

In relation to para. (3), the offence here in question is of course an offence against a federal law of the United States. It may be assumed that an offence under paras. (1) or (2) forms a "substantial element" of it. If not, there is no crime extraditable under the Treaty. It is not the substantial element alone which has to be proved but the offence of which it forms part. The words of Art. VI will not accommodate a construction to different effect. Allowing for the fact that there are likely to be some difficulties in any event and that some flexibility must be allowed, the fact is that the subject offence is quite unknown in New South Wales and has no equivalent there. Article XI(3), which is more of a procedural nature, supports the principle in Art. VI.

I am of the opinion that count 38 does not constitute a crime, or offence upon which extradition can be based, and that the warrant should not therefore have issued in reliance on it so far as concerns Riley.
Mr. Butler

In a number of counts Butler has been charged with Riley. Counts 1, 2 and 38 are examples, and my conclusions in respect of these apply also to Butler. The first count now to be considered is count 9.

He is here charged together with Riley, and others, but it is necessary to consider the evidence against him. The offence alleged is one of importation committed in or about February 1979 at Calibogue Cay, Hilton Head Island, South Carolina, and is said to have involved about 8,000 pounds of marihuana.

The principal evidence relied upon is as follows:
(a) Affidavit of G.H. Strickland III, para. 4 (this and other affidavits are distinct from those presented in the case of Riley); and
(b) Affidavit of Mr. G. Abell, para. 4.
There is a major discrepancy in dates between Abell's affidavit (who refers to "the Spring of 1978") and the count. The affidavit of Strickland is of little or no assistance. It is submitted that there is a problem if the date or period given by Abell is correct. The evidence of Mrs. Currie is that there is a statutory period of limitation of five years to the date of the indictment. This was presented by the grand jury on 22 June 1983. If therefore the offence occured in "the spring of 1978", and that is taken to end in about May, it would have been statute barred. Article VII(1)(b) forbids extradition "when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State . . .". The learned magistrate did not in his reasons say anything about this problem, or as to his decision on the question of dates. The same problem does not exist in relation to the similar count against Riley, because Strickland's affidavit is fuller, and can be relied upon alone. I do not believe that any submission relative to a statute of limitations was made in connection with that count. I am of the view that, while an offence is doubtless disclosed in Abell's evidence, it cannot safely be said that it is the offence charged. I would be inclined to uphold the submission concerning the application of the Statute of Limitation, if the earlier date is applicable, but it is not necessary to say more on the matter. The count is not supported.

Count 10 is in respect of possession of, with intent to distribute, the same marihuana. The observations made in respect of count 9 also apply to this count.
Count 11

This charges importation of 9,000 pounds of marihuana in or about March or April 1979, at Calibogue Cay.

The evidence relied upon is:
(a) Affidavit of G.H. Strickland III, paras. 5, 10; and (b) Affidavit of J. Jamison, para. 3.

In my opinion this material supports the magistrate's finding.
Count 12

This charges possession with intent to distribute, and the evidence in my view is sufficient to support the magistrate's conclusion.
Count 13

This charges importation of a large quantity of marihuana at the Oyster Factory, Hilton Head Island, in or about June 1979.

The evidence relied upon is that in the affidavit of G.H. Strickland III, paras. 5 and 6.

This evidence supports the finding.
Count 14

This count is also supported.
Count 15

This charges importation of 7,000 pounds of marihuana at the residence of Butler, at Hilton Head Island, in or about March 1980.

The evidence principally relied upon is that in the affidavit of Mr. G. Abell, paras. 5 and 6.

This evidence, in my view, is sufficient, when taken with the body of other evidence concerning Butler's activities, his control over the property, and his involvement with smuggling. The allegation that the marihuana was unloaded at the residence of Butler seems inaccurate.
Count 16

I am not satisfied that the evidence is sufficient to base a decision that Butler had possession with intent to distribute. There is a doubt, which should be resolved in favour of the applicant. This count does not, therefore, support the warrant.
Count 17

This charges importation of approximately 7,000 pounds of marihuana at the Oyster Factory, Hilton Head Island, in or about the summer of 1980.

The evidence relied upon is:
(a) Affidavit of G. Abell, para. 6; and
(b) Affidavit of R. Zeman, para. 6.

In my view, the evidence supports the magistrate's finding.
Count 18

I am of the opinion that there is no evidence sufficient to found a finding of possession. The evidence does not therefore support the finding in this matter.
Count 19

This count charges importation of approximately 30,000 pounds of hashish at the Oyster Factory, Hilton Head Island, in or about June of 1980.

The evidence principally relied upon is as follows:
(a) Affidavit of J. Jamison, paras. 4 and 5;
(b) Affidavit of G.H. Strickland III, para. 8;
(c) Affidavit of W. MacDonald, paras. 5 and 6;
(d) Affidavit of T.M. Simmons, paras. 1-13; and
(e) Affidavit of W. Baxter, para. 1-16 and 22.

The last-mentioned deponent relates an occasion in January 1981 and it is not possible with any certainty to link it to the subject of the charge. The other affidavits, read in context, are sufficient to provide evidence upon which the magistrate could base his finding.
Count 20

This is supported by the evidence.
Count 23

This count charges importation of approximately 7,000 pounds of marihuana during October 1980, at the Oyster Factory, Hilton Head Island.

The evidence relied upon is the following:
(a) Affidavit of G. Abell, para. 8;
(b) Affidavit of R.Zeman, para. 8;
(c) Affidavit of W. MacDonald, para. 4; and
(d) Affidavit of G.H. Strickland III, para. 7.

The link between Butler and the offence charged is not obvious. There is the fact of his presence, and his ownership or control over the premises used. The affidavit of Strickland, in the paragraph mentioned, refers to an entirely different date (December 1979) and cannot be relied upon to support the charge. A similar observation applies to para. 4 of MacDonald's evidence. An operation closely involving Butler is disclosed.

Having in mind the volume of evidence showing the use made or permitted by Butler of the premises in question, his frequent presence with others who were more directly involved in the illegal importation, and his interest in what was being done, I think the inference is open that, at the least, Butler was aiding or abetting the importation in question. This is an offence under s.236 of the Customs Act (see also s.5 of the Crimes Act 1914), and is extraditable. The precise form of pleading is immaterial. I am not therefore in a position to say that there was not evidence upon which the magistrate could reach his conclusion.
Count 24

I do not think this count can be supported.

The applications as argued before me have been related to the decision to issue the warrants of commitment. There are in the documents filed challenges to earlier decisions, such as decisions to issue warrants of apprehension, but these have not been proceeded with. The warrant of commitment has not been before me, but from Form 5 in Schedule 2 to the Act, it appears that it should set out the crimes alleged against the fugitive. There is no place provided, or indicated, for showing which of those have been found to support the warrant. This may be thought to be misleading, but the matter is debatable, and I do not think I should make an order varying the prescribed form by requiring, in effect, the addition of information as to the result of the proceedings. The issue of the warrant still stands in any event.

My attention was drawn to the fact that Form 5 twice refers to the fugitive "showing cause". I do not think this phrase implies that the onus of proof is on the fugitive.

In relation to Riley, my conclusion is that the warrant is not supported by counts 1, 2, 13, 14, 23, 24 and 38.

In relation to Butler, my conclusion is that the warrant is not supported by counts 1, 2, 9, 10, 16, 18, 24 and 38.

I should therefore dismiss each application. In view of my findings, I direct the Commonwealth to bring in short minutes. These should be filed and served within eight (8) days, and any variations sought thereto should be filed and served within eight (8) days after service of the minutes. The matters will be relisted on a date to be fixed by the District Registrar, on application made by any party after the expiration of sixteen (16) days.

[1983] FCA 350

28 NOVEMBER 1983