Todhunter v United States of America
[1995] FCA 235
•12 APRIL 1995
CATCHWORDS
EXTRADITION - sought by United States - incorporation of extradition treaty into municipal law - stages in extradition process - determination by magistrate - judicial review - material in support of extradition request - meaning of requirement that documents "accompany" extradition request - bar on extradition when offences are statute barred in foreign state - requirement that extradition request be supported by a description of facts setting forth reasonable grounds for believing an offence has been committed by the person - penalty - dual criminality - Extradition Act 1988, ss. 11, 19, 21, 22 - Extradition (United States of America) Regulations 1988 - Extradition (United States of America) Regulations (Amendment) 1992 - Treaty on Extradition between Australia and the United States of America, Arts II, VII, XI.
Riley v The Commonwealth of Australia (1985) 159 CLR 1
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1
Winkler v Director of Public Prosecutions (1990) 25 FCR 79
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Unkel v Director of Public Prosecutions (1990) 95 ALR 44
Linhart v Elms (1988) 81 ALR 557
JONATHAN ANTHONY TODHUNTER v
UNITED STATES OF AMERICA & ANOR
No. NG624 of 1994
BEFORE: BLACK CJ, GUMMOW, LINDGREN JJ.
PLACE: SYDNEY.
DATE: 12 APRIL 1995.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG624 of 1994
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia.
BETWEEN: JONATHAN ANTHONY TODHUNTER
Appellant
AND: UNITED STATES OF AMERICA
First Respondent
DEREK MICHAEL PRICE
Second Respondent
BEFORE: BLACK CJ, GUMMOW, LINDGREN JJ.
PLACE: SYDNEY.
DATE: 12 APRIL 1995.
MINUTE OF ORDERS
THE COURT ORDERS THAT:
(1)"United States of America" be substituted for "Attorney-General (Commonwealth) for United States of America", as the first respondent and cross-appellant.
(2)The appeal otherwise be dismissed.
(3)The cross-appeal be dismissed.
(4)The costs of the first respondent of the appeal be paid by the appellant.
(5)There be no order for costs on the cross-appeal.
(6)There be liberty to any party to apply on 7 days' written notice to a Judge of the Court in respect of any outstanding issue of costs of the proceeding at first instance.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG624 of 1994
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia.
BETWEEN: JONATHAN ANTHONY TODHUNTER
Appellant
AND: UNITED STATES OF AMERICA
First Respondent
DEREK MICHAEL PRICE
Second Respondent
BEFORE: BLACK CJ, GUMMOW, LINDGREN JJ.
PLACE: SYDNEY.
DATE: 12 APRIL 1995.
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from orders made by a Judge of the Court (Spender J) in a matter reported sub nom Todhunter v Attorney-General (Cth) (1994) 52 FCR 228.
The appeal raises several issues as to the construction of and interrelation between the Extradition Act 1988 ("the Act") and the Extradition (United States of America) Regulations (SR No. 298 of 1988) ("the 1988 Regulations") and the Extradition (United States of America) Regulations (Amendment) (SR No. 394 of 1992) ("the 1992 Regulations").
The Legislative Scheme
The Act replaced the Extradition (Commonwealth Countries) Act 1966 and the Extradition (Foreign States) Act 1966 ("the 1966 Act"). These were repealed by s. 4 of the Extradition (Repeal and Consequential Provisions) Act 1988. We were referred to various decisions under the earlier legislation. Whilst this had many features in common with the current legislation, the relevant provisions are not identical and some care is required in applying the reasoning in those decisions to the present case.
For the purposes of the present appeal, it is important to keep in mind the various stages in the legislative scheme established by the Act. In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, the Full Court said:
"The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12 (1) or by the giving of a notice under s 16 (1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16 (1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered."
As applicable to the circumstances of the present case, the following points should be noted. Section 12 provides for an application on behalf of an extradition country to a magistrate for a "provisional arrest warrant". Upon receipt of an extradition request, the Attorney-General, as a matter of discretion, may by notice in writing in statutory form and expressed to be directed to a magistrate, state that the request has been received (s. 16).
If (i) a person is on remand after arrest under a provisional arrest warrant, (ii) the Attorney-General has given notice to the magistrate under s. 16, (iii) application has been made to the magistrate for proceedings to be conducted in relation to the person under s. 19 and (iv) the magistrate considers there has been reasonable time for preparation by the extradition country and the person for the conduct of the proceedings, then the magistrate is required by s. 19 to conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offences for which surrender is sought. If the magistrate determines that the person is eligible for surrender to the extradition country, the magistrate must make the order that the person be committed to prison to await surrender or release (sub-s. 19 (9)). Section 21 provides, in fairly close terms, for judicial review of orders made by a magistrate under s. 19.
If the magistrate has determined that the person is eligible for surrender, then the taking of the final steps in the process falls to the Attorney-General. Those steps may lead to the release of the person (sub-s. 22 (5)) or to the issue by the Attorney-General of a warrant for the surrender of the person to the extradition country (s. 23).
In dealing with any question as to the adequacy of supporting materials provided by the extradition country, it is vital to ask that question in relation to each of these distinct steps. Some of the supporting material may be relevant to one but not others of those stages in the extradition process. The task of the Attorney-General under s. 22, for example, is quite different from the task of the magistrate under s. 19.
The Act also contemplates that the primary operation of its provisions may be qualified so as to give effect to particular extradition treaties. This is achieved by s. 11. This has an impact both upon the proceedings before the magistrate (but subject to sub-s. 11 (6) to which we later refer) and upon the materials to be taken into account by the Attorney-General in the exercise of the discretion as to whether the eligible person should be surrendered.
In particular, sub-s. 22 (2) would operate in a case such as the present after the determination by the magistrate and would require the Attorney-General, as soon as is reasonably practicable, and having regard to the circumstances, to determine whether the appellant was to be surrendered. The Attorney-General could decide to surrender him only if various conditions were satisfied. These are set out in sub-s. 22 (3). One condition, that in para. (e), is as follows:
"(e)where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i)surrender of the person in relation to the offence shall be refused; or
(ii)surrender of the person in relation to the offence may be refused;
in certain circumstances - the Attorney-General is satisfied:
(iii)where subparagraph (i) applies - that the circumstances do not exist; or
(iv)where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused ..."
If the surrender stage had been reached in the present case, para. 22 (3) (e) would have operated. This would be because the Treaty (to which we refer further below), provides, in terms which would appear to attract sub-para. (e) (i), that extradition shall not be granted in designated circumstances.
It is convenient at this stage to set out the text of para. (i) of Article VII of that Treaty. This is:
"(1)Extradition shall not be granted in any of the following circumstances:
(a)when the person whose extradition is requested is being proceeded against, has been tried or discharged or punished, or has been pardoned, in the territory of the requested State for the offence for which his extradition is requested;
(b)when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State; or
(c)when the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of a political character.
[Emphasis supplied]
Sub-paragraph (b), on the case presented for the appellant on the appeal, would apply to him and require that he not be surrendered. However, that may be, this issue is one which would arise at the stage where the Attorney-General was acting under s. 22. That stage has yet to be reached.
This state of affairs tended to obscure in argument before us the significance of the requirement in Article XI, sub-para. (2) (d) that the request for extradition be supported by a statement of the law relating to the limitation of legal proceedings. As will appear, the true issue involving limitations at the stage of the extradition process which was reached in the present case at best concerns only the provision of a statement of the relevant law. It is not
whether on some factual material the law actually applies in favour of the appellant.
We mention these matters now to emphasise the importance of an analysis by the Court of the submissions presented for the appellant in terms of the particular stage of the extradition process to which they might properly be directed.
As we have said, treaty arrangements have been carried into the Act as it operates upon the appellant. Regulations 3 and 4 of the 1988 Regulations are as follows:
"3.The United States of America is declared to be an extradition country.
4.The Act applies in relation to the United States of America subject to the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976 (being the treaty a copy of the text of which is set out in the Schedule)."
The 1992 Regulations commenced on 21 December 1992. Regulation 4 of the 1988 Regulations was amended by deleting the concluding words "(being the treaty a copy of the text of which is set out in the Schedule)" and substituting "as amended by the Protocol done at Seoul on 4 September 1990 (being, respectively, the treaty a copy of the text of which is set out in Schedule 1 and the protocol a copy of the text of which is set out in Schedule 2)".
We were supplied with a document which reflected the text of the Treaty as amended by the Protocol and references in this judgment to Articles of the Treaty are to the text appearing in that composite document. We have used and will continue to use the term "the Treaty" to refer to the Treaty as amended by the Protocol.
The effect of the Regulations is to draw into municipal law the terms of the Treaty. This comes about in the following fashion. Paragraph 11 (1) (a) of the Act provides that the Regulations may state that the 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. Sub-section 11 (1C), which was introduced by s. 4 of the Extradition Amendment Act 1990 ("the 1990 Act"), states that for the purposes of, inter alia, sub-s. (1) the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty "may be expressed in the form that this Act applies to the country concerned subject to that treaty". Sub-section 11 (1C) came into effect with the Royal Assent to the 1990 Act on 22 October 1990. Nevertheless, the 1988 Regulations are to be regarded as if sub-s. 11 (1C) had been in force on the date of the commencement of the 1988 Regulations. This follows from sub-s. 4 (2) of the 1990 Act.
The effect of the introduction of the Treaty in this way into municipal law is qualified by sub-s. 11 (6). This has an important bearing upon the operation of s. 19 and the function of the magistrate under that provision. It will be necessary later in these reasons to refer in more detail to s. 19. It is sufficient now to note that the effect of sub-s. 11 (6) is that for the purpose of the magistrate's making of a determination under sub-s. 19 (1) as to whether a person is eligible for surrender, no limitation, condition, qualification or exception which otherwise applies under s. 11, "has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19 (2) (a), (b), (c) or (d)".
We have already referred to the impact of s. 11 upon that stage of the extradition process concerning the making of a surrender determination by the Attorney-General, pursuant to s. 22. In particular, we have set out the text of para. 22 (3) (e).
It has been said that an international convention should be interpreted in a common law court "on broad principles of general acceptation" and so as to accord with its general international purpose and to reflect the general range of circumstances in which it will fall for implementation: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412-3 per Gaudron J.
In Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 15, Deane J said:
"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.
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, Art. 31; ... 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 recognised 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. 906-7, n 12] and O'Connell [International Law, 2nd ed] vol. 2, p. 722."
See also Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297.
The Facts
The appellant, Mr Todhunter, was born on 27 April 1936 in the United Kingdom. He is a citizen of that country and resides there. His first wife and two children live in Australia.
Mr Todhunter entered Australia on 1 November 1992 for business purposes. He is involved in the wool processing industry. On 5 or 6 November 1992, he was at the Regent Hotel in Sydney for a business meeting. At about 3 pm he was arrested by the Federal Police and detained in custody. On 13 November 1992, Mr Todhunter was granted bail, by consent, but upon certain conditions. The second respondent is the magistrate before whom the application for extradition to the United States was heard on 30 March 1993. On 16 April 1993, an order was made that Mr Todhunter be committed to prison to await extradition. On 20 April 1993, he filed the application in this Court which was heard by Spender J on 30 August, and 1 and 20 September 1993. Pursuant to an order made by a Judge of the Court on 22 April 1993, the appellant had been released on bail, upon conditions, pending the hearing of that application. Spender J delivered judgment on 1 August 1994.
The arrest of the appellant followed the issue on 3 November 1992 of Diplomatic Note No. 88 by the Embassy of the United States of America in this country. The note requested "the provisional arrest leading to extradition to the United States of America of Jonathan Anthony Todhunter aka Johnny Cacciatore, aka Giovanni Cacciatore". A further request was made by Diplomatic Note No. 98 dated 30 December 1992. This referred to Note No. 88 and requested the extradition of the appellant stating that he had been "provisionally arrested in preparation for extradition on November 6 1992".
Upon receipt of the extradition request, the Attorney-General was authorised by s. 16 of the Act, in his discretion, by notice in writing expressed to be directed to any magistrate, to state that the request had been received. The Attorney-General was obliged not to give the notice unless he formed certain opinions as to certain matters. The first was that Mr Todhunter was an "extraditable person" in relation to the United States. The second that if the conduct of Mr Todhunter constituting any of the "extradition offences" for which his surrender was sought, or "equivalent conduct", had taken place in Australia at the time at which the extradition request was received, the conduct or equivalent conduct would have constituted "an extradition offence in relation to Australia". The Attorney-General also was obliged not to give notice if he was of opinion that there was an "extradition objection" in relation to all of the extradition offences for which surrender was sought.
Mr Todhunter would be an "extraditable person" if any of the offences was an extradition offence in relation to the United States (s. 6). An extradition offence in relation to the United States means an offence against a law of the United States for which the maximum penalty was deprivation of liberty for a period of more than one year or "a more severe penalty" (s. 5 as modified by para. (1) of Article II of the Treaty). The term "extradition objection" is given content by s. 7 of the Act. There is an extradition objection if, inter alia, the extradition offence is a political offence in relation to the extradition country. References in the Act to a law of a country such as the United States includes a reference to a law in force in a part of the country (s. 9).
On 4 January 1993, the Minister of State for Justice, acting for and on behalf of the Attorney-General, issued a notice under sub-s. 16 (1) stating that an extradition request from the United States of America had been received in relation to Mr Todhunter. The notice recited that the Minister was, in respect of the extradition request in Diplomatic Note No. 98 of 30 December 1992, of opinion that, in relation to the United States, Mr Todhunter was an extraditable person for the purposes of the Act, and that if conduct equivalent to the conduct of Mr Todhunter constituting the extradition offences for which his surrender was sought had taken place in Australia at the time at which the extradition request had been received, the equivalent conduct
would have constituted extradition offences in relation to Australia.
The offences are 23 counts (counts 86 - 108) relating to interstate and foreign transportation of money obtained by fraud, in violation of ss. 2314 and 2, Title 18, United States Code ("U.S.C."); a count (count 85) of conspiracy to transport in interstate and foreign commerce money obtained by fraud, in violation of ss. 371 and 2314 of Title 18, U.S.C.; and a count (count 109) of conspiracy to defraud the United States in respect of the functions of the Internal Revenue Service in relation to income tax, in violation of s. 371 of Title 18, U.S.C.. Section 2 of Title 18 renders punishable as a principal one who aids, counsels, induces or procures the commission of an offence against the United States. The references to "counts" are to those in an indictment dated July 30, 1992 by a Grand Jury, in the United States District Court, Southern District of California.
Sub-section 19 (1) of the Act stipulates 4 conditions precedent or jurisdictional facts, the satisfaction or existence of which obliges the magistrate to conduct proceedings. The sub-section states:
"19(1) Where:
(a)a person is on remand under section 15;
(b)the Attorney-General has given a notice under subsection 16 (1) in relation to the person;
(c)an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d)the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country."
It will be noted that one of the conditions precedent is the giving of a notice by the Attorney-General under sub-s. 16 (1): Schlieske v Federal Republic of Germany (1987) 76 ALR 417 at 423. The giving of the notice under sub-s. 16 (1) is not attacked in these proceedings: cf Harris v Attorney-General of the Commonwealth, supra. The function of the magistrate under s. 19 is quite different from that of the Attorney-General under s. 16. The Attorney-General is empowered by notice in writing directed to the magistrate to state that the request has been received. The task of the magistrate under s. 19 is to determine eligibility for surrender. Where the magistrate determines that the person is eligible for surrender to the extradition country, the magistrate is required, pursuant to sub-s. 19 (9), to order by warrant that the person be committed to prison to await surrender or release. As we have noted, the decision to surrender or release is entrusted to the Attorney-General by ss. 22-25. The warrant under sub-s. 19 (9), issued by the second respondent on 16 April 1993, recited the conduct of the proceeding under sub-s. 19 (1) and the determination therein that Mr Todhunter was eligible for surrender in relation to all 25 of the extradition offences.
The primary Judge quashed the determination in relation to the 23 counts (86 - 108) relating to the transportation of money obtained by fraud and affirmed the determination in respect of the remaining two counts (85 and 109), conspiracy to transport stolen money and conspiracy to defraud the United States respectively.
The appellant has appealed in respect of counts 85 and 109 and the first respondent has cross-appealed in relation to the 23 counts, numbered 86-108. The second respondent, the magistrate, took no active part in the appeal.
Judicial Review
In Harris v Attorney-General of the Commonwealth (1993) 45 FCR 11, affd. (1994) 52 FCR 386, this Court entertained an application under s. 39B of the Judiciary Act 1903 for injunctive relief to restrain the taking of action upon a notice issued under sub-s. 16 (1) of the Act. However, the specific provisions of s. 21 of the Act, in relation to review of an order made by a magistrate under s. 19, displace the provisions of the Administrative Decisions (Judicial Review) Act 1977: cf Wiest v Director of Public Prosecutions (1988) 23
FCR 472 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 127 ALR 21 at 24-5, 36, 45-7, 51-2, 54, 68, 75.
Section 21 provides for judicial review in limited circumstances, as was pointed out by the Full Court in Kainhofer v Director of Public Prosecutions (1994) 124 ALR 665 at 683. The Full Court there indicated that the question for the Court at first instance on a review instituted by the extraditable person is whether that person is eligible for surrender in respect of any of the offences in relation to which surrender is sought and not the more limited question of eligibility for surrender in relation only to the offences the subject of a determination by the magistrate favourable to the extradition country. The Court recognised the consequence that where the magistrate has made a favourable determination in respect of the extradition country in relation to some but not all of the offences, that part of the determination adverse to the extradition country can be reviewed only upon application by the extraditable person.
In the present case, the application for review by the primary Judge was instituted by Mr Todhunter and there had been a determination adverse to him in respect of all of the alleged extradition offences. The appeal against the primary Judge's decision is again instituted by Mr Todhunter. There was no objection to the competency of the cross-appeal instituted by the extradition country. As will be seen, sub-s. 21 (3) operates at that stage and provides for an appeal from the primary Judge by either the person against whom extradition is sought or by the extradition country.
The proceeding before the magistrate, the second respondent, was administrative in nature and did not involve the exercise of the judicial power of the Commonwealth: Schlieske supra at 422, Zoeller supra at 290. The judicial power was first enlivened in the proceeding before the primary Judge. The central provision at that stage was sub-s. 21 (1) of the Act. This states:
"21.(1) Where a magistrate of a State or Territory makes an order under subsection 19 (9) or (10) in relation to a person whose surrender is sought by an extradition country:
(a)in the case of an order under subsection 19 (9) - the person; or
(b)in the case of an order under subsection 19 (10) - the extradition country;
may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order."
Section 15C of the Acts Interpretation Act 1901 provides that where a provision of a statute, expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter, that provision shall be deemed to vest that court with jurisdiction in that matter. Section 19 of the Federal Court of Australia Act 1976 provides that this Court has such original jurisdiction as is
vested in it by laws made by the Parliament (being jurisdiction in respect of matters arising under laws made by the Parliament).
It will be observed that sub-s. 21 (1) of the Act speaks of an application "for a review" by a court of the order made by the magistrate. The expression "review" when used to identify the exercise of the judicial power of the Commonwealth in respect of an administrative decision, is not without its difficulties. They have been recently discussed by the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1. At 12, Mason CJ, Brennan and Toohey JJ said that what emerged from the judicial decisions and from statutes was that "review" has no settled pre-determined meaning; it takes its meaning from the context in which it appears.
Here, that context is augmented by sub-s. 21 (2). This states:
"21.(2) The Court may, by order:
(a)confirm the order of the magistrate; or
(b)quash the order and direct a magistrate to
(i)in the case of an order under subsection 19 (9) - order the release of the person; or
(ii)in the case of an order under subsection 19 (10) - order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5)."
Appellate jurisdiction is provided for in sub-s. 21 (3). An appeal may be made to the Full Court of this Court by the person whose surrender is sought, or by the extradition country. This is so whether or not the appellant was the applicant for review under sub-s. 21 (1).
In the notice of appeal in the present case, the first respondent was identified as "Attorney-General (Commonwealth) for the United States of America". The appellation of the cross-appellant in the notice of cross-appeal was identical. It is true that where communications take place between officers of the Department of the Attorney-General on behalf Australia and officers of an extradition country in relation to proceedings for surrender of a person there is taken to be a relationship of solicitor and client between the officers of Australia and those of the extradition country. Section 50 of the Act so provides. Nevertheless, in a case such as the present, this does not mean that the party on the record in an appeal under sub-s. 21 (3) is to be any other than the extradition country seeking surrender. Accordingly, and there seems to have been no real opposition to this course when the point was agitated during the hearing of the appeal, the identity of the first respondent to the appeal and of the cross-appellant should be amended to "United States of America". This corresponds to the form taken by proceedings in other cases, such as Zoeller supra, and United States of America v Holt (1994) 126 ALR 544.
On an application for review under sub-s. 21 (1), as upon an appeal to this Court under sub-s. 21 (3), and upon a further appeal by special leave of the High Court, para. 21 (6) (d) has effect. It states that the court to which the application or appeal is made "shall have regard only to the material that was before the magistrate"; cf Zoeller supra at 292. This, then, gives further content to the notion of "review" for which provision is made in sub-s. 21 (1).
The restriction in para. 21 (6) (d) has particular point in the light of the restriction which governs the conduct of the proceedings before the magistrate, as provided by sub-s. 19 (5). This states:
"19.(5) 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."
Before the primary Judge, it was submitted that sub-s. 19 (5) was invalid. His Honour rejected that submission: 52 FCR at 249-51. Two particular difficulties with sub-s. 19 (5) may arise. The first would be at the level of the administrative proceedings before the magistrate and concern possible excess of jurisdiction and the effect thereon of the principles discussed in Richard Walter supra and R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. The second would concern the efficacy of such a restriction upon the exercise by the Court of the judicial power of the Commonwealth in the light of the principle that the power of the Parliament to enact laws prescribing the rules of evidence and procedure to ascertain jurisdictional and constitutional facts at least goes so far as to cast the onus of proof upon a particular party: Milicevic v Campbell (1975) 132 CLR 307 at 316-7, 318-9.
It is unnecessary for us to express any concluded view upon the matter because, in the Full Court, counsel for the appellant renewed his submission as to invalidity only as a formality.
As we have indicated, before the primary Judge both the appellant and first respondent had some success, the decision of the magistrate being quashed in respect of some offences and upheld in respect of others. Some of the grounds put forward by the appellant, but not all of them, were advanced again before us. In addition, several propositions were put forward for the first time. These involved issues of law and construction of the materials. Counsel for the respondents was able to seek to meet them without any request for an adjournment.
Section 19
In order to appreciate what is involved in several of the submissions, it is necessary to have in mind the conditions which are attached by the balance of s. 19 to the discharge by the magistrate of his obligation under sub-s. 19 (1), where it has arisen, to conduct proceedings to determine whether the person in question is eligible for surrender. Sub-section 19 (2) stipulates that, for the purposes of sub-s. 19 (1), the person will be eligible for surrender only if four conditions are met. The first two, in paras. (a) and (b), require that certain documents have been produced to the magistrate.
Paragraph (b) is concerned with documents in addition to those already required by para. (a). It will become apparent that para. (b) is a provision relating to s. 11 and the modification of the Act by regulations giving effect to treaty obligations as to provision of documents.
Paragraph (c) requires the magistrate be satisfied of what in argument was described as the requirement of dual criminality. The final condition is couched negatively, and is concerned with an extradition objection.
The text of sub-s. 19 (2) is as follows:
"19.(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a)the supporting documents in relation to the offence have been produced to the magistrate;
(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate;
(c)the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d)the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence."
[Emphasis supplied]
Sub-section 19 (4) contemplates that documents may have been produced to the magistrate in purported compliance with para. (a) or (b) of sub-s. 19 (2), but with a deficiency or deficiencies of a minor nature. Sub-section 19 (4) states:
"19.(4) Where, in the proceedings:
(a)a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b)the magistrate considers the deficiency or deficiencies to be of a minor nature;
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied."
Counsel for the first respondent submitted that sub-s. 19 (4) shows that the Act contemplates that the magistrate may make the determination under s. 19 on documents which are in a different form to those which accompanied the extradition request and may have been before the Attorney-General when the Attorney-General exercised the discretion given by s. 16 to give the notice in writing to the magistrate that the extradition request had been received.
The Time Factor and Accompanying Documents
It is here that there arises the first point of construction upon which the appeal turns. Before the primary Judge it was contended that certain material in support of the extradition request was wrongly admitted by the magistrate because it had not accompanied the extradition request as required by the Treaty. In particular, it was said that the affidavit of Mr J. Stephen Ramey, Assistant Legal Attache to the United States Embassy in Canberra, had sworn an affidavit on 30 March 1993. This was in advance of the proceedings before the magistrate, but several months after the extradition request had been received and the Attorney-General had given notice under s. 16. In his affidavit, Mr Ramey stated that he provided therein, as information in support of the request made pursuant to Diplomatic Note No. 98 dated 30 December 1992, the text of s. 2314 of Title 18, U.S.C.. This states as the penalty a fine of not more than $10,000 or imprisonment of not more than ten years or both. The significance of that particular will become apparent later in these reasons.
Article XI of the Treaty specifies that requests for extradition shall be made through the diplomatic channel and shall be "supported by" documents, a description of which is then set out. Paragraph (5) of Article XI provides that the documents which "accompany" an extradition request shall be received and admitted as evidence in extradition proceedings if, in the case of a request from the United States, they purport to be signed or certified by persons answering a certain description and purport to be authenticated by the oath or affirmation of a witness or to be sealed with certain seals. This gives specific content to and thus, in a sense, supplements, sub-s. 19 (7) of the Act. Sub-section 19 (7) indicates that which will be treated as due authentication of documents. With an exception not yet relevant, the Act provides that any document which is "duly authenticated" is admissible in the proceedings before the magistrate (sub-s. 19 (6)).
The text of Article XI, particularly para. (5), which speaks of receipt and admission as evidence "in extradition proceedings" of the documents in question, is consistent with the proposition that the practical matter with which the Article is concerned is that at each stage of the extradition process the necessary documents be before the relevant decision maker. As regards the function of the magistrate under s. 19, such a view is consistent also with the express provision in sub-s. 19 (4) of the Act, which we have set out above.
A request by the United States for extradition is initiated at inter-government level, but it has a continuing effect with the implementation of procedures leading to the issue by the Attorney-General of a warrant for the surrender of the person to the United States. Such warrants are issued pursuant to s. 23 and follow a determination by the Attorney-General under sub-s. 22 (2) that the person is to be surrendered. The Attorney-General is obliged by the sub-section to make that determination as soon as is reasonably practicable, having regard to the circumstances, after the person has become an "eligible person", that is to say, has been committed to prison by order of the magistrate made, relevantly, under sub-s. 19 (9). The committal to prison is consequential upon the magistrate's determination that the person is "eligible for surrender" under s. 19.
When the matter is before the magistrate, the request for extradition is current. The question at that stage is whether particular documents sought to be tendered are documents which can be described as having accompanied the extradition request, in terms of Article XI. We would not interpret expressions such as "supported by" and "accompany" in Article XI as requiring physical connection. Rather, there is a temporal conjunction which must exist before the magistrate makes the determination under s. 19 if documents are to be received and admitted as evidence in the proceedings before the magistrate pursuant to para. (5) of Article XI. That view of the matter is consistent with unreported English authority discussed by Burchett J in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 119. See also Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 402-3. We should add that the English decisions, and Winkler itself were decisions under provisions other than those with which we are concerned.
We note that in Winkler at 119, Burchett J said he had some difficulty with the proposition that the words "accompanied by" in this context might be so construed as to be satisfied by a document received in time for presentation to the magistrate. His Honour referred to s. 15 of the 1966 Act, which like s. 16 of the present legislation, provided for the issue by the Attorney-General of a notice. His Honour said:
"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."
This passage was relied upon in argument by counsel for Mr Todhunter. However, counsel for the United States pointed to the procedure adopted in Harris v Attorney-General of the Commonwealth supra. He went on to submit that an inadequacy in the documentation as it existed when the Attorney-General gave notice under s. 16 might be one thing, whilst such a deficiency when the magistrate was making the determination under s. 19 was another. A flaw in the decision making process of the Attorney-General might be attacked at that stage by an application under s. 39B of the Judiciary Act 1903. In the present case, this had not happened. Failure to take that step did not signify that any defect remained available to vitiate the determination before the magistrate: cf Athanassiadis v Government of Greece [1971] AC 282 at 289, referred to in Winkler at 94-5, 118.
The task of the magistrate under s. 19 commenced upon satisfaction, inter alia, of the condition precedent that the Attorney-General had given a notice under sub-s. 16 (1): sub-s. 19 (1) (b). The obligation of the magistrate was to conduct proceedings to determine whether the person in question was eligible for surrender. That required the satisfaction of the four conditions set out in sub-s. 19 (2). As already outlined, paras. (a) and (b) of sub-s. 19 (2) were directed to the production to the magistrate of certain documents.
In our view, the submissions for the United States on this point should be accepted. Accordingly, we proceed on the footing that the documentation before the magistrate properly included the affidavit of Mr Ramey sworn 30 March 1993.
Article XI and s. 19 of the Act
We have referred to the description in paras. (a) and (b) of sub-s. 19 (2) of documents to be produced to the magistrate. Paragraph (a) refers to production to the magistrate of the "supporting documents in relation to the offence" and para. (b) to any other documents, as required for "production to the magistrate" by limitations, conditions, exceptions or qualifications subject to which the Act applies in relation, in this case, to the United States.
The legislative scheme thus is to require satisfaction of para. (a) as to "supporting documents" and then to pose the question whether, in addition to the documents there referred to, any other documents must be produced to the magistrate in order to comply with para. (b). In cases where the offence is one of which the person is accused rather than one of which the person has been convicted, the phrase "supporting documents" is defined in paras. (a) and (c) of sub-s. 19 (3). These paragraphs state:
"(a)if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
...
(c)in any case:
(i)a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii)a duly authenticated statement in writing setting out the conduct constituting the offence."
Paragraphs (2) and (3) of Article XI require that "requests for extradition" be supported by certain documents. As to some of them, the requirement foreshadows that which is required by para. 19 (2) (a) of the Act to have been produced to the magistrate as "supporting documents" within the definition in sub-s. 19 (3).
In other instances, documents which are required by Article XI to support requests for extradition are not "supporting documents" for the purposes of para. 19 (2) (a) of the Act. The extradition request is received by the Attorney-General and acted upon in accordance with s. 16 of the Act. We have referred earlier in these reasons to the steps involved. But paras. (2) and (3) of Article XI specify documents which are to support the request for extradition, and do not require the production thereof to the magistrate. Yet the subject matter of para. 19 (2) (b) of the Act is documents the production of which to the magistrate is required by the applicable limitations, conditions exceptions or qualifications.
The question thus arises whether, as to those documents identified in paras. (2) and (3) of Article XI but which are not "supporting documents" so as to attract para. 19 (2) (a) of the Act, para. 19 (2) (b) has any application.
We set out below the text of paras. (2) and (3) of Article XI highlighting those portions which appear to duplicate or at least overlap with the requirements flowing from the definition of "supporting documents" in sub-s. 19 (3) of the Act:
"(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 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."
It may be that a requirement of production to the magistrate of all these documents is implicit in para. (5) of Article XI. We referred to para. (5) earlier in these reasons. It states, so far as relevant, that if the documents meet certain criteria:
"The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings ..."
On its face, this refers to reception of the documents, if tendered, as evidence of their contents. The same subject, of admission into evidence, is dealt with in sub-ss. 19 (6), (7) of the Act. But read literally, para. (5) of Article XI is not mandatory in the sense of requiring production to the magistrate.
However, it has been said that a provision such as para. (5) should not receive an overly technical construction; see the authorities collected by the Full Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR at 401-2. We are prepared to proceed on the footing that the requirement of production to the magistrate is implicit, so that to those documents to which para. 19 (2) (a) of the Act does not apply, para. (b) thereof does apply.
We turn first to the question of penalty. Here para. (a) of sub-s. 19 (2) applies, by dint of the definition in sub-s. 19 (3) of "supporting documents".
Penalty
It will be apparent that sub-para. (2) (d) of Article XI requires a statement of the law describing the punishment for the offence, and sub-para. 19 (3) (c) (i) of the Act requires a duly authenticated statement in writing setting out the penalty applicable in respect of the offence. It is here that the issue as to the sufficiency of the description of penalty arises.
The 23 counts identified as counts 86 - 108 turn upon ss. 2 and 2314 of Title 18, U.S.C.. The portion of s. 2314 setting out the penalty, namely a fine of not more than $10,000 or imprisonment for not more than 10 years or both, was supplied only in the affidavit of Mr Ramey sworn 30 March 1993. As we have indicated, a point was taken that this was provided too late for it to qualify as a supporting document for production to the magistrate in the proceedings which commenced on 30 March.
It follows from what we have said earlier in these reasons that that point is not made out and this has the result that there was no failure in respect of counts 86 - 108.
The same is true of count 85. This turns both upon s. 2314 and s. 371. The count was that beginning at a date unknown and continuing up to and including 25 June 1985, within the Southern District of California and elsewhere, Mr Todhunter and another person did conspire with each other and with other persons known and unknown to commit offences against the United States, namely knowingly to transport and cause to be transported money of the value of $5,000 or more in interstate and foreign commerce, which money had been taken by fraud, in violation of s. 2314.
Section 371 stipulates a penalty of a fine of $10,000 or imprisonment for not more than 5 years, or both. The section goes on to state that if the offence, the commission of which is the object of the conspiracy, is a misdemeanour only, the punishment for the conspiracy shall not exceed the maximum punishment provided for the misdemeanour.
Here, the offence, the commission of which was the object of the conspiracy, was that in s. 2314. Even if it were classified as a misdemeanour, the qualification to s. 371 would not operate. This is because the penalty specified in s. 2314 is greater, rather than less, than that specified in s. 371. Again, and for the reasons given earlier, the reliance upon Mr Ramey's affidavit for the specification of the penalty under s. 2314 is not open to objection.
There remains count 109. This too turns upon s. 371, but in a manner unlike count 85. Section 371 states:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanour only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanour."
[Emphasis supplied]
Count 85 was concerned with a conspiracy to commit an offence against the United States, namely that created by s. 2314. Hence, the importance of a comparison between the offence specified in s. 2314 and s. 371. Count 109 has as the object of the conspiracy, not the commission of some other offence against the United States (thereby drawing in the provision creating that other offence) but, within the terms of s. 371 itself, "to defraud the United States". In this latter class of case, the penalty is found within the four walls of s. 371. Here there is no need for reliance upon the Ramey affidavit.
The objections taken as to the specification of penalty were not taken before the primary Judge, so we did not have the benefit of any treatment of the subject by his Honour. Nevertheless, for the reasons we have given, we believe the plain answer is that none of these objections is made out.
Limitations
The requirement in sub-para. (2) (d) of Article XI that a request for extradition be supported by a statement of the law concerning limitation of legal proceedings is not repeated in the definition of "supporting documents" in sub-s. 19 (3) of the Act.
The affidavit of Mr Stephen W. Peterson sworn 11 December 1992 (that is to say after the arrest of Mr Todhunter on 5 or 6 November, but well before the issue of Diplomatic Note No. 98 dated 30 December 1992) sets out on pp. 3 and 4 the provisions of ss. 3282 and 3292 of the Code which are stated to apply to ss. 2314 and 371. The relevant text is set out in full on those pages.
It follows, in our view, that there was compliance with the requirement of Article XI of a statement of the law relating to the limitation of legal proceedings.
A further and different issue arises if the question is whether in the present case prosecution for any of the offences has become barred by lapse of time according to the laws of the United States. If that be so then Article VII states that extradition "shall not be granted". However, as we have indicated, whether extradition is to be granted is a matter for the Attorney-General under s. 22. The Attorney-General would have to be satisfied that circumstances do not exist which have the effect that the surrender of Mr Todhunter must be refused because of the operation, through s. 11, of an exception in the bilateral extradition treaty: sub-para. 22 (3) (e) (i), (iii) of the Act. Unless the Attorney-General was so satisfied, the Attorney-General could not make a determination adverse to Mr Todhunter under sub-s. 22 (2), that is, for his surrender. But that is a matter not before the Court in this proceeding, and the relevant stage of the application of s. 22 has not been reached.
Before the primary Judge there was much debate as to the meaning to be given to the materials before the magistrate insofar as they would bear upon this question, and as to the reception of evidence further to the materials which had been before the magistrate. In varying forms, these disputes were reagitated before us.
However, it follows from what has been said above, that in truth, the dispute was an empty one and based upon a misconception of the interrelation between Articles VII and XI, and ss. 11, 19 and 22 of the Act.
In the end, the primary Judge declined to hold that there had been non-compliance in respect of limitations requirements. We have reached the same conclusion.
Reasonable Grounds for Belief
Before us, as before the primary Judge, there was great contention as to the operation of sub-para. (3) (c) of Article XI. The text of the sub-paragraph is not repetitive of anything found in the definition of "supporting documents" in sub-s. 19 (3). Therefore, this requirement of Article XI is only one for the production to the magistrate of "any other document" within the meaning of para. 19 (2) (b) of the Act. Again, this conclusion only follows because of the particular construction we have been prepared to give to para. (5) of Article XI.
The contents of sub-para. (3) (c) of Article XI should be set out again:
"(3)(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."
The primary Judge held that what was required was a description of facts providing reasonable grounds for believing that each element of the United States offence for which extradition was sought had been committed. Further, because extradition was sought in relation to a number of offences, his Honour held that there had to be in the material a description of facts providing reasonable grounds for believing that each of the offences had been committed and that Mr Todhunter had committed it: 52 FCR at 252-253.
The primary Judge rejected the submission that when considering sub-para. (3) (c) of Article XI, the magistrate, and a court on review, was neither required nor permitted to consider the elements of the United States offences or whether the description of the facts gave rise to the offences charged in the United States. Rather, his Honour held that, given the generality of the material constituting the description of the facts presented in the proceedings before the magistrate, the magistrate was unable to come to a reasonable belief that any of the substantive offences as to counts 86 - 108 had been committed.
The appellant supports, and the respondent, by its cross-appeal, contests, that construction of the Article.
Counsel for the respondent contrasted the use in sub-para. (3) (c) of the phrase "an offence has been committed" with the use of the definite article in the phrases "the offence" in sub-para. (3) (a) and sub-paras. (2) (b), (c) and (d). However, the phrase "an offence has been committed" is followed by the phrase "that the person sought committed it". This suggests that what is involved is not notional, but is the commission of an offence by the person whose extradition is sought in respect of commission of that crime. That, in turn, directs attention to the lex loci delicti in the United States.
Counsel also referred to the Treaty in its form before amendment by the Protocol. The contrast was drawn between Article XI as it now stands, and the previous paras. (2) and (3). These read:
"(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 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."
[Emphasis supplied]
Sub-paragraph (2) of the previous Article XI uses the phrase "a statement of the facts of the case" which is not reproduced in the current Article. The phrase which we have emphasised in sub-para. (3) certainly refers to the supply of evidence which would justify trial or committal if the offence had been committed in the requested state. To an extent, that requirement overlaps with the requirement imposed by the Act itself, in the definition of "supporting documents", for provision of a duly authenticated statement in writing setting out the conduct constituting the offence (sub-para. 19 (3) (c) (ii)). That phrase in turn is expanded by sub-s. 10 (2) whereby a reference to conduct constituting an offence is a reference to the "acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed". Further, the present sub-para. (2) (b) of Article XI requires a description of the conduct constituting the offence.
All of this suggests that sub-para. (3) (c) of Article XI was directed to requiring something more than the supporting documents, namely, an affidavit, statement or declaration which gave a description of the facts and set forth reasonable grounds for believing that the person for whom the extradition was sought had in fact committed an offence under the applicable law of the United States.
It is undoubtedly the case that the provision of a statement setting out the conduct constituting the offence, being the acts or omissions or both by virtue of which the offence has or is alleged to have been committed, to which we have referred above, is significant for the operation of sub-para. 19 (2) (c). This deals with what has been called the dual criminality requirement. The magistrate is to be satisfied that if the conduct constituting the offence "or equivalent conduct" had taken place in the part of Australia where the proceedings are being conducted and otherwise as described in para. 19 (2) (c), an extradition offence would have been committed in that part of Australia. The phrase "equivalent conduct" is given further content by sub-s. 10 (3). The concept of "double criminality" is explained by Deane J in Riley v The Commonwealth (1985) 159 CLR 1 at 18-19.
But that is not to foreclose the operation of sub-para. (3) (c) of Article XI according to its terms, even if the result is to add to the task of the state seeking extradition.
Accordingly, we would reject the interpretation sought to be placed upon the sub-paragraph by the respondent, and reach the same conclusion as the primary Judge on this particular point.
It is then necessary to interpret the terms used in the sub-paragraph, in particular the phrase "setting forth reasonable grounds for believing ...". In that regard, our attention was drawn to sub-ss. (4) and (5) of s. 11 of the Act.
Sub-sections 11 (4), (5) of the Act
The text of sub-ss. 11 (4), (5) is as follows:
"11.(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19 (2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19 (2) unless the prima facie evidence test is satisfied.
(5)For the purposes of subsection (4):
(a)a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to:
(i)justify trial of the person in relation to an offence against a law in force in the part of Australia;
(ii)justify committal of the person for trial in relation to such an offence;
(iii)establish a prima facie case that the person committed such an offence; and
(b)a reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence."
Sub-section 11 (4) would come into play in the present case if, by reason of the operation of sub-s. 11 (1), the Act applied subject to a limitation, condition, qualification or exception which had a certain effect. This would be that Mr Todhunter is not eligible for surrender to the United States, within the meaning of s. 19, unless evidence be provided that would be sufficient to justify trial or committal for trial in relation to an offence against a law in force in New South Wales, or would establish a prima facie case that he had committed such an offence, upon the hypothesis that the conduct constituting the extradition offence had taken place in New South Wales.
Is there such a limitation, condition, qualification or exception in the Treaty? As we have indicated, there is the requirement in sub-para. (2) (b) of Article XI that requests for extradition be supported by a description of the conduct constituting the offence. That falls far short of a requirement that a person is not eligible for surrender for the purposes of sub-s. 19 (2) unless evidence be provided that would be sufficient to justify trial, committal or the establishment of a prima facie case in respect of that notional Australian offence, if the conduct of the person constituting the extradition offence had taken place in a part of Australia.
Attention may also be paid to sub-para. (3) (c) of Article XI. But, as we have indicated, that is directed to the provision of material setting forth reasonable grounds for believing that an offence has been committed by the person in the country seeking extradition. That is not a limitation, condition, qualification or exception to which sub-s. 11 (4) of the Act is directed. It follows that the sub-section is not called into operation and there is no scope for the modification for which it provides. Accordingly, the sub-section should be put to one side.
Counsel for the appellant submitted that subsection 11 (4) "operates on" Article XI (3) (c) so as to transmute the "test" of "reasonable grounds" in (c) into the "prima facie evidence test" spelled out in para. 11 (5) (b) of the Act. This, counsel submitted, presents familiar criteria of the existence of sufficient grounds to put the person on trial.
We do not accept that submission. Examples of the operation of s. 11 in the manner contended for by the appellant are supplied by Unkel v Director of Public Prosecutions (1990) 95 ALR 44, and United States of America v Holt (1994) 126 ALR 544. Both cases concerned review of orders made by a magistrate that a person was eligible for surrender to the United States. At the relevant times, the Treaty had not been amended by the Protocol. This meant that Article VI was in force. It was deleted by the Protocol. The Article stated:
"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."
Therefore, there was an exception which operated by requiring satisfaction of the sufficient evidence test within the meaning of sub-s. 11 (4). The concern was with the sufficiency of evidence if the conduct had taken place in Australia, to justify trial or committal. That is not the present point on this appeal.
In Unkel at 47, Pincus J said:
"My view of the effect of these provisions on Art. VI, put broadly, is as follows. Sub-section (1) makes Art. VI apply to this case, but sub-s. (4) requires one to read the Article down in accordance with sub-s. (5) (b) - i.e. to read it as if it required the provision of evidence which, if uncontroverted, would be enough to put the person on trial or give grounds for inquiry by a court, if the conduct complained of had taken place in Australia."
We reject the submissions for Mr Todhunter as to the relationship between sub-para. (3) (c) of Article XI and sub-ss. 11 (4), (5) of the Act. However, we have already also rejected the submission for the United States that para. (c) is to be read in such a fashion as to bear upon the satisfaction of the magistrate under sub-s. 19 (2) (c) of the Act as to double criminality, rather than be given effect according to its terms, with reference to the offence said to have been committed in the United States.
Application of the criteria in
sub-paras. (2) (b), and (3) (c) of Article XI
Counsel for Mr Todhunter submitted that there had been before the magistrate a plethora of material which required analysis and judgment in order to determine what might be extracted from it as a "description of the conduct" within the meaning of sub-para. (2) (b) and a "description of the facts" setting forth the reasonable grounds for belief required by sub-para. (3) (c). He referred to what was said in Linhart v Elms (1988) 81 ALR 557 at 582, with reference to sub-para. 17 (6) (a) (i) (C) of the 1966 Act. This provision bore some relation to the provisions presently in issue.
The appellant supported the finding of the primary Judge as to the inadequacy of the 23 counts in respect of which the Court quashed the determination of the magistrate. His Honour dealt with that aspect of the matter in detail: 52 FCR at 251-6. In particular, his Honour concluded that the material before the magistrate did not set forth "reasonable grounds" for believing that the offences relating to interstate and foreign transportation of money obtained by fraud had been committed by Mr Todhunter. There was insufficient linkage of the transportation of the money with Mr Todhunter.
We have reviewed the material in the light of the analysis of it by the primary Judge, and the criticism directed to that analysis. We will not burden this already lengthy judgment with further recitation of detail to supplement that set out in the reasons of the primary Judge. We have concluded that his Honour was not in error in the construction he placed upon the requirements of Article XI, or upon the application of the Article upon review of the decision of the magistrate.
There remain counts 85 and 109. Here, the primary Judge dismissed the attack upon the determinations by the magistrate and the appellant challenges his Honour's decision in these respects.
Count 85 alleges conspiracy to transport money in interstate and foreign commerce, the money having been taken by fraud and the conspiracy being from an unknown date to 25 June 1985. His Honour referred to the treatment of count 85 in the affidavit of Mr Peterson and went on (52 FCR at 256):
"Title 18 USC s 2314 proscribes, inter alia, the transport in interstate or foreign commerce of money of a value of $5000 or more knowing the same to [have] 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 involves 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 para. 2 of that count occurred, and that Mr Todhunter was a party to it."
Paragraph 2 in 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 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 $5000 or more, in interstate and foreign commerce, which money had been taken by fraud, in violation of Title 18, United States Code, Section 2314."
Counsel for the appellant took us through the affidavits of Caffey, Vaccaro, Dunn and Batza referred to by the primary Judge. Counsel did so from the starting point that the relevant criterion against which they were to be measured was sub-para. (3) (c) of Article XI, read through the prism of sub-para. 11 (5) (b) of the Act. According to that view, what was required was the provision of evidence which, if uncontroverted, provided sufficient grounds to put Mr Todhunter on trial in New South Wales, on the footing that the conduct had taken place in that part of Australia.
For reasons which we have given above, we do not place any such qualification upon the operation of the words of sub-para. (3) (c). The relevant phrase should be applied according to its ordinary meaning, as it was applied by the primary Judge.
Approaching the matter in this way, and bearing in mind that what is required is a description of facts "setting forth" reasonable grounds for having a particular belief, we have reviewed the materials. Having done so, we see no reason to depart from the conclusion reached respecting them by the primary Judge.
We note that the primary Judge referred to the discussion by the High Court, with reference to United States authority, of the implied authority, in relation to the common law offence, of one conspirator to act or speak on behalf of another. In Ahern v The Queen (1988) 165 CLR 87, the High Court held that where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will be admissible to prove the participation of the accused in the conspiracy only where it is established that (i) there was a combination of the type alleged, (ii) the acts were done or the words uttered by a participant in furtherance of its common purpose and (iii) there is reasonable evidence, apart from the acts or words, that the accused was also a participant.
The primary Judge said that he had had regard to those requirements. It may be that the specification in sub-para. (3) (c) of Article XI of reasonable grounds for belief are less stringent than the test applied at a trial on a charge of conspiracy. But, if so, the result would only be to strengthen in the present case the conclusion, adverse to the appellant, which was reached by the primary Judge.
There remains the conspiracy alleged as count 109, being a conspiracy from an unknown date to September 1990 to defraud the United States. The primary Judge concluded (52 FCR at 256) that the affidavit evidence, particularly that of Dunn and Batza, was sufficient compliance with the requirements of sub-para. (3) (c). No ground has been made out to disturb that conclusion.
Dual Criminality
The appellant submitted that, in respect of all of the counts, there was insufficient material upon which the magistrate could properly have been satisfied as to dual criminality within the meaning of para. 19 (2) (c) of the Act.
There was, it was submitted, no duly authenticated statement in writing setting out the conduct constituting the offence, within the meaning of para. 19 (3) (c) and, if it mattered, no description of the conduct constituting the offence within the meaning of para. (2) (b) of Article XI.
Consistently with what we have held in the immediately preceding section of this judgment, there is no substance in that contention.
As to counts 85 and 86 - 108 (but not 109) it was submitted that there was no equivalent offence under the law in force in New South Wales, whether Commonwealth or State. This submission was not put to the primary Judge.
Section 2314 of Title 18, U.S.C., is concerned with activities which are identified as taking place "in interstate or foreign commerce". That is indicative of the exercise by the Congress of the federal legislative power to regulate commerce with foreign nations and among the several States (Article 1, section 8, para. 2 of the Constitution of the United States).
Paragraph 19 (2) (c) of the Act requires consideration of what the position would be if the conduct constituting the offence had taken place, in this case, in New South Wales, or if "equivalent conduct" had so occurred.
Sub-paragraph (3) (b) of Article II of the Treaty provides that an offence shall be an extraditable offence:
"whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for
the purpose of establishing jurisdiction in a United States federal court."
The intent of this provision is to ensure that it will be no obstacle to extradition of a person accused of contravening United States federal law that the offence has jurisdictional elements not likely to be found in offences in the laws of other countries: Riley v The Commonwealth, supra at 11. Article II operates through the medium of the 1988 Regulations as amended by the 1992 Regulations, to qualify the definition of "extradition offence" in s. 5 of the Act. That has consequential effect upon the task for the magistrate under s. 19 to determine whether a person is eligible for surrender in relation to an "extradition offence".
Counsel for the United States relied upon several laws in force in New South Wales as answering the requirement of para. 19 (2) (c) of the Act. He referred to two "money laundering" offences, s. 73 of the Confiscation of Proceeds of Crime Act 1989 (NSW) and s. 81 of the Proceeds of Crime Act 1987 (Cth), particularly to the former.
In respect of these statutory offences, the appellant submitted that they involved acts or omissions which were both different and additional to those in counts 85 and 86 - 108. He referred to the analysis, with reference to Irish authority, by Deane J in a well known passage in Riley, supra at 18-19.
Before turning to s. 73 of the New South Wales Act, it is convenient to set out the appropriate portions of s. 2314 of Title 18, U.S.C.:
"Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or ...
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person or persons to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more; or ...
...
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
To those words it is necessary to apply para. (3) of Article II of the Treaty so as to remove the requirement for proof of "interstate transportation" with the use of the mails or other facilities affecting interstate or foreign commerce.
Sub-section 73 (2) of the New South Wales statute makes it an offence for a person to engage in "money laundering". Sub-sections 73 (3) and (4) state as follows:
"73(3) A person shall be taken to engage in money laundering if, and only if:
(a)the person engages, directly or indirectly, in a transaction that involves money, or other property, knowing that the money or property is proceeds of a serious offence; or
(b)the person receives, possesses, conceals, disposes of or brings into New South Wales any money, or other property, knowing that the money or property is proceeds of a serious offence.
(4)A person shall not be convicted of an offence under this section unless the prosecution proves beyond reasonable doubt that, at the time the person:
(a)engaged in a transaction involving money or property; or
(b)received, possessed, concealed, disposed of or brought into New South Wales money or property,
the person knew the money or property was proceeds of unlawful activity."
A "transaction" includes the receiving or the making of a gift (sub-s. 73 (1)). The phrase "serious offence" is defined in s. 7 and means an offence, including a common law offence, against the laws of New South Wales, which may be prosecuted on indictment (s. 7).
Counsel for the United States tested the proposition that the magistrate might properly have been satisfied pursuant to para. 19 (2) (c), by looking to count 86. This is in the following terms:
"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; in violation of Title 18, United States Code, Sections 2314 and 2."
Counsel submitted that the stealing and taking of money by fraud would be a "serious offence" within the definition of s. 7. That really was not disputed.
Counsel submitted that to transfer funds by means of wire transfer, knowing the funds to have been stolen and taken by fraud, would be to engage in a transaction involving money or other property knowing that, within the meaning of para. 73 (3) (a), the money or property was proceeds of a serious offence.
However, it may be that para. (3) of Article II of the Treaty, whilst removing for this purpose from the United States law the requirement of transportation that is part of "interstate or foreign commerce", leaves a requirement of transportation or movement in some lesser sense, by wire transfer of money known to have been stolen, converted or taken by fraud. We are prepared to assume that this is so, without deciding the point.
In New South Wales, conspiracy to commit a crime is itself a common law misdemeanour; a person convicted of it is liable to fine and imprisonment at the discretion of the court; and in the case of a conspiracy to commit a statutory offence, only in rare circumstances would it be proper to impose a penalty exceeding the maximum fixed for the principal offence; see Watson and Purnell, Criminal Law in New South Wales, vol. 1 at para [1137] and cases there cited.
After para. (3) (b) or article II has done its work, s. 2314 of Title 18, USC is left prohibiting, relevantly, transporting or movement by wire transfer of money known to have been stolen. In terms of sub-s. 73 (3) of the New South Wales Act, the conduct described in count 86 meeting that description is either one or both of (a) engaging in a "transaction" involving money known to be the proceeds of a serious offence, or (b) the disposing of or bringing into New South Wales of money known to have been the proceeds of a serious offence. It seems to us that the sending of money "by wire transfer" necessarily involves the creation of rights and obligations such that the process falls easily within the concept of "transaction".
Counsel for the United States submitted that, in respect of count 86 the magistrate was properly satisfied of the matter referred to in para. 19 (2) (c) of the Act. In the light of what we have said above, we agree. The appellant did not, in reply, contest that if that proposition held good, a favourable consequence with respect to the dual criminality issue ensued for the United States as regards the other counts.
Conclusion
The first respondent should be identified as "United States of America". Otherwise, the appeal should be dismissed. The costs of the United States should be paid by the appellant. On the appeal there was no appearance for the second respondent. The cross-appeal should be dismissed. There should be no separate order for costs in respect of the cross-appeal.
In order 4 of the orders made 1 August 1994, the primary Judge reserved costs of the proceeding before him. Those costs ordinarily should reflect the outcome on the appeal. But there may be special considerations with which the primary Judge is familiar. If the matter is unresolved between the solicitors, the matter of costs of the proceeding at first instance may be relisted before a Judge of the Court.
I certify that this and the preceding fifty eight (58) pages are a true copy of the reasons for judgment of the Court.
Associate:
Date: 12 April 1995.
Counsel and solicitors Mr F.S. McAlary QC and
for the appellant: Dr D.A. Chaikin
instructed by Stojanovic
& David.
Counsel and solicitors Mr P. Roberts instructed by
for the first respondent: Director of Public
Prosecutions.
Dates of hearing: 15, 16, 21 February 1995.
Date of judgment: 12 April 1995.
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