Riley v The Commonwealth

[1985] HCA 82

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

ROBERT LESLIE RILEY v. COMMONWEALTH OF AUSTRALIA AND OTHERS; WALLACE EDWARD BUTLER v. COMMONWEALTH OF AUSTRALIA AND OTHERS

(1985) 159 CLR 1

18 December 1985

Extradition

Extradition—Continuing criminal enterprise—Whether extraditable crime—Principle of double criminality—Whether displaced—Extradition (Foreign States) Act 1966 (Cth), ss. 41(1A), 17(6)(b)—Extradition (United States of America) Regulations, reg. 3 and Sched.—Treaty on Extradition between Australia and the United States of America 1974.

Decisions

GIBBS C.J., WILSON, DAWSON JJ.: The questions for decision on these two appeals are whether the offence against the law of the United States of America known as continuing criminal enterprise is an "extradition crime" within the meaning of the Extradition (Foreign States) Act 1966 (Cth), as amended, ("the Act") and whether a person charged with such an offence is liable to extradition to the United States under the Act and the Treaty on Extradition between Australia and the United States of America ("the Treaty"), which came into force on 8 May 1976 and is set out in the schedule to the Extradition (United States of America) Regulations ("the regulations"). The provisions of the Act have been substantially amended by the Extradition (Foreign States) Amendment Act 1985 (Cth), but in this judgment they will be cited as they were at the material times, before that Act was passed. The offence of continuing criminal enterprise is created by s.848 of Title 21 of the United States Code and it appears that to prove that such an offence was committed in the present cases it is necessary to establish the following elements:

1. that the defendant violated certain provisions of the law, including those which make it an offence knowingly, intentionally and unlawfully to possess marijuana or hashish with intent to distribute it, or knowingly, intentionally and unlawfully to cause marijuana or hashish to be imported into the United States;

2. that such violation was part of a continuing series of violations by the defendant of the federal narcotics laws of the United States;

3. that such series of violations was undertaken by the defendant in concert with five or more persons;

4. that the defendant occupied the position of organizer or any other position of management with respect to such five or more persons in the said undertaking; and

5. that the defendant obtained substantial income or resources from the continuing series of violations.

2. Each of the appellants was charged on indictment in the United States with a number of offences against the law of the United States which involved the importation, possession and distribution of drugs. The charges in each case included a count of continuing criminal enterprise. The appellants were found to be in Australia and requests were made by the United States for their extradition. The procedure provided by the Act was followed and a magistrate in New South Wales, acting under s.17(6) of the Act, by warrants committed each appellant to prison to await the warrant of the Attorney-General for his surrender. Each of the appellants then applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended, to review the decision of the magistrate that the warrants should be issued. The matter came before Fox J. who held that the challenge to the issue of the warrants failed and dismissed the applications. However, he declared that the appellants were not liable to be surrendered to the United States in respect of a number of the alleged offences, including that of continuing criminal enterprise, and that the warrants were not supported by those offences. The significance of this declaration was that it established that continuing criminal enterprise was not an offence for which extradition was granted, with the result that under Art.XIV(2) of the Treaty, an appellant, if extradited to the United States, could not be tried there for the offence of continuing criminal enterprise unless he had left the territory of the United States after his extradition and voluntarily returned to it, or he had not left the territory of the United States within thirty days after being free to do so, or the Commonwealth of Australia had consented to his trial for that offence. From this decision in each case the Commonwealth appealed to the Full Court of the Federal Court, which allowed each appeal and varied the order of Fox J. by deleting the declarations with regard to the offence of continuing criminal enterprise and in certain other respects not now material. The appellants now appeal to this Court from that judgment whose effect, of course, is that in the United States they will be liable to be tried on the charge of continuing criminal enterprise, an offence which carries severe punishment.

3. It is not in contest that the combined effect of s.10(1) of the Act and reg.3 of the regulations is that the Act applies in relation to the United States subject, inter alia, to the Treaty. In other words, it would not be enough that the provisions of the Act by themselves authorized extradition to the United States in a particular case if the Treaty did not do so. It is first necessary to consider whether the Act authorizes an extradition in respect of an offence of continuing criminal enterprise. It is common ground that no person is liable to be arrested and surrendered to another state under the Act unless he is accused, or has been convicted, of an "extradition crime": see definition of "fugitive" in s.4(1) and s.12. Accordingly, the power of a magistrate to issue a warrant committing a person to prison to await the warrant of the Attorney-General for his surrender depends, amongst other things, upon the fulfilment of the following conditions which are set out in s.17(6):

"(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 ... "

The first question that falls for decision is therefore whether continuing criminal enterprise is an "extradition crime". That expression is defined in s.4(1A) as follows:

"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."

Schedule 1 of the Act contained a list of thirty-five offences, but for present purposes it is sufficient to mention one only, namely: "34. An offence against the law relating to dangerous drugs, narcotics or psychotropic substances". Continuing criminal enterprise is not an offence known to the law in New South Wales. However, as has been seen, it is an offence which is constituted by two or more acts. One of the alleged acts which with other acts constituted the offence in the circumstances of the present cases was that the appellant in each case knowingly, intentionally and unlawfully possessed marijuana or hashish with intent to distribute it; another of such alleged acts was that each appellant knowingly, intentionally and unlawfully caused marijuana or hashish to be imported into the United States. Clearly to cause something to be imported involves the commission of an act. Although in some cases it will be a question whether to be in possession of something is a state of things rather than an act, the Full Federal Court held that proof that a person knowingly and intentionally possessed a substance necessarily involves proof that the person actively maintained possession and that this indicates an act rather than a mere state of possession. Before us the appellants did not submit any argument to the contrary. The Federal Court further held that the importation into Australia of marijuana or hashish is an offence against the law relating to narcotics within the meaning of par.34 of Sched.1 of the Act (the relevant law being s.233B of the Customs Act 1901 (Cth), as amended) and that the possession of those substances with intent to distribute them is an offence against the law relating to dangerous substances (viz., s.21(1)(a) of the Poisons Act 1966 (N.S.W.), as amended). This also was not challenged in argument before us.

4. It follows that if the words of s.4(1A) are given their ordinary and natural meaning, continuing criminal enterprise is an extraditable crime. Some of the acts which, together with others, constituted that offence (or equivalent acts) would, if they had taken place in New South Wales, have constituted an offence against the law in force in that part of Australia, namely a law that is described in Sched.1. The reference in the sub-section to an "equivalent act or omission" is to an act or omission which would be the same as the act or omission which is an element of the offence against the law of the foreign state were it not for the fact that the law of the foreign state requires (whether or not for reasons of jurisdiction) that the act or omission should have occurred in or in relation to some place or thing in or connected with the foreign state. For example, the act of importing narcotics into Australia is an "equivalent act" to the act of importing narcotics into the United States.

5. Section 17(6)(b)(i) is in no way inconsistent with this view. That provision does not indicate that an extradition crime must be a crime according to the law of the state or territory in which a magistrate is exercising jurisdiction. Section 4(1A) alone defines what is an extradition crime; s.17(6)(b)(i) is purely evidentiary and its provisions do not provide any justification for departing from the ordinary and natural meaning of the words of s.4(1A). In the circumstances of the present cases s.17(6)(b)(i) made the power of the magistrate to issue the warrant depend on the fact that there had been produced before him such evidence as would in his opinion, according to the law in force in New South Wales, justify the trial of an accused person if the acts or omissions constituting the crime of continuing criminal enterprise had taken place in or within the jurisdiction of New South Wales and on the assumption that those acts or omissions would constitute a crime according to the law of New South Wales, whether or not in truth they would constitute a crime in New South Wales. The reference to "act or omission" in the provision must be read as including the plural.

6. For these reasons, continuing criminal enterprise was an extradition crime within the meaning of the Act. That however is not enough. Extradition for that crime to the United States may be granted only if the Treaty also authorizes it.

7. Article I of the Treaty provides as follows:

"Each Contracting Party agrees, under the

conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other Contracting Party, or outside that territory under the conditions specified in Article IV of this Treaty."

Article II(1) then commences 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."

Then follows a list of offences of which it is necessary to mention only one, viz., "28. An offence against the laws relating to narcotics, dangerous drugs or psychotropic substances". The critical provisions of the Treaty are those of pars.(2) and (3) of Art.II which read 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.

(3) Extradition shall also be granted for any

offence against a federal law of the United States of America of which one of the above-mentioned offences is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offence."

It is necessary also to consider the provisions of Art.VI which provides as follows:

"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."

Two other Articles require mention. Article XIV(1) provides as follows:

"(1) A person extradited under this Treaty may

be detained, tried or punished in the territory of the requesting State for any offence mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based."

Article XX provides as follows:

"This Treaty applies to offences mentioned in

Article II committed before, on or after the date on which this Treaty enters into force, provided that no extradition shall be granted for an offence committed before that date which was not an offence under the laws of both Contracting Parties at the time of its commission."

8. The provisions of Arts.I, II, XIV(1) and XX make it clear that extradition to the United States may be granted only for an offence mentioned in Art.II, viz., those mentioned in pars.(1), (2) and (3) respectively. It is common ground that continuing criminal enterprise is not an offence mentioned in par.(1) of Art.II. In the Federal Court, Fox J. and the members of the Full Court agreed that continuing criminal enterprise is not an offence of the kind mentioned in par.(2) but the Full Court, reversing Fox J., held that it is an offence of the kind mentioned in par.(3). With all respect, the view that par.(2) is not applicable to the present cases is not supported by an examination of the words of that paragraph. It is clear enough that the section is reciprocal in that it governs extradition from the United States to Australia and from Australia to the United States. In either case the paragraph poses two questions:

(1) was the offence for which extradition is sought an offence made extraditable under the extradition laws of Australia? and

(2) was it a felony under the laws of the United States?

It was held in the Federal Court that par.(2) applies only to whole offences and that is clearly correct, but it does not follow that continuing criminal enterprise is not an offence to which par.(2) refers. It is not in contest that continuing criminal enterprise is a felony under United States law. The question then is whether that offence is made extraditable under the extradition laws of Australia. For reasons already given that question must be answered in the affirmative. The offence is an extradition crime within s.4(1A) of the Act. The learned members of the Federal Court appear to have thought that because, under s.4(1A), an offence is an extradition crime if any of the acts or omissions by which it is constituted, or any equivalent act or omission, would constitute an offence if it occurred in New South Wales, the effect of the sub-section is that the single act or omission which is a component of the whole offence, rather than the whole offence itself, is an extradition crime. The provisions of s.4(1A) show that that is not so. The sub-section has the effect in the present cases that because at least one act which formed an element of the offence of continuing criminal enterprise, or an equivalent act, would have constituted an offence against a law described in Sched.1 if it had occurred in New South Wales, the offence itself is an extradition crime.

9. Paragraph (3) of Art.II, on the other hand, does not allow extradition to be based on an offence of continuing criminal enterprise. The fact that par.(3) is confined to offences against the federal law of the United States, together with the reference to transporting or transportation or the use of the mails or of interstate facilities, sufficiently shows that the intention of the paragraph was to ensure that it would be no obstacle to obtaining the extradition of a person accused of contravening a federal law of the United States that the offence had jurisdictional elements not likely to be found in offences against the laws of other countries. The provision is not aptly drafted and may have been inserted out of an abundance of caution, but it reflects a policy given effect also in a series of extradition treaties to which the United States is a party. In view of the conclusion which has been reached as to the effect of par.(2), it is unnecessary to discuss this matter further.

10. The appellants made three principal submissions in support of the view that par.(2) of Art.II does not apply to the offence of continuing criminal enterprise. First, it was said that to give par.(2) that effect would be to depart from the principle of double criminalty - a principle which writers on international law have described as accepted and basic: see Research in International Law Supplement to the A.J.I.L., vol.29 (1935), at p.81, which cites the Resolutions of Oxford adopted in 1880:

"As a rule it should be required that the acts to which extradition applies be punishable by the law of both countries, except in cases where by reason of particular institutions or of the geographical situation of the country of refuge the actual circumstances constituting the offence cannot exist."

In Oppenheim's International Law, 8th ed. (1955), vol.1, at p.701, it was said:

"And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition."

11. It is however clear that domestic statutes and international treaties may be framed in such a way as to require a person to be extradited for conduct which is an offence only in the requesting State. It is clear that so far as municipal law is concerned, the principle can have no effect other than as a possible guide to interpretation. It was held by the Supreme Court of the United States in Factor v. Laubenheimer (1933) 290 US 276 (78 Law Ed 315) that the nature and extent of the right to demand extradition and the duty to extradite depend on the terms of the treaty which creates the right and the duty rather than on the principles of international law: see at p.287 (p.320 of Law Ed.). Lord Diplock appears to have proceeded on the basis of a similar view in In re Nielsen (1984) AC 606, at pp 624-625. Section 4(1A) expressly excludes the principle of double criminality; that sub-section does not require that an offence which is an extradition crime should be an offence in Australia. In the Treaty, Art.II, par.(1) expressly requires double criminality and par.(5) of Art.II also refers to an offence "punishable under the laws of both Contracting Parties". By comparison, pars.(2) and (3) of Art.II do not contain a similar requirement, and the words of par.(2) strongly suggest that nothing more is required to warrant extradition than compliance with the two conditions expressly set out in the paragraph. The principle of construction expressed in the maxim expressio unius exclusio alterius supports the view that no requirement of double criminality should be implied. The provisions of Art.XX further support that view.

12. The second argument submitted for the appellants was that if par.(2) of Art.II is given a construction which would render it applicable to the present case, par.(3) would add nothing to par.(2) but would be merely surplusage. That is not so for two reasons. In the first place, par.(2) deals only with offences that are felonies under the laws of the United States; par.(3) can apply to offences that are not felonies. Secondly, par.(2) has the wide operation now ascribed to it only because of the width of s.4(1A) of the Act. The Treaty may of course remain in force although the Act is materially amended, and if extradition crimes were more narrowly defined by Australian law par.(3) of Art.II might then cover offences not within par.(2).

13. Finally it was said that Art.VI indicates that it was intended that an offence on which extradition is based should be an offence against the law of the part of Australia where the person whose extradition is requested is found. This argument resembles that advanced in relation to s.17(6)(b)(i). Article VI, like s.17(6)(b)(i), is an evidentiary provision. Very similar words were considered in Factor v. Laubenheimer, and the Supreme Court there held that those words dealt with procedure and proof and did not limit the offences for which extradition might be demanded to those made criminal by the laws of both countries: see at pp.290-293 (pp.322-324 of Law Ed.). The fact that similar words have continued to be used in treaties made by the United States since the time of that decision strengthens the view that it was intended that they should have the meaning which the Supreme Court attributed to them in that case. And the words of Art.VI show themselves that the provision does not define the duty to grant extradition, but deals only with matters of evidence.

14. For these reasons the offence of continuing criminal enterprise was an extraditable crime within the meaning of the Act, and it was an offence for which extradition was required to be granted by the Treaty.

15. The appeals must be dismissed.

BRENNAN J.: The elements specifically mentioned in par.3 of Art.II of the Treaty are jurisdictional elements which are frequently required to constitute federal offences under the laws of the United States. Those jurisdictional elements find no counterpart in the elements of offences created or recognized by the laws in force in the States and Territories of Australia. The paragraph is clearly intended to ensure that the existence of a jurisdictional element should not be an obstacle to the extradition of a person charged with an offence containing that element being an offence against a federal law of the United States. Any obstacle is removed by the words commencing with "even if". The words "even if" may be equated in this context with the words "whether or not" and introduce a provision which has work to do only if the existence of the jurisdictional elements would or might otherwise be thought to present an obstacle to the granting of extradition. But the words commencing with "even if" neither exhaust nor control the meaning and operation of the preceding words of par.3.

2. The paragraph is introduced by the words "Extradition shall also be granted for", a formula which is to be found in each of pars.2, 3 and 4. The plain meaning of those words is that in addition to the extradition to be granted for offences described in par.1, extradition shall be granted for offences of the several categories described in pars.2, 3 and 4. Thus par.5 is able to speak of requests for extradition "for any offence mentioned in a preceding paragraph". The offence of continuing criminal enterprise is "an offence against a federal law of the United States of America" and "a substantial element" of it is "one of the above-mentioned offences", that is, an offence mentioned in par.1 being "(a)n offence against the laws relating to narcotics, dangerous drugs or psychotropic substances". Continuing criminal enterprise is therefore an offence falling within par.3. The Full Court of the Federal Court of Australia were right so to hold. For this reason, as well as for the reasons stated by the Chief Justice, Wilson and Dawson JJ., I would dismiss the appeals. I should add that whether or not the terms of s.4(1A) are consistent with a true understanding of the principle of double criminality, that provision makes continuing criminal enterprise an extraditable offence.

DEANE J: In these appeals, I have come to the conclusion that the offence of "continuing criminal enterprise", which each appellant is alleged to have committed in the United States of America, is an "extradition crime" within the meaning of the Extradition (Foreign States) Act 1966 (Cth) ("the Act"). I have also come to the conclusion that that alleged offence is, as a consequence, an offence "made extraditable under the extradition laws of Australia" within Art.II(2) of the 1976 Treaty on Extradition between Australia and the United States of America ("the Treaty"). Subject to what is said below, I agree with the reasons given in the joint judgment of Gibbs C.J., Wilson and Dawson JJ. for those conclusions. It follows that I also agree that both appeals should be dismissed. I find it unnecessary to decide whether the offence of "continuing criminal enterprise" is also an offence of the type referred to in Art.II(3) of the Treaty.

2. There are two matters in respect of which I wish to make my own comments. The first is the "principle" of double criminality. The second is the construction of s.17(6)(b)(i) of the Act. Unless otherwise indicated, references to the provisions of the Act are to the form in which they appeared at the relevant time which, it is common ground, is prior to the 1985 amendments.

DOUBLE CRIMINALITY

3. International law recognizes no inherent right of a state to require that another state deliver to its custody a person whom it alleges to be guilty of a criminal offence against its laws. Any right to require the extradition of such a person must be based upon the dual foundation of an applicable extradition treaty and the primary principle of all international law that pacta sunt servanda. Where an extradition treaty exists between states, the existence and content of any right to require, or any obligation to grant, extradition will fall to be determined by reference to the treaty's terms. Even when another state is entitled to require extradition of a person under the provisions of an extradition treaty to which this country is a party however, neither the Executive Government nor any member of it has any automatic right to detain or deliver up that person otherwise than pursuant to the mandate of some Act of the Parliament. Without such a mandate, any pretension of the Executive to a right to deprive a person of his or her liberty in pursuance of some obligation under international law will be unavailing against the writ of habeas corpus.

4. The provisions of an extradition treaty fall to be construed by reference to the somewhat amorphous rules of international law which are commonly classified as the "law of treaties". Under those rules, a treaty must be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Vienna Convention on the Law of Treaties, Article 31; cf. In re Arton (No. 2) (1896) 1 QB 509, at p 517; and see generally, on construction of treaties, O'Connell, International Law, 2nd ed. (1970), vol.1, pp 251ff. and the learned writings which Professor O'Connell mentioned in n.37 on pp.251-252). Treaties dealing with a specific subject, such as extradition, must also be construed in the light of any particular principles of international law and of any particular standards accepted by the member states of the international community in relation to that subject. Thus, for example, it is a well-recognized standard of the international community, though not binding as a rule of international law, that extradition - with its attendant deprivation of liberty and disruption of lives - should only be requested or granted in cases where the alleged offence is a serious one (see, e.g., Shapiro v. Ferrandina (1973) 478 F 2d 894, at pp 906-907, n.12 and O'Connell, op. cit., vol.2, at p 722).

5. The present appellants rely upon what has been commonly called the "principle" of double criminality in propounding a restrictive construction of the provisions of both the Treaty and the Act. That principle is not a mandatory rule of international law in that it is not a breach of international law if a state fails to observe it either by becoming a party to an extradition treaty which negates it or in requesting or granting extradition in contravention of it. As Professor Manley O. Hudson noted ("The Factor Case and Double Criminality in Extradition", American Journal of International Law, vol.28 (1934), 274, at pp.285-286), the principle of double criminality "does not constitute a restrictive limitation on the power of states, and two states are competent to depart from it in entering into arrangements for extradition. A treaty may provide for the surrender of a person charged with an act which is made criminal only by the law of the requesting state; it might even provide for the surrender if the act is made criminal only by the law of the requested state, though this would be very peculiar, indeed." Nor does international law demand that the principle of double criminality be observed by domestic tribunals in applying the provisions of an extradition treaty which do not incorporate it. The principle "may be laid down in domestic extradition law and may on that account be binding upon the courts, or it may be expressly stipulated in extradition treaties, but no international rule prevents municipal tribunals from ignoring it in cases where neither the national law nor a treaty prescribes its observance" (see Professor Verzijl, International Law in Historical Perspective, (1972) vol.5, pp.336-337).

6. On the other hand, double criminality, although not binding as a mandatory rule under international law, has long been recognized as an accepted principle which is customarily observed by states in making and applying arrangements for the extradition of alleged offenders (see, e.g., Hudson, op. cit., at pp.283-285; "Research in International Law", Supplement to American Journal of International Law, vol. 29, (1935) pp.81-82). As such, the principle of double criminality constitutes an important part of the matrix of rules of international law and of internationally accepted standards against which the provisions of an extradition treaty must be construed. The terms of the Treaty which are in issue in the present appeals must be interpreted in the light of that principle (cf. Hudson, op. cit., at pp.285-286). A national court will accordingly be conscious of the requirements of the principle in a case, such as the present, where it is called upon to construe the terms of an extradition treaty. In a case of ambiguity, the strong assumption of observance of the principle will ordinarily outweigh the more general rule requiring that the terms of a treaty be liberally construed. The other respect in which the principle against double criminality is likely to become relevant for the purposes of the municipal law of this country is as a guide, in a case of ambiguity, to the legislative intent to be discerned in statutory provisions dealing with extradition.

7. Notwithstanding widespread acceptance of the principle of double criminality as a general standard to be observed in international relations, the precise content of the principle remains unsettled. Its essential utility is to provide an available safety mechanism whereby a state is not required to surrender a person, possibly one of its own nationals, to be tried and punished for conduct which, according to the standards accepted by those within its boundaries, is not deserving of punishment at all (see Shearer, Extradition in International Law, (1971), pp.137-138). As a generally accepted limitation of obligations under extradition treaties, it avoids the international complications and ill-will which are likely to result from an ad hoc refusal of extradition based on the unacceptability to the requested state of particular laws of a requesting state. The utility of the principle of double criminality is, however, likely to be outweighed by the impediment which it represents to the advancement of criminal justice if its content is defined in over-technical terms which would preclude extradition by reason of technical differences between legal systems notwithstanding that the acts alleged against the accused involve serious criminality under the law of both requesting and requested states.

8. One can find in the writings of some publicists and in some judgments of international and domestic courts support for the view that the principle of double criminality requires correspondence or substantial correspondence between an entire offence under the law of the requesting state, being an alleged offence for which extradition is sought, and an entire offence under the law of the requested state. This approach is likely to result in primary emphasis being placed upon labels and correspondence of legal elements. If unqualified, it would significantly and arbitrarily frustrate the effectiveness of extradition arrangements between states with dissimilar systems of criminal law. The preferable view - and that which commands general acceptance - rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and requested states and defines the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements (O'Connell, op. cit., vol.2, at p.723). This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than upon general theoretical correspondence between the legal elements of the offence which he is alleged to have committed against the law of the requesting state and some offence recognized by the law of the requested state.

9. One of the most authoritative general statements of the preferable view of the requirement of double criminality remains that contained in the resolutions adopted by the Institut de Droit International at its 1880 Oxford meeting: "As a rule it should be required that the acts to which extradition applies be punishable by the law of both countries, except in cases where by reason of particular institutions or of the geographical situation of the country of refuge the actual circumstances constituting the offense cannot exist" (underlining added). Of comparable importance for this country is the provision of Art.10 of the London Scheme of 1966: "The return of a fugitive offender will either be precluded by law or be subject to refusal by law ... if the facts on which the request for his return is grounded do not constitute an offence under the law of the country or territory in which he is found" (underlining again added; quoted in Ryan, International Law in Australia, 2nd ed. (1984), p.199). It has been suggested that the requirement of double criminality will be satisfied whenever the acts alleged in the extradition request would involve the commission of a criminal offence in both the requesting state and the requested state (see, e.g., Levy, "Double Criminality and the U.S.-U.K. Extradition Treaty", Brooklyn Journal of International Law, vol.VII:2 (1982), 475, at pp.482-483). That suggestion would, however, unduly discount the content of the requirement of double criminality if it would permit extradition in a case where conviction under the law of the requesting state was possible upon proof of some only of the acts alleged in the warrant. The principle of double criminality is satisfied where, and only where, any alleged offence against the law of the requesting state in respect of which extradition is granted would necessarily involve a criminal offence against the law of the requested state if the acts constituting it had been done in that state. As O Dalaigh C.J. of the Irish Supreme Court commented in The State (Furlong) v. Kelly (1971) IR 132 (a case in which England was the requesting state and Ireland was the requested state):

"The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the (requested) State ... If the English offence consists of, say four essential elements a+b+c+d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a+b+c+d+e), then there is no corresponding Irish offence ... for the simple reason that, ex hypothesi, conduct a+b+c+d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law" (at p.141, underlining added).

That clear formulation of the content of the requirement of double criminality in the case of a composite crime has been subjected to some criticism on the ground that it unduly restricts the circumstances in which extradition should be granted. It is, in some respects, more demanding than the approach adopted in the passage from the judgment of Griffiths J. in Reg. v. Governor of Pentonville Prison; Ex parte Budlong (1980) 1 WLR 1110, at pp 1122-1123 which was cited by Lord Diplock in In re Nielsen (1984) AC 606, at p 624 and would seem to have been seen as over-restrictive by the Irish Supreme Court itself in Hanlon v. Fleming (1981) IR 489 (see J.A. Coutts, "Double Criminality", Journal of Criminal Law, vol.48 (1984), 93). It is not, however, open to valid criticism on the ground that it understates the requirement of double criminality since it effectively precludes extradition except in a case where conviction of the alleged offence against the law of the requested state would necessarily involve proof of some act or acts which would be criminal under the law of the requested state.

10. Once the content of double criminality is appreciated, it is apparent that the provisions of s.4(1A) of the Act did not exclude it. To the contrary, the effect of s.4(1A), in the form here relevant, was to give statutory effect to the requirement for the purposes of the Act. Ignoring the references to "equivalent" acts and omissions which are not here in point, the primary provision of s.4(1A) of the Act (which corresponds with the definition of "extradition crime" in the original 1966 Act) incorporated the requirement of double criminality in the case of a simple offence: "the act or omission constituting the offence ... 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 primary provision was introduced in conformity with Art.10 of the London Scheme of 1966 (see Ryan, op. cit., at pp.199-200). The notion of double criminality which it embodied went further than that customarily recognized in international relations in that it, at least arguably, precluded extradition for a composite offence unless there was strict correspondence of the elements of the alleged offence with some identified offence under Australian law. Section 4(1A), which was introduced in 1973 (Act No.171 of 1973), modified that over-restrictive statutory requirement by making special provision in relation to composite crimes such as "continuing criminal enterprise". That modification did not, however, involve any departure from the established principle of double criminality under international law. Indeed, it may well have been modelled upon the statement of the content of that principle contained in the extract from the judgment of O Dalaigh C.J. in The State (Furlong) v. Kelly which is set out above. Its effect was that, under s.4(1A), a composite offence is not an "extraditable crime" unless any one or more of its elements "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".

11. The result is that extradition pursuant to the relevant provisions of the Act is precluded except in a case where the acts or omissions alleged to constitute each extradition crime necessarily involve a criminal offence against the law of this country. The same comment can be made in relation to Art.II(2) of the Treaty since that clause relates only to an offence that is "made extraditable under the extradition laws of Australia": i.e., where extradition to a non-Commonwealth country is involved, to an offence which is an "extradition crime" under the Act. That being so, neither s.4(1A) of the Act nor Art.II(2) of the Treaty, even when construed in the manner in which the Chief Justice, Wilson and Dawson JJ. construe them in the joint judgment with which I have expressed my general agreement, fails to recognize or observe the principle of double criminality. Nor does the extradition of each of the present appellants to face the charge of "continuing criminal enterprise" in the United States of America involve any contravention of that principle.

S.17(6)(b)(i)

12. It should be acknowledged that provisions of the kind found in s.17(6)(b)(i) of the Act may, in some contexts, have the effect of introducing a distinct or additional requirement of local criminality (cf. Biron and Chalmers, Extradition, (1903), pp.48-49; Digest of International Law - Department of State (U.S.) Publication 8350 (Whiteman), vol. 6, p.774). They do not, however, have that effect here. Section 4(1A) carefully defines the extent to which the requirement of double criminality is accepted for the purposes of the Act. In the context of the provisions of s.4(1A), s.17(6)(b)(i) must be construed in the manner in which it is construed in the joint judgment of the Chief Justice, Wilson and Dawson JJ., namely, as a purely evidentiary provision.

Orders

Appeal dismissed with costs