Truong v The Queen

Case [2004] HCA 10

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

HONG PHUC TRUONG  APPELLANT

AND

THE QUEEN  RESPONDENT

Truong v The Queen [2004] HCA 10

4 March 2004
M226/2002

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

O P Holdenson QC with J B McDougall for the appellant (instructed by Clarebrough Pica)

P A Coghlan QC with K E Judd for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Interveners:

D M J Bennett QC, Solicitor‑General of the Commonwealth with M M Gordon intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 28 May 2003

D M J Bennett QC, Solicitor‑General of the Commonwealth with M M Gordon SC and L G De Ferrari intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 3 December 2003

R J Meadows QC, Solicitor‑General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney‑General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia)) at the hearing on 3 December 2003

P M Tate SC, Solicitor‑General for the State of Victoria with K L Emerton intervening on behalf of the Attorney‑General for the State of Victoria (instructed by Victorian Government Solicitor) at the hearing on 3 December 2003

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Truong v The Queen

Extradition – Extradition to Australia from other countries – Extradition Act 1988 (Cth), Pt IV (ss 40‑44) – Speciality – Offences for which extraditable person surrendered – Request for extradition for offences including murder, kidnapping, conspiracy to commit murder and conspiracy to kidnap – Appellant surrendered to Australia in relation to conspiracy to commit murder and conspiracy to kidnap – Appellant charged and tried in Supreme Court of Victoria for murder and kidnapping – Whether offences of murder and kidnapping were offences of which the appellant could be convicted on proof of the conduct constituting the offences of conspiracy to commit murder and conspiracy to kidnap.

Extradition – Speciality – Speciality arrangement between Australia and the United Kingdom – Speciality arrangement under Extradition Act 1989 (UK) – Whether breach of speciality arrangement.

Constitutional law – State Supreme Court – Jurisdiction of the Supreme Court of Victoria – Extraditable person "shall not ... be ... tried in Australia" for any offence other than any offence in respect of which the person was surrendered or "any other offence ... of which the person could be convicted on proof of the conduct constituting any such offence" – Whether trial of appellant for offences of murder and kidnapping beyond the jurisdiction of the Supreme Court of Victoria – Whether prohibition of trial for offences (other than offence for which extradited and offence of which the extraditable person could be convicted on proof of the conduct constituting…

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Truong v The Queen [2004] HCA 10
Case
[2004] HCA 10
Decision Date

CaseChat Overview and Summary

The case of *Truong v The Queen* concerned an appeal to the High Court of Australia following convictions for murder and kidnapping in the Supreme Court of Victoria. The appellant, Mr Truong, had been extradited from the United Kingdom to Australia. The central dispute revolved around whether the offences for which he was tried and convicted were permitted under the terms of his extradition, specifically concerning the principle of speciality which restricts the prosecution of an extradited person to the offences for which extradition was granted, or other offences of which the person could be convicted on proof of the conduct constituting the extradition offences.

The High Court was required to determine whether the offences of murder and kidnapping, for which the appellant was convicted, were offences of which he could be convicted on proof of the conduct constituting the offences of conspiracy to commit murder and conspiracy to kidnap, in respect of which he was surrendered. This involved interpreting section 42(a)(i) of the *Extradition Act 1988* (Cth), which outlines the limitations on trying an extradited person. The Court also considered whether a breach of a speciality arrangement between Australia and the United Kingdom had occurred, and whether the trial for murder and kidnapping fell outside the jurisdiction of the Supreme Court of Victoria due to the prohibition in section 42 of the *Extradition Act 1988* (Cth).

The Court reasoned that the appellant's liability for murder and kidnapping was based on his procurement and direction of the criminal activities, including the kidnapping and the ultimate execution of the victim. The prosecution's case was that the appellant was in command and orchestrated the events, and that the killing was a realistic possible consequence of the kidnapping he orchestrated. The Court found that the conduct constituting the conspiracy offences was such that, on proof of that conduct, the appellant could be convicted of the substantive offences of murder and kidnapping. Therefore, the case fell within the second limb of section 42(a)(i) of the *Extradition Act 1988* (Cth), which permits trial for other offences if the person could be convicted of them on proof of the conduct constituting the extradition offence.

The appeal was dismissed. The High Court concluded that the appellant's trial for murder and kidnapping was permissible under the *Extradition Act 1988* (Cth), as the conduct proven for the conspiracy offences also supported convictions for the substantive offences. The Court noted that the appellant had not entered a special plea challenging the jurisdiction on these grounds at the trial stage.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The materials before the Court of Appeal included a number of documents relative to the steps taken by the executive and judicial authorities of the United Kingdom in response to the Request. The appellant maintains that under the procedures set out in the relevant law of the United Kingdom, the Extradition Act 1989 (UK) ("the UK Act")[20], he was returned to Australia in respect only of some of the offences listed in the Request, and that he was not returned in respect of those offences (i) and (ii) for which he was tried and convicted. The result is said to be the vitiation of the appellant's trial on one or other of the grounds relied upon before the Court of Appeal and now in this Court.[20]References to the UK Act are to the statute as it stood in 1997, before the changes made pursuant to the Hong Kong (Extradition) Order 1997, SI 1997/1178.The facts It is convenient now to say something more of the facts. That task is assisted by the circumstance that the appellant has been tried, convicted and sentenced and that the record in this Court includes the evidence which the jury may be taken to have accepted and the remarks on sentence of the trial judge. But it should be emphasised that the complaints made by the appellant focus upon an earlier stage in the proceedings and the identification of the offences in respect of which he was surrendered by the United Kingdom and those offences of which, looking at the matter before trial, he could have been convicted on proof of the conduct constituting the offences in respect of which he was surrendered. That process of identification is not to be performed with the hindsight now available. In his remarks on sentence, Vincent J said that the appellant had travelled across the world using false travel documents, was obviously involved in criminal activity, handled large sums representing the proceeds of crime and had the capacity to recruit assistance in Hong Kong, the United States and Australia. All the principal actors were persons of Vietnamese national origin. The appellant was a member of a Chinese ethnic minority in Vietnam. At the time of trial, he was approximately 40 years of age. The sister of the appellant, Mrs Van, lived in Melbourne. The victim, Le Anh Tuan, was the 21‑year‑old son of Mrs Ha. She was an importer and exporter of clothing and footwear and a person of wealth. On 16 March 1996, the appellant, who had arrived from Hong Kong, met Mrs Ha in Melbourne. He endeavoured to enlist her assistance in the importation of heroin. At a later meeting, the appellant threatened Mrs Ha with unfortunate consequences for herself and her family should she not agree to take part. Mrs Van also put pressure on Mrs Ha. The appellant returned to Hong Kong and later went to London, but he continued in telephone conversations to put pressure on Mrs Ha, including demands for payment of $400,000 "protection money". On 29 April 1996, Mrs Ha's son was kidnapped. His body was found on 7 June 1996. The cause of death was a single gunshot wound in the head. The prosecution alleged that the killing was carried out by two Vietnamese identified as the Biu brothers, at the instigation of the appellant. The trial judge, in accordance with authorities in this Court including McAuliffe v The Queen[21], directed the jury that, in order to convict the appellant of murder, the jury need only find beyond reasonable doubt that the appellant, having been a party to the kidnapping of the victim, knew or was aware that a realistic possible consequence of such was that the victim would be murdered.[21](1995) 183 CLR 108.The law of the United Kingdom

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH AND HEYDON JJ GUMMOW AND CALLINAN JJ HAYNE J
Reference was made in argument to McAuliffe v The Queen[17] in support of a suggestion that the murder charge against the appellant involved materially different conduct from that involved in the conspiracy to murder charge. Once again, the point is purely theoretical. It involves making the wrong comparison. It is unrelated to the circumstances of this particular case. That is made plain by the remarks on sentence of the trial judge quoted above, which, in turn, reflect the way the jury was directed. The allegation, in relation to procuring, at trial, was that the appellant was in command. He "directed all that took place in relation to the kidnapping", including the threat of killing and the ultimate execution of the victim. There was never any suggestion that the two thugs who were engaged by the appellant to carry out the kidnapping might have acted with excessive force, or behaved in some other way contrary to his instructions. If they had done so, their own life expectations may have been considerably shortened. The appellant's liability was based on procuring. He was not left exposed as some unfortunate secondary participant caught up in events that escalated beyond what was planned. He was the person in charge. That was the way the conspiracy cases were put against him. And that is the basis on which he was convicted of the substantive offences.[17](1995) 183 CLR 108.Conclusion The case falls within the second limb of s 42(a)(i) understood in the light of s 10(2) of the Act. In the light of the nature of the cases of conspiracy to kidnap and conspiracy to murder that were put against the appellant, the acts or omissions by virtue of which he was alleged to have committed those offences were such that, on proof of those acts or omissions, he could be convicted of kidnapping and murder, as he was. The appeal should be dismissed. On 9 May 2000, at his trial in the Supreme Court of Victoria before Vincent J and a jury, the appellant was convicted on each of two counts in the presentment. One count was of kidnapping contrary to s 63A of the Crimes Act 1958 (Vic) ("the Crimes Act")[18]. The other count was of murder contrary to the common law. Vincent J sentenced the appellant to life imprisonment on the count of murder and to 15 years imprisonment on the count of kidnapping, with a non‑parole period of 23 years and 8 months. The appellant had been extradited to Australia from the United Kingdom in circumstances which will be detailed later in these reasons.[18]Section 63A states:"Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum)." It should be noted that, on his arraignment on 24 January 2000, the appellant had pleaded "Not Guilty" to both counts in the presentment. By that plea, the appellant was deemed by s 391 of the Crimes Act to have put himself upon the country for trial. Upon arraignment, the appellant had been "entitled to make plea of not guilty in addition to any demurrer or special plea" (s 390A). It is significant for what follows in these reasons that the appellant had not, rather than enter a plea of not guilty, demurred or entered a special plea that he could not be put on trial in the face of s 42 of the Extradition Act 1988 (Cth) ("the Act").The Court of Appeal

Ratio Decidendi

Legal Principle Established

Established by: HUGH AND HEYDON JJ, GUMMOW AND CALLINAN JJ, HAYNE J

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