Todhunter v Attorney-General (Cth)

No judgment structure available for this case.

JONATHAN ANTHONY TODHUNTER v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
AND DEREK PRICE
No. NG228 of 1993
FED No. 548/94
Number of pages - 33
Extradition - Constitutional Law - Appeal And New Trial
(1994) 124 ALR 442

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SPENDER J

CATCHWORDS

Extradition - extradition to foreign states - requirement that a person be set 'at liberty' upon expiry of 45 days from date of assent - effect of failure to set extraditee at liberty within required period - whether person is 'at liberty' while remaining subject to bail conditions - whether failure to set 'at liberty' makes extradition proceedings a nullity.
Extradition - extradition to foreign states - material in support of extradition request - meaning of requirement that documents 'accompany' an extradition request - whether 'accompany' has a temporal connotation - limit to extent of such a temporal connotation.
Extradition - extradition to foreign states - nature of bar on extradition when offences are statute barred in foreign state - evidence as to suspension of statute bar.
Extradition - requirement that extradition request be supported by a description of facts setting forth reasonable grounds for believing an offence has been committed and that the extraditee committed it - whether hearsay can be considered - whether evidentiary material must relate to an offence/s or to the offence/s for which extradition is sought.
Constitutional Law - constitutional validity of denial of right of extraditee to adduce evidence that the extraditee has not engaged in conduct constituting the extradition offence.
Appeal And New Trial - admission of fresh evidence - whether, when court is to consider only material before a lower court, new material may be admitted on a basis of deception of lower court.

Extradition Act 1988 ss. 11(1)(a), 19(3)(c)(ii), 19(5), 21(1)(a), 21(6)
Constitution, The ss. 51(19), 51(20), 51(29)
Extradition (United States of America) Regulations 1988-1992 Schedule 1, Articles XI, XII, XIII; Schedule 2, Articles 7, 8, 9, 16

Winkler v. Director of Public Prosecutions (unreported judgment of Davies J, 16 June 1989, Sydney)
Winkler v. Director of Public Prosecutions (1990) 94 ALR 361
R. v. Hartley (1978) 2 NZLR 199
R. v. Bow Street Magistrate; ex parte Mackeson (1981) 75 Cr App R 24
Trimbole v. Governor of Mountjoy Prison (1985) IR 550
Bunning v. Cross (1978) 141 CLR 54
R. v. Beldan 21 A Crim R 159
Nationwide News Pty Ltd v. Wills (1992-1993) 177 CLR 1
Davis v. The Commonwealth (1988) 166 CLR 79
Australian Capital Television Pty Ltd v. The Commonwealth (1992-1993) 177 CLR 106

HEARING

SYDNEY, 30 August 1993, 1 and 20 September 1993
#DATE 1:8:1994

Counsel for the applicant: Mr C. Porter QC and

Mr P. Byrne

instructed by: Greg Walsh and Co.

Counsel for the respondent: Mr P. Roberts

instructed by: Commonwealth Director for

Public Prosecutions

ORDER

THE COURT ORDERS that:
1. The order of Mr Derek Price, Magistrate, made at the St James

Local Court at Sydney on 16 April 1993, whereby he determined pursuant to ss. 19(9) of the Extradition Act 1988 that Jonathan Anthony Todhunter is eligible for surrender to the United States of America in relation to the extradition offences of twenty-three offences contrary to Title 18, United States Code, Sections 2314 and 2 be quashed.

2. That the second respondent order the release of the applicant

in respect of those twenty-three offences.

3. The order of the Magistrate, Mr Derek Price, at the St James

Local Court at Sydney made on 16 April 1993, whereby he determined pursuant to ss. 19(9) of the Extradition Act 1988 that Jonathan Anthony Todhunter is eligible for surrender to the United States of America in relation to the extradition offences, being a conspiracy alleged in count 85 (being an offence contrary to Title 18, United States Code, Section 371 and 2314) and a conspiracy alleged in count 109 (being an offence contrary to Title 18, United States Code, Section 371) be confirmed.

4. The costs of proceedings No. G228 of 1993 be reserved. 5. The applicant have leave to file a notice of appeal in

respect of the orders 1, 2 and 3 herein.

6. That orders 1, 2 and 3 herein be stayed until the

determination of that appeal, or earlier order.

7. The applicant be released on bail on the following

conditions:

(a) the applicant enter into a recognizance in the form of the amended draft attachment to these orders and initialled by me, and to appear in this Court on each day upon which his appeal is listed for hearing until the hearing thereof is concluded or until further order,

(b) the applicant surrender his passport (British passport #C192321D) to the Court until further order, and

(c) the applicant remain away from all places, including airports from which aircraft or ships depart Australia for overseas.

8. The Court further orders that the bail on which Mr Todhunter

is released pursuant to order No. 7 herein be revoked unless the applicant's brother, Timothy Lempriere Todhunter, enter into a recognizance by 4 pm on August 3, 1994 at the Victorian Registry of the Court in the sum of $150,000 secured over the property situated at 32 May Street, Kew, Victoria being property situated on land comprising in Certificate of Title Volume 2168 Folio 412 requiring the said Timothy Lempriere Todhunter to forfeit to the Crown the sum of $150,000 in the event that the applicant does not appear as required by order No. 7 of these orders.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

Federal Court Rules.

JUDGE1

SPENDER J This is an application under s. 21(1)(a) of the Extradition Act 1988 ('the Act') seeking review of a decision of Mr Derek Price, a Magistrate at the St James Local Court, Sydney, made on 16 April 1993, whereby he determined pursuant to ss. 19(9) of the Act that Jonathan Anthony Todhunter is eligible for surrender to the United States of America in relation to the extradition offences of:

(i) one offence contrary to TITLE 18, UNITED STATES CODE, Sections 371 and 2314;

(ii) twenty three offences contrary to TITLE 18, UNITED STATES CODE, Sections 2314 and 2;

(iii) one offence contrary to TITLE 18, UNITED STATES CODE, Section 371.

The first offence referred to was set out by the Magistrate in the following terms:

" Beginning at a date unknown and continuing up to the including June 25, 1985, within the Southern District of California and elsewhere, defendants STEPHEN WILLIAM BISCHEL and JONATHAN ANTHONY TODHUNTER did wilfully, unlawfully and knowingly combine, conspire, confederate and agree together and with each other, and with divers other persons known and unknown to the grand jury, to commit offences against the United States, to wit, to knowingly transport and cause to be transported money of a value of $5,000 or more, in interstate and foreign commerce, which money had been taken by fraud in violation of Title 18, United States Code, Section 2314.

It was a part of the said conspiracy that the defendants would transport and cause to be transported in interstate and foreign commerce from San Diego, California, within the Southern District of California, to London, England, and elsewhere money knowing the same to have been stolen, converted and taken by fraud. "

There were then set out twelve overt acts.

The Magistrate also set out twenty-three offences contrary to Title 18 USC Section 2314 and 2, the first of which is set out by way of example:

" On or about November 19, 1984, within the Southern District of California, and elsewhere, defendants STEPHEN WILLIAM BISCHEL and JONATHAN ANTHONY TODHUNTER transported, and caused to be transported, in interstate and foreign commerce, by means of wire transfer, money in the approximate sum of $130,975, from Forum Trust, London, England, to Western America Finance, which money they, and each of them, well knew was stolen, converted, and taken by fraud. "

The offence said to be contrary to Title 18 USC Section 371 was expressed by the Magistrate in the following way:

" Beginning on a date unknown to the grand jury and continuing through at least September, 1990, within the Southern District of California, and elsewhere, defendants STEPHEN WILLIAM BISCHEL and JONATHAN ANTHONY TODHUNTER did wilfully, unlawfully and knowingly combine, conspire, confederate, and agree amongst themselves to defraud the United States by impeding, impairing, obstructing and defeating the lawful functions of the Internal Revenue Service of the Department of the Treasury in the ascertaining, computing, assessment and collection of the revenue, to wit, federal income taxes. The foregoing conspiracy and scheme to defraud was to be accomplished in substance as follows: a. The defendants would and did conceal and continue to conceal the nature of their business activities and the source and nature of their income by, among other things:

(1) Disbursements of laundered investor funds to the defendants in cash rather than by cheque;

(2) Concealment of the true purpose of the purchase of precious metals and precious metal future contracts, that is, to embezzle and steal investor funds and convert them to their own use;

(3) Conversion of investor funds to precious metal contracts and subsequent secret conversion of those metals contracts to the personal use of the defendants by the use of brokers crosses; and

(4) Clandestine movement of money obtained by fraud to Switzerland, Germany and Canada. "

That description was particularised by thirty-three overt acts.

The application by Mr Todhunter to this Court seeks review of Mr Price's decision that the supporting documents in relation to the offences had been produced to him pursuant to s. 19(2)(a) of the Extradition Act 1988; that those supporting documents complied with Article XI paras 2 and 3 of the Treaty as amended by the Protocol and s. 19(3) of the Extradition Act 1988; that other documents had been produced to him as required by limitations, conditions, exceptions or qualifications, subject to which the Act applies in relation to the United States of America; that Mr Todhunter had not satisfied the Magistrate that there were substantial grounds for believing that there is an extradition objection relating to the offences; that the provisions of s. 19(5) of the Extradition Act were ultra vires the powers of the Commonwealth; and that the applicant be committed to prison to await surrender.
Mr Todhunter seeks that the orders of Mr Price pursuant to s. 19(9) of the Act be quashed pursuant to s. 21(2)(b) of the Extradition Act and that Mr Price be directed to order the release of the applicant pursuant to s. 22(2)(b)(i) of the Extradition Act.
The applicant was born on 27 April 1936 in London, in the United Kingdom. He is married with two older children to his first wife and two younger children. His first wife and children live in Sydney, Australia. The applicant is a citizen of the U.K. and resides in Bolton-Borough, Somerset. The applicant entered Australia on 1 November 1993 for business purposes. He is involved in the wool processing industry. On 5 November 1992, the applicant was at the Regent Hotel, Sydney, for a business meeting. At about 3 p.m. the applicant was arrested by Federal Police. He was then taken to the Sydney Police Centre and detained in custody. There is some reason to think that the United States authorities preferred to seek deportation of Mr Todhunter from Australia, rather than from the United Kingdom.
On 3 November 1992, the Embassy of the United States of America in Canberra issued a Diplomatic Note No. 88 which provided:

" The Embassy of the United States of America presents its compliments to the Department of Foreign Affairs and Trade and has the honour to request the provisional arrest leading to the extradition to the United State of America of Jonathan Anthony Todhunter, also known as Johnny Cacciatore, also known as Giovanni Cacciatore. "

By a Diplomatic Note No. 98 dated 30 December 1992, the Embassy of the United States of America made a further request in the following terms:

" The Embassy of the United States of America presents its compliments to the Department of Foreign Affairs and Trade and has the honour to refer to our diplomatic note number 88 dated November 3, 1992, and requests the extradition to the United States of America of Jonathan Anthony Todhunter, also known as Johnny Cacciatore, also known as Giovanni Cacciatore. Todhunter was provisionally arrested in preparation for extradition on November 6 1992. "

A notice under s. 16(1) of the Act in relation to receipt of extradition request dated 4 January 1993 was given by Mr Michael Tate, the then Minister of State for Justice for and on behalf of the Attorney-General. That notice referred to the "Extradition Request in Diplomatic Note No. 98 of 30 December 1992 from the United States of America".
Meanwhile, on 13 November 1992 the applicant was granted bail by consent but upon certain conditions. The application for extradition was heard before the second respondent on 30 March 1993, who gave judgment on 16 April 1993, when an order was made that the applicant be committed to a prison to await extradition under a surrender warrant pursuant to s. 22(5) of the Act. On 20 April 1993, the applicant filed this application. He was again released on bail, upon conditions, pending the hearing of this application, pursuant to an order made by Sheppard J. on 22 April 1993.
The law in relation to extradition to the United States of America is contained in the Act and Regulations made under the Act. Section 11(1) of the Act provides:

" The Regulations may:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the Regulations; or

(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications. "

Regulations have been made under s. 11(1)(a) which modify the operation of the Act in relation to the United States. Statutory Rule 298 of 1988 ('the old Regulations') provided for the modification of the operation of the Act in accordance with the treaty on extradition between Australia and the United States of America that came into force on 8 May 1976 ('the Treaty'). The Treaty is contained in the Schedule to the old Regulations.
The old Regulations were amended by Statutory Rule 394 of 1992 ('the new Regulations'). The new Regulations were enacted to give effect to a Protocol which significantly amended the Treaty ('the Protocol'). In the new Regulations, the Treaty is contained in the First Schedule and the Protocol is contained in the Second Schedule.

The application of the new Regulations is provided for by Article 16 of the Protocol:
14. " Notwithstanding Article XX of the Treaty, this Protocol

shall apply in all cases in which the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date. "

The Protocol came into force when the new Regulations came into force, that date being the proclamation date provided for by reg. 1 of the new Regulations: 21 December 1992.

It was submitted by Mr Porter QC, senior counsel for the applicant, that the old Regulations were applicable in these proceedings, it being asserted that the Diplomatic Note No. 88 of 3 November 1992 constituted the request for extradition, and that this request therefore preceded the coming into force of the Protocol on 21 December 1992.
If this assertion be correct, the old Regulations would apply in these proceedings as the new Regulations do not have a retrospective effect: Schlieske v. Federal Republic of Germany 76 ALR 417.
This submission had been made before the Magistrate, who, in my opinion, rightly rejected it.
Section 5 of the Act defines an "Extradition request":

' In this Act, unless the contrary intention appears: 'Extradition request' means a request in writing by an extradition country for the surrender of a person to the country. '

Article XII of the Statutory Rules No. 298 provided for applications for provisional arrest, whereas Article XI provided for requests for extradition. This distinction is particularly highlighted in the terms of Article XII, paragraph (4), which provided that:

" A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received. "

In my opinion, the Diplomatic Note No. 88 of 3 November 1992 was an application for the provisional arrest of Mr Todhunter and the Diplomatic Note No. 98 of 30 December 1992 was the request by the Embassy of the United States for the extradition of Mr Todhunter.
In my view the old Regulations applied with respect to the provisional arrest of the applicant and the extradition request and subsequent proceedings fall to be examined under the provisions of the new Regulations.
The grounds upon which the applicant challenges the decision of the Magistrate to order his extradition may be summarised as follows:

1. That the proceedings are compromised by the failure by the Australian authorities to set the applicant "at liberty" after the expiry of 45 days from the date of the provisional arrest warrant.

2. That the material in support of the extradition request was wrongly admitted by the Magistrate.

3. That the Magistrate wrongly found that the offences with which the applicant is charged are not statute barred.

4. That Article XI(3)(c), as interpreted by the Magistrate, is unconstitutional as is s. 19(5) od the Act.

5. That the Magistrate incorrectly found that the requirements in Article XI(3)(c) of the Treaty (as amended by the Protocol) were fulfilled.

The " Set at Liberty " Ground

As to the first ground, the provisional arrest request is governed by the old Regulations. Article XII(4) of the old Regulations provided, in relation to a provisional arrest application,:

" A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received. "

The extradition request and accompanying documents were not received within the forty-five days. Putting to one side for the moment the question of what 'accompanying' means, there was no extradition request until 30 December 1992. This was the fifty-fifth day after the applicant's arrest. The applicant submits that the effect of the failure to supply the relevant documents within the period of 45 days in compliance with Article XII(4), is that the proceedings against the applicant are at an end. I do not agree.
Article XII(5) provides:

" Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person if the request is subsequently received. "

Article 8 of the Protocol repeals Article XII of the Treaty and replaces it with a redrafted Article XII ('the new Article XII'). However, the new Article XII contains a provision of identical effect. In my opinion, the expiry of the forty-five day period (in the case of the old Regulations) and of the sixty day period (in the case of the new Regulations) will require only the release of the person facing extradition from custody. In my opinion, non-compliance with Article XII is not an automatic bar to further proceedings when an extradition request, though late, is received, as it was in this case.
At the expiry of the 45 day period, the applicant was on bail. A further question therefore is whether to be set "at liberty" means that the applicant ought to have been discharged from his bail conditions, and in turn, assuming that it was a breach of Article XII(4) that the applicant remained subject to bail conditions, what consequences flow from that.
These questions were considered in Winkler v. Director of Public Prosecutions (unreported judgment of Davies J, 16 June 1989, Sydney) and again on appeal by the Full Court of the Federal Court in Winkler v. Director of Public Prosecutions (1990) 94 ALR 361.
In Winkler, where the proceedings were dealt with under the Treaty and the Extradition Act 1966 ('the 1966 Act'), the United States of America was again the extraditing country. Mr Winkler was arrested as the result of a request for provisional arrest which was accompanied by an arrest warrant issued in the extraditing country as was required by the 1966 Act. He was granted bail. In proceedings before a Magistrate it was shown that the arrest warrant of the extraditing country was defective. Despite this (for reasons not relevant in this case) Mr Winkler was not discharged from his recognisances.
In relation to the first question raised above, the Full Court, agreeing with Davies J, held that Mr Winkler could not be considered to be "at liberty" while subject to bail conditions. Wilcox and O'Loughlin JJ said at p. 373 that:

" In our view, agreeing with Davies J, Mr Winkler was entitled to be 'set at liberty', that is to have his recognisances released, not later than 16 March (the date of the expiry of the 45 day period). "

And Burchett J (at 396) stated:

" On the clear language of Art XII(4), language the effect of which was unambiguously pointed out in Government of Federal Republic of Germany v. Sotiriadis (1975) AC 1 at 6 and at 33, this ruling entitled the applicant to be 'set at liberty'; as he was in fact on bail, it entitled him to a discharge of the recognisances upon which he had been admitted to bail: see s 17(5). "

The defects in the United States arrest warrant were subsequently addressed and the extradition proceedings continued.Counsel for Mr Winkler submitted, however, that the effect of the failure to set Mr Winkler at liberty was to taint all subsequent proceedings such that there could be no valid surrender thereafter.
The Full Court rejected this submission, (as did Davies J). O'Loughlin and Wilcox JJ reviewed the cases relied upon by Mr Winkler (R. v. Hartley (1978) 2 NZLR 199; R. v. Bow Street Magistrate; ex parte Mackeson (1981) 75 Cr App R 24 and Trimbole v. Governor of Mountjoy Prison (1875) IR 550) and observed at p 375:

" We have discussed the three authorities relied upon by counsel for the applicant in order to demonstrate that, in each of them, there was a finding that relevant officers had deliberately and knowingly engaged in illegal conduct in connection with the proceedings against the affected person. In each case it was held that, as a matter of discretion - and in Trimbole also as a matter of constitutional right - the court could interfere to prevent that abuse of power attaining its purpose. The rationale of the decisions is similar to that applied by the High Court of Australia in relation to illegally obtained evidence: see The Queen v. Ireland (1970) 126 CLR 321, Bunning v. Cross (1978) 141 CLR 54 and Cleland v. The Queen (1982) 151 CLR 1. "

In describing the rationale of the decisions, O'Loughlin and Wilcox JJ referred to the judgment of Stephen and Aickin JJ in Bunning v. Cross, (with whom Barwick CJ agreed), where their Honours said at p 54:

" What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland, it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. "

O'Loughlin and Wilcox JJ then concluded (at 376):

" There is, in the present case, no element of deliberate disregard of the law by those associated with the application for extradition. Mr Winkler's bail should have been discharged on 16 March 1988 but the omission of Mr Williams to so order did not result from any defiance of the law by him or counsel then appearing for the present respondent. The omission resulted from Mr Williams' erroneous perception of the significance of s. 17(5) of the Act. To adopt the words of Stephen and Aickin JJ, the omission was an 'isolated and merely accidental non- compliance' with the safeguards incorporated into the treaty. There is no question of that omission 'tainting' the subsequent proceedings. "

Burchett J substantially agreed with Wilcox and O'Loughlin JJ at p. 402:

" The appellant also put a bolder proposition. Citing R v. Bow Street Magistrates; Ex parte Mackeson (1982) 75 Cr App R 24; R v. Hartley (1978) 2 NZLR 199 and Trimbole v. Governor of Mountjoy Prison (1985) ILRM 465, counsel for the appellants submitted that the unlawful holding of Mr Winkler to his recognisances, when they should have been discharged, so tainted the proceedings thereafter that the order of committal was invalid. This submission is, of course, in the teeth of Athanassiadis, supra, where precisely the same illegality occurred. In my opinion, the present case is clearly distinguishable from the authorities on which the appellant relies. They were cases of flagrant disregard of a fugitive's rights, and even of the rule of law itself. Such cases necessarily attract a consideration of the principle discussed by the High Court in Bunning v. Cross

(1978) 141 CLR 54; 19 ALR 641. Here, no more than an error of law was shown, though a serious one, and the same result should follow as followed in Athanassiadis. "

It was not submitted on behalf of the applicant that the failure to discharge him from his recognisances at the appropriate time was the result of any defiance or deliberate disregard of the law by the arresting authorities. Nor is there any material before me upon which I would draw such a conclusion. In my opinion, the failure to set the applicant at liberty is not, in the circumstances of this case, grounds justifying the dismissal of these proceedings.

Was material in support of the extradition request wrongly admitted?
37. It was submitted on Mr Todhunter's behalf that the materials which became Exhibits 2 and 3 in the proceedings before the Magistrate were improperly admitted. This ground focuses on the meaning of "accompanying" in Article XI as replaced by the Protocol. Exhibit 2 comprised a number of affidavits and attached exhibits, assembled under a covering document dated 16 December 1992. Exhibit 3 comprised an affidavit by James T. Caffey, with annexed exhibits, assembled under a covering letter dated 8 January 1993.

Article XI of the Treaty as enacted in the old Regulations provided:

" (1) The request for extradition shall be made through the diplomatic channel.

(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offence, the law prescribing the punishment for the offence and the law relating to the limitation of the legal proceedings.

(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.

(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence, if any, passed upon him in the territory of the requesting State, by a statement, if applicable, showing how much of the sentence has not been served and by evidence proving that the person requested is the person to whom the judgment refers.

(5) The warrant of arrest and deposition or 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) in the case of a request by Australia - those documents or certified copies bear the signature, or are accompanied by the attestation, of a judge, magistrate or officer of Australia or are authenticated by the official seal of the Attorney-General and, in any case, are certified by the principal diplomatic or consular officer of the United States of America in Australia; or

(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. "

Article 7 of the Protocol repealed Article XI and enacted a new Article XI. It provides:

" (1) All requests for extradition shall be made through the diplomatic channel.

(2) The request for extradition shall be supported by:

(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;

(b) a description of the conduct constituting the offence;

(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and

(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.

(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:

(a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;

(b) a copy of the charging document, if any; and

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

(4) A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:

(a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;

(b) information establishing that the person sought is the person to whom the finding of guilt refers;

(c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and

(d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.

(5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:

(a) in the case of a request from the United States, they

(i) purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and

(ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;

(b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or

(c) they are certified or authenticated in any other manner accepted by the law of the requested State. "

It is also necessary to refer to Article XII(4) of the Treaty (set out above) and the new Article XII(4) enacted by Article 8 of the Protocol:

" (4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI. "

The documents in Exhibits 2 and 3 before the Magistrate include a number of relevant official documents, including the indictment and a reference to an order suspending a relevant limitation period. These documents are asserted by the respondents to be the materials required by the new Article XI to be supplied in support of the request for extradition.
The applicant's submission is that the documents contemplated by the new Article XI(2), XI(3) and XI(4) will only be admissible under the new Article XI(5) if they "accompany" an extradition request, and that documents can only properly be described as "accompanying" a request if they are supplied by the extraditing country at the same time as the extradition request is made.
Exhibit 2 is sealed on 16 December 1992. Exhibit 3 is sealed on 8 January 1993. The date on the extradition request was 30 December 1992 and therefore at least Exhibit 3 could not have accompanied it in the sense contended for by the applicant. Further, it was submitted by the applicant that the onus of showing that documents accompanied the extradition request is upon the extraditing country and, in the absence of evidence to the contrary, the court ought not make a finding that the documents did accompany the extradition request.
I note first that Article XI as enacted in the old Regulations in paragraphs 2, 3 and 4 uses the phrase "accompanied by". The new Article XI in paragraphs 2, 3 and 4 uses the phrase "supported by". However, clause 5 in the new Article XI commences "The documents which accompany an extradition request shall be received and admitted...". (my emphasis)
I do not accept that "accompany", when used in clause 5 of the new Article XI is to be construed as if it meant "are supplied contemporaneously with".
The Magistrate rejected the submission on behalf of Mr Todhunter that the word "accompany" in Article XI(5) means "to go with" or "to go together". The Magistrate noted that "it was clear...that the documents in Exhibit 3 did not go with the extradition request on 30 December 1992". He said:

" The dictionary meaning of 'accompany' is 'Supplement (a thing with); go or to be put or be found with, escort, attend, (of thing), co-exist with, characterise'.

The Australian Concise Oxford Dictionary Seventh Edition. ...

The first meaning subscribed to 'accompany' was 'supplement'.

The verb 'supplement' means 'make supplement to'. The noun 'supplement' means:

'Thing added to remedy deficiencies; part added to book et cetera with further information or to periodical for treatment of particular matter.'

The Australian Concise Oxford Dictionary Seventh Edition. It is in this sense in my view that the word accompany is used in subparagraph (5). "

I agree.
Article XIII(1) of the Treaty, as amended by Article 9 of the Protocol, provides:

" If the requested State requires additional information to enable it to decide on the request for extradition, that State may request that such information be furnished within such period as it specifies. "

As counsel for the respondent pointed out, if the applicant's submission was correct and everything had to occur contemporaneously, additional material provided pursuant to Article XIII(1) would be inadmissible.
For the applicants, reliance was also placed on Article XII(4) of the Treaty and Article XII(4) as amended by Article 8 of the Protocol, which require the discharge from custody of a person provisionally arrested if the requested State has not received "the formal request for extradition and the supporting documents required by Article XI" within the time specified in the new Article XII(4), or if "a request for his extradition accompanied by the documents specified in Article XI has not been received", under Article XII(4) of the Treaty.

It is to be noted that the word describing documents is "supporting" and not "accompanying", and it seems to me that there is no necessary contemporaneity required in receipt by the requested State of the formal request for extradition and receipt by the requested State of the supporting documents required in Article XI. If at the expiration of sixty days from the date of arrest those documents have not been received, the effect of Article XII(4) is that the person provisionally arrested is required to be discharged from custody.
In my opinion, the word "accompany" is not used in the narrow sense for which Mr Porter contends. In my opinion, Article XII(5) is concerned solely with the admissibility into evidence of documents which are advanced in support of the extradition request at the extradition hearing.
Article XII(4) of the treaty and Article XII(4) as amended by Article 8 of the Protocol are directed at the question of custody of a person provisionally arrested. It seems to me on their proper construction that they mean that a person provisionally arrested is to be discharged from custody if the formal request for extradition and the supporting documents required in Article XI are not received within respectively 45 or 60 days from the date of arrest.
The chronology of events in the present case is the source of real difficulty. Mr. Todhunter was arrested on 3 November, 1992, and the request for his extradition was on 30 December, more than 45 days after his arrest, and the documents comprising Exhibit 3 were not received by the requested State any earlier than 8 January 1993, which is considerably more than 60 days after the date of Mr Todhunter's arrest. Moreover, the notice under s. 16(1) is dated 4 January 1993. In that notice, the Minister of State for Justice for and on behalf of the Attorney-General, stated that it was his opinion that Jonathan Anthony Todhunter is an extraditable person for the purposes of the Extradition Act 1988 in relation to the United State of America, and further:

" ...if conduct equivalent to the conduct of Jonathan Anthony Todhunter constituting the following extradition offences, namely:

. interstate and foreign transportation of money obtained by fraud in violation of 18 USC 2314 (23 counts); . conspiracy to transport stolen money in interstate and foreign commerce obtained by fraud in violation of 18 USC 371 and 18 USC 2314; and

. conspiracy to defraud the United States in violation of 18 USC 371;

for which surrender of Jonathan Anthony Todhunter is sought, had taken place in Australia at the time at which the extradition request was received, the equivalent conduct would have constituted extradition offences in relation to Australia;

..."

Section 6 of the Act defines an "extraditable person" and relevantly states:

" Where

...

(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that a person is accused of having committed...; ...

(b) the offence or any of those offences is an extradition offence in relation to the country;and

(c) the person is believed to be outside the country; the person is, for the purposes of this Act,an extraditable person in relation to the country.".

Mr Todhunter was an extraditable person as at the date of the notice. However, the opinion as to the equivalence of conduct cannot have been based on any of the material contained in Exhibit 3, which bears date 8 January 1993. This material contains all of the financial documents, to which Mr Peterson refers as providing the proof of the relevant offences. I find it difficult to accept that the conclusion as to the appellant's conduct could have been reached in respect of the twenty-three substantive counts on the material then available to the Minister. The counts in the indictment were specific as to the dates, places and so on, but the description of Mr Todhunter's conduct and involvement in criminality were general and broadbrush.
Some assistance to the present problem is provided in the judgments in Winkler, a case to which, curiously, no counsel referred. Wilcox and O'Loughlin JJ stated, at p. 378:

" Counsel concede that the phrase 'accompanied by' is not to be read literally, in the sense of being required to be in the same envelope. But they say that, while it may be acceptable to speak of a request being 'accompanied by' something sent subsequently, it is a misuse of language to speak of a request being 'accompanied by' something sent previously. The concession that 'accompanied by' is not to be construed literally is supported by an unreported decision of the Queen's Bench Division, Ex parte Muir, 7 December 1987. In that case Lloyd LJ and Macpherson J held that 'accompanied by...such evidence' means accompanied by such evidence at the time when the decision to commit is taken. It is not necessary for us to determine whether we would go that far, but we have no difficulty with the proposition that the phrase 'accompanied by' is sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut-off date; for example, a date by which, in the absence of the documents, the fugitive must be set at liberty. If it should happen, in a particular case, that some of the relevant documents have already been submitted to the requested state, there is no difficulty in saying that the request is 'accompanied by' those documents. The purpose of a provision such as art.XI(2) is to ensure that the requested state has all of the information which it needs in order to determine the request. Where a requested state already holds relevant documents, nothing would be achieved by requiring the requesting state to submit further copies. Extradition treaties are to be interpreted so to give effect in a practical way to the bargain between the two countries which they embody: see Postlethwaite (at 947.) " (my underlining)

Burchett J stated, at pp. 401-402:

" In the context of the treaty with which we are concerned and of the Australian Extradition Act, I have some difficulty with the proposition that the words 'accompanied by' in Art XI may be so loosely construed as to be satisfied by a document, received however late, as long as it arrives in time to be presented to the magistrate before he makes his decision whether or not to commit the fugitive to prison to await the warrant of the Attorney-General for his extradition. Although, by virtue of s 10 of the Extradition Act, the Act must be construed subject to the treaty, the treaty itself should not be read in isolation; it was concluded after the passing of the Act, and the Act forms part of the context in which it should be read. There are a number of duties owed by the Attorney-General in relation to a requisition, the due discharge of which would require him to have regard to the terms of the requisition: see Schlieske (No 2) v. The Federal Republic of Germany 76 ALR 417 at 424, 426. I do not think it would be consonant with the scheme of the Act to read the words 'accompanied by' in a sense which would include documents received after the date of the Attorney-General's notice. Such documents could not have been taken into account by the Attorney-General when deciding to issue his notice. The fact that Art XIII of the treaty, like the article referred to by Lloyd LJ, permits Australia to request additional evidence or information, within a period to be specified by Australia, does not seem to me to require any different conclusion. It may be that, in cases where Art XIII is utilised, there will by necessary implication be a variation of the effect of Art XI, but that conclusion does not require a general loosening of the language of the Article.

However, for the same reason, there is no need to construe Art XI as requiring all the documents to be in the one package. If the purpose is to ensure that certain material is available to the Attorney-General when he considers the issue of his notice, that purpose will be equally well served where the documents have come to him within a reasonable time prior to his making that decision. I do not see any reason to reject, as accompanying documents, documents received shortly before the requisition, while accepting documents received shortly afterwards. In both cases, I think it is a question of fact whether the documents are documents which, in the relevant sense, accompanied the requisition. In the present case, where a mere 10 days elapsed between the requisitions of 8 March and 18 March, I think it is also permissible to regard those two documents as constituting one requisition. For myself, I am unable to regard all three of the requisitions received in this case over a period of nearly five months as one requisition, except in the sense that the earlier document may be incorporated by reference in the later documents. The view I have taken, however, is sufficient to dispose of the appellant's contention on this point. " (my underlining)

Because Winkler deals with the version of Article XI under the Treaty, the observations in that case are not directly applicable to this case. It does, however, provide support in a general way for two propositions. First, it is made clear in the judgment of Wilcox and O'Loughlin JJ and in the judgment of Burchett J that "accompanied by" in the context of the old Regulations does not have a strict temporal connotation. In my opinion, the expression "accompany" in the context of the new Article XI does not have the strict temporal connotation urged by the applicant. It seems to me, with respect, that this view is supported by Winkler.
Second, it is clear that their Honours were of the view that there were limits to the temporal flexibility of the expression, though there was a divergence between Wilcox and O'Loughlin JJ on the one hand, and Burchett J on the other, as to where such limits might lie. The passages underlined in the above judgments would support a submission that at least Exhibit 3 was not appropriately received by the Magistrate either because it did not accompany the extradition request or, more correctly, because the request was not "supported by" a description of facts as required by Article XI(3)(c). The observations are not specifically applicable to this case based as they are on the old Article XI. Nonetheless, I also am of the view that the expression "accompany" in the new Article XI(c) is not one of unlimited flexibility and that it might also appropriately be subject to some limit.
However, whatever the appropriate limits might be, in this case the relevant documents arrived relatively close in time to the time of the arrival of the request for extradition. Exhibit 2 is dated 16 December 1992. Exhibit 3 is dated 8 January 1993. The request for extradition is dated 30 December 1992.
In the circumstances, it is, in my view, correct to describe Exhibit 2 and Exhibit 3 as documents which "accompany an extradition request". While I have been troubled by the circumstance that Exhibit 3 arrived after the date of the s. 16(1) Notice, I have not approached the line-drawing task by assuming that the date of the s. 16(1) Notice, or alternatively the expiry of the period in Article XII(4), constitute an automatic cut off date.

The Statute of Limitations Ground
63. The Treaty, in Article VII(1), relevantly provides:

" Extradition shall not be granted in any of the following circumstances:

...

(b) when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting state; "

This provision was not altered by the Protocol. The applicant submits that the offences are statute barred.
It is accepted by both parties that the offences with which the applicant is charged are subject to a limitation statute. In his affidavit, Mr Peterson, an Assistant United States Attorney for the Southern Judicial District of California, says:

" Violation of Title 18, United States Code, sections 2314 and 371 (Interstate and Foreign Transportation of Money Obtained by Fraud and Conspiracy) as here charged, fall under Title 18, United States Code, section 3282 which states: ' Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offence, unless the indictment is found or the information is instituted in five years next after such offence shall have been committed.' "

The offences with which the applicant is charged were allegedly committed by the applicant (excepting Count 109) over the period 19 November 1984 to 25 June 1985. These offences are, therefore, prima facie, statute barred. There are, however, circumstances in which limitation periods can be extended. One such circumstance is provided for by Title 18 USC section 3292, which provides:

" Suspension of limitations to permit United States to obtain foreign evidence

(a)(1) Upon application of the United States, filed before return of an indictment, indicating that evidence of an offence is in a foreign country, the district court before which a grand jury is impaneled to investigate the offence shall suspend the running of the statute of limitations for the offence if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.

(2) The court shall rule upon such application not later than thirty days after the filing of the application.

(b) Except as provided in subsection (c) of this section, a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request.

(c) The total of all periods of suspension under this section with respect to an offence --

(1) shall not exceed three years; and

(2) shall not extend a period within which a criminal case must be initiated for more than six months if all foreign authorities take final action before such period would expire without regard to this section.

(d) As used in this section, the term 'official request' means a letter rogatory, a request under a treaty or convention, or any other request for evidence made by a court of the United States or an authority of the United States having criminal law enforcement responsibility, to a court or other authority of a foreign country. "

The respondent asserts that there has been an order made under Title 18 USC 3292 extending the limitation period for the offences with which Mr Todhunter has been charged. The applicant does not dispute that an order has been made, but disputes that it applies to the offences with which Mr Todhunter is charged.
The evidence relied upon before the Magistrate by the respondent in this regard is contained in the affidavit of Mr Peterson. There was no other evidence before the Magistrate touching this question. Mr Peterson swears to considerable experience in the criminal jurisdiction, and claims to be "fully knowledgeable of the criminal laws and procedures of (the Southern Judicial District of California) and of the United States". He states in an affidavit contained in Exhibit 2:

" The United States District Court for this district entered an order on 20 November 1989, suspending the Statute of Limitations as per the above quoted statute. The order was made effective on 27 July 1989, the date the official request (letters rogatory) was made to the United Kingdom (see affidavit of James T. Caffey). Thus, the Statute of Limitations was suspended for a period of three years beginning on 27 July, 1989, and ending on July 27, 1992.

Since the Statute of Limitations was extended for three years, any offences committed after 27 July, 1984 are prosecutable in a United States District Court of the United States. All charges pending in the United States District Court against defendant Todhunter are therefore not precluded from prosecution by operation of Title 18, United States Code, Section 3282.

The letter rogatory is a document pursuant to which the United States requested assistance from the judicial authorities of the United Kingdom in gaining evidence in that jurisdiction in relation to the offences the subject of the grand jury investigation. Neither the relevant court order, the relevant letters rogatory, any other relevant document, nor any evidence other than that of Mr Peterson was before the Magistrate.
The Magistrate referred expressly to the last sentence of Mr Peterson's affidavit quoted above, and held:

" I am satisfied that the prosecution for the offences alleged to have been committed by Mr Todhunter are not barred by lapse of time according to the laws of the United States of America"

Section 21(6) of the Act provides, so far as is relevant, that:

" Where the person or the extradition country:

(a) applies under subsection (1) for a review of an order (as is the case here)

...

the following provisions have effect: ...

(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate. "

Notwithstanding these provisions, a considerable amount of additional material touching the limitations question was sought to be put before me in the course of submissions.
First, Mr Porter QC for the applicant sought leave to read and file an affidavit by the solicitor for the applicant, exhibiting two documents titled -

" An application for an order suspending the Statute of Limitations to permit the United States to obtain foreign evidence "

and

" Order for suspension of Statute of Limitations Agreement United States to obtain foreign evidence "

as well as an affidavit in support of that application sworn by Mr Peterson.

The applicant submitted that such documents could be admitted, despite s. 21(6), on the basis of the principle in Beldan 21 A Crim R 159. In Beldan, the respondent pleaded guilty in the District Court in Townsville of misappropriating sums of money from her employer. Taking into account certain material presented by her in mitigation, the trial judge discharged the respondent upon her entering into a recognisance and agreeing to an order for restitution of the money misappropriated. Subsequently the Crown became aware that certain materials put before the sentencing court by way of mitigation were fraudulent in certain details. The Attorney-General appealed against the Judge's orders pursuant to Criminal Code 1899 (Qld) s. 669A. McPherson J, at 167, observed:

" On behalf of the respondent Mr White objected to the admission of this further evidence on appeal. He did so in reliance on s. 671B, which, after conferring on the court a discretion to receive evidence on the hearing of an appeal, adds the proviso that '...in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial. "

...

Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them. The material sought to be placed before us is directed at evidence, particularly the contents of the letter dated 14 August 1985 and other statements received from the Bar table under s. 650, that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect. In cases of that nature courts have shown a strong disposition to interfere on appeal: see, for example, Meek v. Fleming (1961) 2 QB 366; Bills v. Roe (1968) 1 WLR 925; Skone v. Skone (1971) 1 WLR 812. It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind. "

His Honour was the only member of the Queensland Court of Criminal Appeal expressly to consider this issue. However, his Honour's views were endorsed by the N.S.W. Court of Criminal Appeal in R. v. Chanh Nghia Ly (unreported judgment of Meagher JA, McInerney and Badgery-Parker JJ given 16 December 1992 in Sydney) at p 10 of the judgment of the Court.
The applicant sought to bring the material in Mr Walsh's affidavit within the ambit of the Beldan principle on the basis that Mr Peterson's affidavit in support of Mr Todhunter's extradition was knowingly untrue in relation to the effect of the order suspending the limitation statute. The applicant submitted that the effect of this order was not, as Mr Peterson states, to suspend the limitation period in relation to the offences with which Mr Todhunter is charged and that the material exhibited to Mr Walsh's affidavit, particularly the relevant order, support that submission.
The applicant submitted that the Magistrate was deliberately misled on this point, and that therefore Mr Walsh's affidavit was admissible to correct the wrong evidence. I received the evidence on that basis. I note, however, that it was received as relevant to the proper consideration of the question of the accuracy of Mr Peterson's affidavit, rather than on the basis that there was necessarily some defect in Mr Peterson's affidavit.
Mr Roberts, for the respondent, responded to this material by submitting two faxed letters with attachments sent by Mr Peterson responding to queries raised in the course of submissions on this point. The applicant objected, in turn, to the admission of this material. However these were admitted as relevant to the issue raised by the applicant as to the correctness of Mr Peterson's affidavit.
On 20 September 1993, a further affidavit was sought to be read by the applicant, which I refused to admit into evidence.
As a result of the admission of the parties' supplementary evidence, I had before me all of the primary documents relevant to Mr Peterson's statements regarding the above. The respondent has not disputed the validity of the documents admitted pursuant to Mr Walsh's affidavit.
First, without reliance upon the subsequently admitted material, the applicant maintains that the Magistrate erred in finding that the offences were not statute barred because he relied solely on the affidavit evidence of Mr Peterson without also sighting the relevant court orders (which were not exhibited to Mr Peterson's affidavit). The applicant's submission is that the only proper way to prove the suspension of the Statute of Limitations is to prove the court order.
It is for the requesting country to establish that the offence has not become statute barred: Article VII(1). I do not agree that this onus can only be discharged in the way submitted by Mr Porter.
The application for an order suspending the Statute of Limitations is headed "IN RE GRAND JURY INVESTIGATION OF STEPHEN WILLIAM BISCHEL, ANDREW JOHN VENTO, WAYNE KENNETH RICHDALE, RONALD FRANCIS MORRISON, DONALD LEE CARPENTER aka Kyle Whidden". The application is said to be "to permit the United States to obtain foreign evidence". The application states:

" Said application is made pursuant to Title 18, United States Code, Section 3292, and ancillary to a request for letters rogatory previously filed before this court, and supported by the attached Assistant U. S. Attorney affidavit of Stephen W. Peterson. "

The affidavit of Mr Peterson referred to in the application makes allegations against Stephen William Bischel, and in particular asserts:

" In fact, Bischel diverted his clients' money to British commodities brokers where it was then transferred back to the United States and used to purchase a luxury home in Coronado Cays, California, several luxury automobiles imported from Europe and a 52 foot yacht. "

Vento and Richdale are said to have assisted Bischel. Bischel is said to have sold La Jolla Trading Group Inc. to Morrison who, in turn, sold it to Whidden. The affidavit swore:

" The evidence to prove the above allegations is contained in records of C. Sturge and Co., Ltd. and Midelton James and Co., Ltd. Letters rogatory to produce the above records have been issued by this court...filed July 22, 1989. "

The order made by the District Court Southern District of California on 17 November 1989 was in the following form:

" IN RE GRAND JURY ) Misc. No. 89-726 INVESTIGATION OF ) Ancillary to Misc. No. 89-429 )

STEPHEN WILLIAM BISCHEL ) ORDER FOR SUSPENSION OF ANDREW JOHN VENTO ) OF LIMITATIONS TO PERMIT WAYNE KENNETH RICHDALE ) THE UNITED STATES TO OBTAIN RONALD FRANCIS MORRISON ) FOREIGN EVIDENCE DONALD LEE CARPENTER )

aka Kyle Whidden )

UPON APPLICATION OF THE UNITED STATES OF AMERICA for an order suspending the Statute of Limitations pursuant to Title 18, United States Code, Section 3292, and the court having found by a preponderance of the evidence that evidence of an offence is in a foreign country, to wit, the United Kingdom England), Switzerland and West Germany, and good cause appearing therefor,

IT IS ORDERED that the Statute of Limitations is hereby suspended for a period not to exceed three years or until such time as there quested evidence is obtained by the United States, or sooner. Said Period of suspension shall begin on the day when the foreign evidence is requested and end on the date which the foreign court or authority takes final action on there quest."

It was submitted on Mr Todhunter's behalf that he is not named as being the subject of investigation by the grand jury. The above allegations in Mr Peterson's affidavit do not allege any impropriety on the part of any British commodities brokers,( and specifically Mr Todhunter) the allegation being Bischel diverted his clients' money to British commodities brokers where it was then transferred back to the United States. It was also submitted that the order in its terms does not establish that the offences with which Mr Todhunter is charged were covered by it.
The order is ambiguous as to the offences that are covered by it. The applicant submits that, in the context of these doubts as to the suspension of the limitation period in relation to the particular offences with which Mr Todhunter is charged, I ought take the view that the requirements of Article VII(1)(b) are not met.
The respondent replied with a faxed letter dated 30 August 1993, in which Mr Peterson asserted that the "letter rogatory" referred to in the order is the key document in establishing the identity of those covered by the order and the nature of the offences covered by the order. A copy of that document is attached to Mr Peterson's letter of 30 August. In that document, under the heading, "Persons and Entitles Involved", there appears the name of the applicant. Under the heading "Offence(s) Involved", there appear references to the various United States Code sections which are relevant to these proceedings. Mr Peterson says in his letter of 30 August that, "as is evident, Mr Todhunter was clearly targeted by the investigation and intended to fall under this order suspending the Statute of Limitations for the investigations of La Jolla Trading Group and all those criminally associated with it. "
Mr Peterson says that an unsuccessful application was made, in relation to all counts involving Todhunter, to dismiss the indictment as being time barred. Unfortunately, it does not appear whether Mr Todhunter was an applicant on such motion.
The faxed letter from Mr Peterson of 30 August also stated:

" The statute providing for suspension of the statute of limitation (which I have included) does not require that person be specifically mentioned for the order to be effective. The statute provides for more time to obtain foreign records and does not require specificity of persons being investigated. "

I have to acknowledge an instinctive reservation about the correctness of this claim, which suggests that a time limitation can be lifted in respect of unspecified offences by unspecified persons. However, on the evidence, including the unsworn faxed letters, which I permitted to be relied on having regard to the exigencies of time and distance and the provisions of O. 33 r 3, in my view the requirements of Article VII(1)(b) have been met. In reality the dispute centred on the interpretation of the effect of certain orders made in the requesting country. The respondent's assertions were made by Mr Peterson, a practicing criminal lawyer in the United States; whereas the applicant's arguments were, it seems to me, speculation from the Bar table about the effect of those orders.

The Constitutional Validity of Section 19(5) of the Act
93. Section 19(5) of the Act provides:

" In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. "

It is accepted on behalf of the applicant that extradition can no doubt be justified under the Constitution which gives powers, inter alia, to make laws with respect to "external affairs": s. xxix. Other placita have a relevance, including the legislative power with respect to the influx of criminals: s. 51(xxviii) and the legislative power of the Commonwealth with respect to aliens: s. 51(xix).
The objection on behalf of Mr Todhunter is that, even if the purpose of the law is to achieve an end within power, it nevertheless must be reasonably and appropriately adapted to the pursuit of that end. As was said in Nationwide News Pty Ltd v. Wills ( 1992-1993) 177 CLR 1, there must be reasonable proportionality. At 30.8, the Chief Justice referred to the judgment of the High Court in Davis v. The Commonwealth (1988) 166 CLR 79 and said:

" Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, ie, unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. (South Australia v. Tanner (1989) 166 CLR, at 165). Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression. "

It was submitted on behalf of Mr Todhunter that the prohibition contained in s.19(5) goes beyond anything that might be conceived as reasonable in the circumstances and beyond the subject of extradition at all. Even if a person had the power of establishing by admissible evidence a cast iron alibi in respect of the offence the subject of the extradition application, it was said that s. 19(5) would preclude that evidence being put before the Magistrate on an extradition application.
Historically in England the Extradition Act 1870, later known as the Extradition Act 1870-1935 dealt with the subject of extradition, the purpose being to permit foreign countries to obtain the surrender of persons within the jurisdiction accused of crimes outside the jurisdiction. Under that Extradition Act, the procedure was to obtain the arrest of the person sought and then evidence was required to prove his prima facie guilt "according to English rules of evidence": Halsbury's Laws of England 4th ed. 18 para. 225. The accused person was entitled to call evidence and could give evidence of an alibi (Halsbury's para. 226).
It was submitted on behalf of Mr Todhunter that where by the terms of s. 19(5) an irrefutable alibi, or evidence that a person had never been in the country seeking extradition, or that he was only a young child at the time, would be inadmissible, with the consequence that the section is not really a law as to extradition at all. It was submitted that the subsection raises the further question of whether the Commonwealth has power to order the surrender of persons resident in the Commonwealth, including its own citizens, to other States without their being heard in their defence. It was said that there was a constitutional implication against the Commonwealth permitting a person to be imprisoned and taken to another country in custody without his having any right to be heard in his own defence. Reliance is placed on the developing concept of implied rights such as was the subject of the High Court's conclusion in Australian Capital Television Pty Ltd v. The Commonwealth (1992-1993) 177 CLR 106.
In my opinion, s. 19(5) is not ultra vires the power of the Commonwealth. The present extradition regime between Australia and the United States, established under the Act and the regulations, is not directed, as previously was the case, to the question of whether the evidence established guilt to a prima facie or other level at all; it is not couched in terms of an assessment of guilt or innocence. What the present regime between Australia and the United States does do is to require a certain level of evidentiary material (I deliberately do not use the word "evidence") and the regime is premised on a confidence in the jurisprudential integrity of the requesting State to address any question of guilt or innocence according to the legal standards that apply in an inquiry into those matters in the requesting state. Importantly, that confidence is reciprocal.
The amendments to the Act make a significant departure from the previous law as indicated by the judgment in Unkel v. DPP 95 ALR 44, where, under the Regulations relating to extradition to the United States prior to 21 December 1992, being Statutory Rule 298 of 1988, it was necessary to prove a prima facie case by proper non-hearsay evidence.
That being my view of the significant change introduced into the scheme of the Act and regulations by the Protocol, it is necessary to have regard with some strictness to the requirements of Article XII(3)(c) which requires a description of the facts by way of affidavit, statement or declaration setting forth reasonable grounds for believing that the offence has been committed and the person sought committed it. It is also necessary to have regard to the provisions of s. 19(3)(c)(ii) which requires that "supporting documents" in relation to an extradition offence means ... "a duly authenticated statement in writing setting out the conduct constituting the offence". If the supporting documents as so defined (my emphasis) in relation to the offence have not been produced, then the effect of s. 19(2) is that a person is not eligible for surrender in relation to the offence in respect of which the supporting documents relate.
In my opinion, these requirements are such that persons are not eligible for extradition in relation to a particular offence unless the material sufficiently provides a basis in reason for believing that that offence has been committed and the person sought by the requesting State committed it.
Having regard to these factors, in my view s. 19(5) is not ultra vires the legislative power of the Commonwealth.

Reasonable Grounds to Believe
104. The above discussion highlights the centrality of the requirement under Article XI(3)(c) and s.19(3)(c)(ii). Article XI(3) in the old Regulations required that a request for extradition must

"be accompanied... 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 "

Article XI(3)(c) in the new Regulations requires the request to be

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

The change from the production of "evidence" to "a description of the facts by way of affidavit statement and declaration" is deliberate, and in my opinion it is not necessary that a description of the facts be by way of legally admissible evidence according to the laws of the requested state.

It was submitted on behalf of Mr Todhunter that a hearsay description of facts should be disregarded. I see no such requirement in the formulation of Article XI(3). The nature of the hearsay, whether it is attributable or non-attributable, the quality of the source, and other factors may all bear on the question of whether the description, be it hearsay or otherwise, is such as to found "reasonable grounds for believing" as the Article requires.
In my opinion the indictment cannot provide the information necessary for the purpose of Article XI(3)(c). Such a document is not a "description of facts by way of affidavit, statement or declaration".

It was submitted on behalf of the respondent that the task of the court in relation to Article XI(3)(c) is to ascertain from the description of facts whether there are reasonable grounds for believing that an offence has been committed and that the person sought committed it. It was submitted that Article XI(3)(c) does not refer to the offence for which extradition is sought. It was further submitted that when considering Article XI(3)(c), the court is neither required nor permitted to consider the elements of the United States offences, or whether the description of the facts gives rise to the offences charged in the United States, or indeed any other offence in that country. I disagree with each of these submissions.
Where extradition is sought in respect of some 25 offences, in my opinion it is not sufficient that some criminality of some sort is disclosed in the description of facts that accompany the extradition request. Before a person can be extradited, what is required is a description of facts which provide reasonable grounds for believing that an extradition offence has been committed. That is directed at a particular offence. Where extradition is sought in respect of a number of offences, there has to be in the material, a description of facts that provide reasonable grounds for believing that each of such offences has been committed and that, in this case, Mr Todhunter, committed it. Further, in my opinion, the requirement that there be "reasonable grounds to believe" that an offence has been committed requires reasonable grounds to believe that each element of that offence has been committed.
On behalf of the respondents, it was submitted that each offence and the specific documentary material which goes to that offence is described in the affidavit of Stephen Peterson, pages 7 to 17, the reference to "Exhs" and "Tab" in that affidavit being a reference to the labels on the documents which are before this court.
Contrary to what the respondents assert was the position before the Magistrate, Mr Porter, there submitted "... the extradition statement of facts or omissions is an appeal to a jury's emotions, but it doesn't set out any factual material on which your Worship can reach the reasonable belief that you have to reach under Article XI".

The standard which the supporting material must satisfy is

not couched in terms of "reasonable suspicion" but in terms of "reasonable grounds to believe", as to the guilt of the person sought to be extradited of the offence in respect of which his extradition is sought.

In relation to the transportation of stolen goods charges, Mr Paterson in his affidavit swears that

"The essential elements of this charge are as follows:

1. The defendant moved or caused money obtained by fraud or property worth at least $5,000 to be moved from one state to another or from the United States to another country. (My underlining.)

2. At the time the money or property crossed interstate or foreign boundaries the defendant knew it was stolen (my underlining) and

3. The defendant intended to deprive the owner of the use of the money or property temporarily or permanently."

I think it quite likely that the first element involves an error, in that movement from another country to the United States would, one imagines, be caught within the rubric of "foreign commerce". While it is true that Mr Paterson's evidence is the only evidence on this issue, I have not approached the matter by requiring a technical adherence to what Mr Paterson defines as the first element of the offence. In this I may be wrong. It is the case that counts 86-106 allege a transportation from either England or Switzerland to the United States. Count 107 alleges a movement from San Diego, California to Chicago, Illinois and count 108 alleges movement from San Diego to London, England.
There is in the material referred to by Mr Paterson, no description of the source of the money which is alleged to have been transported, no explanation of how it is alleged that Mr Todhunter caused that transportation to occur, nor is there any material from which any knowledge of Mr Todhunter in relation to the character of the transaction referred to in the count can be inferred. In my opinion, such description of facts by way of affidavit statement and declaration as apply to count 107 and count 108 do not satisfy the requirement of Article XI.
In my opinion, the material referred to by the respondent is not such that there are reasonable grounds to believe that the 23 offences specified as counts 86 to 108 inclusive were committed, and that Mr Todhunter committed them, and it was not open to Magistrate to so conclude.
By way of exposition of my general conclusion Mr Peterson says that:

"As to count 86 of the indictment, the evidence consists of proof that the defendant Jonathan Anthony Todhunter moved or caused to be moved by wire transfer approximately $130,795 from F Murphy Metals in Leicester, England to Western American Finance on or about November 19, 1984. Exhs 26-1, 26-6, Tab; 26-8, 26-9, 29-1."

Exhibit 26-1 contains a total of approximately 90 documents being communications generally from various parts of ABN (which is a reference to Algemene Bank, Netherland NV) and documents from other financial bodies. The dates the documents bear range from the 5 November 1984 to the 5 June 1985.
I have looked at all of the matters referred to in Mr Paterson's affidavit in respect of count 86. The only document that I can see of any use for present purposes is a debit advice dated 16 November 1984 from ABN Bank to F Murphy (Metals) Limited, the details of which are said to be "TT favour Western American Finance value 16/11/84 debit US $130,975". A copy of the same document appears in government exhibit 26-9. The count of the indictment alleges a transfer from Foreign Trust, London, England to West American Finance. Mr Paterson's reference to the evidence relates to a transfer of the same sum from F Murphy Metals in Leicester, England to Western American Finance.
The voluminous accounting documents, although they no doubt touch on a transaction involving $130,975, do not in my opinion provide reasonable grounds for establishing the offence constituted by count 86 of the indictment was committed; moreover the material is silent as to the origin of the $130.975.00, as to Mr Todhunter's involvement in the transaction; and as to Mr Todhunter's knowledge that the sum was "stolen, converted or taken by fraud".
There is, in my opinion, no attempt at specificity in all the affidavit material relied on by the respondent in respect of each of those 23 counts.
The affidavits of Karen Batza, John Vacarro and Philip M Dunn and James T. Caffey do not alter the position. Mr Vacarro was formerly employed at La Jolla Trading Group by Stephen Bischel. Philip Dunn was a commodities broker in La Jolla, California and one of his clients was La Jolla Trading Group and Stephen Bischel. He refers to two meetings with the applicant whom he also knew as Johnny Cacciatore. (While the use of an alias may have a pejorative significance, "cacciatore" is simply Italian for "hunter".) Karen Batza was the girlfriend and companion of Stephen Bischel for some six years.
Each of their affidavits is general in its terms and is not directed to any particular transaction or event, and does not make good the deficiency in the material in respect of the 23 "transportation of stolen goods" counts.
James T. Caffey is a special agent with the United States Treasury Department in San Diego, California and gives a general account of his investigation into La Jolla and its owner, Stephen Bischel. It is necessary to set out some parts of that account.

"4. In 1988 I was assigned to investigate La Jolla Trading Group and its owner Stephen Bischel. La Jolla Trading Group was a California corporation formed to buy and sell precious metals and commodities contracts. Clients located throughout the United States were solicited over the telephone using high pressure sales tactics. Various misrepresentations were allegedly made to them to induce them to send money to La Jolla. During the time La Jolla operated, it brought in over US$10.7m. My investigation has revealed that in excess of $3,800,000.00 was diverted by Stephen Bischel for his own personal use. Further investigation has revealed that Jonathan Todhunter assisted Stephen Bischel in this diversion of funds.

5. Some of the La Jolla Trading Group funds was sent to a commodities firm in London, England, called C. Sturge and Co. The investigation disclosed that these stolen funds were laundered at C. Sturge and Co. using a trade manipulation called a brokers cross. This occurred when two pairs of simultaneous buys and sells of a commodity were made at a certain price, with each pair being made at a different time and a different price. The pairs were then split and the buy of one pair was matched with the sell of another pair. This resulted in a winning pair and a losing pair of trades. The clients of La Jolla Trading Group were assigned the losing pair of trades and the paper work was prepared to reflect these losses. The clients were then told their trades had resulted in losses and that their money was gone. The winning pair of trades was assigned to Stephen Bischel or his nominee Forum Trust Company and he now had the money laundered the money available for his use as he saw fit.

6. During the investigation, I discovered that Jonathan Todhunter was instrumental in laundering the stolen funds for Stephen Bischel. I traced the funds from La Jolla Trading Group to the bank account of C Sturge and Co. in London, England. I then traced the funds from C Sturge and Co. to various Banks in England, Germany, Switzerland, Canada and the United States. Some of these bank accounts belonged to Jonathan Todhunter or were controlled by Jonathan Todhunter. Some of the funds were then transferred to Stephen Bischel of to third parties to pay for purchases made by Stephen Bischel."

So far as his general account speaks of Mr Todhunter's involvement, he asserts that

"..it was Jonathan Todhunter who introduced La Jolla Trading Group to C Sturge and Co....the gains (from the brokers cross) were credited to Forum Trust Company which was a Jonathan Todhunter company. Jonathan Todhunter also owned West American Finance. I discovered that Jonathan Todhunter ordered a lot of the money sent to the trust account of an attorney in San Diego by the name of William Sauls."

He said that the person who was the dealer for C Sturge and Co. who handled the La Jolla account, said that

"..the trade orders and the instructions for the broker's crosses came from La Jolla or Jonathan Todhunter and the gains from the broker's crosses were assigned to Forum Trust Company on the instructions of La Jolla."

Mr Caffey said that he spoke with the head of F Murphy (Metals). He asserts that the gains in which F Murphy (Metals) was involved

"were assigned to Forum Trust Company and the losses were assigned to the C Sturge and Co. account. The orders to make these trades came from C Sturge and Co. or Jonathan Todhunter. Forum Trust Company is a Jonathan Todhunter firm and has an address in Switzerland. "

Speaking of the records that he had obtained, he says: "The records clearly show that the money was manipulated by Jonathan Todhunter and later used by Stephen Bischel". That statement is inconsistent with earlier statements in his affidavit. Apart from the general statement by Mr Caffey as to what he says is the effect of the records that he examined, there is no attempt to explain the documentary materials and in my opinion the unexplained material is not capable of providing grounds for the holding of a reasonable belief for the view contended for by the respondents.
There is nothing in the financial records to distinguish the matters which are the subject of the charges from those which are not. An undertaking or foreshadowing by counsel for the first respondent that he would take the court through this material "page by page" in order to demonstrate how it can be relied on as setting forth reasonable grounds for belief in Mr Todhunter's guilt was not essayed.
I turn now to consider count 85, which alleges a conspiracy to transport money in interstate and foreign commerce which money had been taken by fraud, from an unknown date to the 25 June 1985, and count 109 which alleges a conspiracy from an unknown date to September 1990 to defraud United States Revenue.
As to count 85 Mr. Peterson in his affidavit gives, inter alia, a summary of that charge in the indictment, and an explanation of the offence of conspiracy and then baldly states "The following attached exhibits are evidence which support the charge set out in the conspiracy count in count 85". He then sets out various numbered exhibits.
Count 85 is in the following terms :-

"2. Beginning at a date unknown and continuing up to and including June 25, 1985,within the Southern District of California and elsewhere, defendants STEPHEN WILLIAM BISCHEL and JONATHAN ANTHONY TODHUNTER did willfully, unlawfully and knowingly combine, conspire, confederate and agree together and with eachother, and with divers other persons known and unknown to the grand jury, to commit offences against the United States, to wit, to knowingly transport and cause to be transported money of A VALUE OF $5,000 OR MORE, in violation of Title 18, United States Code, Section 2314.

3. It was part of the said conspiracy that the defendants would transport and cause to be transported in interstate and foreign commerce from San Diego, California, within the Southern District of California, to London, England, and elsewhere money knowing the same to have been stolen, converted and taken by fraud."

Title 18 USC Section 2314 proscribes, inter alia, the transport in interstate or foreign commerce of money of a value of $5,000.00 or more knowing the same to be been stolen, converted or taken by fraud. From the third paragraph, it seems that the count alleges transportation from San Diego California to London England and elsewhere. Each of the twelve overt acts, however, alleges transportation of property from a place outside the United States to somewhere else.
If it be the case that Mr. Peterson's description of the element of the offence of transportation be binding on the court, then it is clear that none of the overt acts involve the transportation of property from one state of the United States to another or from the United States to another country. I am of the opinion that the overt acts are overt acts of a conspiracy different from that alleged.
However my view at the end of the day is that the affidavit material of the respondents is such as to provide reasonable grounds to believe that the conspiracy alleged in the paragraph numbered 2 in count 85 of the indictment dated April, 1992 occurred. The material does not provide reasonable grounds for belief that any one of the overt acts numbered 1 - 12 in that count occurred, but in my view the evidence of the affidavits of Caffey, Vaccaro, Dunn and Batza provide reasonable grounds for the belief that the conspiracy alleged in paragraph 2 of that count occurred, and that Mr Todhunter was a party to it.
Concerning the account of conspiracy alleged as count 109, the same objections earlier referred to apply in relation to the inadequacy of the material concerning establishment of a reasonable ground for believing the precise matters asserted as overt acts. In my opinion the affidavit evidence, particularly that of Dunn and Batza is sufficient to comply with the requirements of Article 11(3)(c) in respect of the offence alleged in this Court. I have had regard to the requirements which appear in the judgment of the High Court in Ahern v. The Queen (1988) 165 CLR 87 and the reference in that case to Glasser v. The United States (1942) 315 US 60 at 75.
For the above reasons, insofar as the order of the Magistrate extends to 23 offences contrary to title 18 United States Code section 2314 and 2, I quash the order and direct the Magistrate to order the release of the applicant. The court otherwise confirms the order of the Magistrate. I will hear the parties as to the precise form of the orders I should make and as to costs.

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Citations

Todhunter, J.A. v. Attorney-General of the Commonwealth of Australia & Anor [1994] FCA 548 ((1994) 124 ALR 442)

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[1994] FCA 548

01 AUGUST 1994