Truong v The Queen
[2003] HCATrans 724
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M226 of 2002
B e t w e e n -
HONG PHUC TRUONG
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 28 MAY 2003, AT 10.20 AM
Copyright in the High Court of Australia
MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR J.B. McDOUGALL, on behalf of the appellant. (instructed by Clarebrough Pica)
MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friend, MS K.E. JUDD, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MS M.M. GORDON, for the Attorney‑General intervening as of right, but if there be any difficulty with the intervention as of right I would seek leave to intervene, and I have agreed with my learned friend, Mr Coghlan, that subject to questions of leave I should go first. (instructed by Australian Government Solicitors)
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Holdenson.
MR HOLDENSON: The issue to be determined on this appeal can be simply stated, and it is this. Whether the trial of the appellant in the Supreme Court of Victoria, in which the appellant was tried on two counts, first, the substantive offence of kidnapping contrary to statute and, secondly, the substantive offence of murder contrary to the common law, and at the end of which the appellant, as he now is, was convicted on each of those two counts, was conducted contrary to section 42(a) of the Extradition Act and if it were conducted contrary to that provision, then the two convictions, it is submitted on behalf of the appellant, must be quashed.
GUMMOW J: Why?
McHUGH J: What is the ground of appeal within the meaning of the statute? It cannot be a miscarriage of justice. It cannot be an error of law, can it? If he has a point, it is an abuse of process point, is it not?
MR HOLDENSON: We did have such a ground of appeal in the court below and we have such a ground of appeal in this Court as specified in the notice of appeal. As to the ground of appeal in the court below, the grounds are set out at page 20. Those grounds have not been added by way of a grant of leave by the learned registrar, and at page 20 of the first volume of the appeal book your Honours will see ground 6 at about line 20 on the page where it is said that:
The trial of the Applicant constituted an abuse of process and, as a consequence, there has been a substantial miscarriage of justice.
That ground is reflected in those terms in one of the grounds – indeed, I think, the third ground, in the notice of appeal to this Court.
McHUGH J: Yes, but there are abuses of process and abuses of process, and it does not follow that because something is an abuse of process it is a miscarriage of justice?
MR HOLDENSON: It does, in our submission, if the nature of the abuse has been of the nature here, trial conducted contrary to law, in which case ‑ ‑ ‑
GUMMOW J: What do you mean by “contrary to law”?
MR HOLDENSON: Section 42(a) of the Extradition Act.
GUMMOW J: Does that go to jurisdiction?
MR HOLDENSON: It goes to jurisdiction.
GUMMOW J: That is not right, is it?
MR HOLDENSON: If the trial court below ‑ ‑ ‑
GUMMOW J: I know. That is what Justice Ormiston said at paragraph 4 of his reasons.
MR HOLDENSON: Paragraph 4?
GUMMOW J: Yes. He said there was an argument, in effect, that leads to jurisdiction.
MR HOLDENSON: Yes. It does go to jurisdiction.
GUMMOW J: Your client was here, that is part of the jurisdiction, physical presence.
MR HOLDENSON: No, in our submission, there must be more than mere presence in order to found jurisdiction in the trial court. There must be a ‑ ‑ ‑
GUMMOW J: You say Levinge is wrong, do you?
MR HOLDENSON: If my learned junior would just pass me Levinge, the point about Levinge, indeed, well set out in the headnote, and I know the headnote is not the same as the judgment, but paragraph (1) of the headnote reads that:
Subject to any statutory provision to the contrary -
We say, by way of submission, that there is a statutory provision to the contrary in this case, the statutory provision being section 42(a), and it is really no different from those cases in effect ‑ ‑ ‑
GUMMOW J: Wait a minute. So therefore you say 42(a) involves a denial of jurisdiction?
MR HOLDENSON: Yes, because it precludes some offences being the subject of trial.
GUMMOW J: That is a fundamental question on the construction of section 42, which is not addressed in the Court of Criminal Appeal. No doubt it was debated there.
MR HOLDENSON: I am sorry?
GUMMOW J: That raises a fundamental question as to the construction of section 42, which is not dealt with in the Court of Criminal Appeal, no doubt because it was not debated there.
MR HOLDENSON: Section 42 was debated up hill and down dale in the court.
GUMMOW J: Not this question. One view of it is that section 42 is just talking about international relations.
MR HOLDENSON: In our submission, section 42 speaks in paragraph (a) of those offences in respect of which the person can be tried. It speaks in terms of being returned ‑ ‑ ‑
GUMMOW J: What about 42(a)(ii)?
MR HOLDENSON: Yes, that is the consent provision. That enables ‑ ‑ ‑
GUMMOW J: Yes, consent of a country, not of anybody else.
MR HOLDENSON: In this case the consent of the United Kingdom, which was not sought, was not granted and cannot be retrospectively granted because the consent must be given prior to the commencement of the trial – McDonnell v Smith, the old decision of this Court during ‑ ‑ ‑
KIRBY J: Consent is sometimes asked for to enlarge the grounds. I have sat in a case where that happened.
MR HOLDENSON: AB v The Queen. There was a question of the grant of consent in that case by the United States of America. Consent can be granted but it was not sought in this case. When one speaks of consent, one ‑ ‑ ‑
KIRBY J: What were the offences in AB? Remind me of that.
MR HOLDENSON: They were offences of a sexual nature, sexual offences. He was extradited back here with respect to quite a number. Upon his return it would seem that AB confessed to ‑ ‑ ‑
KIRBY J: He admitted to further offences.
MR HOLDENSON: - - - others not the subject of the criminal proceeding.
KIRBY J: Yes, it is all coming back now.
MR HOLDENSON: So he confessed and wanted them dealt with and it got to this Court on a sentencing question, but the background was he confessed to offences which were not even known by the authorities and he wanted them dealt with. Question, could they be dealt with? No, there had to be consent, but of course section 42 was not the subject of analysis in that case in the sense that there was a treaty which prevailed by reason of the operation and effect of section 11 of the Extradition Act, but when one speaks about jurisdiction ‑ ‑ ‑
GUMMOW J: So you say section 42 is directed to a State court?
MR HOLDENSON: Court of trial, yes. It speaks in terms of being “detained or tried in Australia”.
GUMMOW J: So it otherwise qualifies the general jurisdiction enjoyed by the Supreme Court of Victoria under its constitutive statute?
MR HOLDENSON: Under the Crimes Act in this case, yes.
GUMMOW J: So there is a 109 operation involved?
MR HOLDENSON: Yes, and there is a 78B notice.
KIRBY J: This was raised on the special leave point by Justice Hayne, I think, or ‑ ‑ ‑
MR HOLDENSON: Justice Hayne raised the question and we took the tip, if I can put it that way, and the section 78B notice was filed, served and so on, and it is in the back of the appeal book and it deals with whatever statutory provisions it is which prosecutors in Victoria rely upon in order to make presentments and thereby render a person subject to trial. Of course, if what it is that the prosecutor does is by reference to the common law, then section 109 has a limited operation and the statute prevails in any event, but at the end of the day this is a question ‑ ‑ ‑
GUMMOW J: No, but the jurisdiction of the Supreme Court of Victoria is founded in the statute, surely? It has to be.
MR HOLDENSON: Yes, that is correct, that is the jurisdiction of the Supreme Court. The power of the prosecutor to make presentment is found elsewhere than the Supreme Court statute, so this goes to the ability of the prosecutor to make a presentment.
GUMMOW J: It is just you were talking about common law and I did not quite understand that.
MR HOLDENSON: No, the ability of a prosecutor to make presentment may be sourced to the common law as distinct from a statutory provision in some Victorian Act.
Now, if I can just take the Court to our outline of submissions in response to the questions raised by your Honour Justice Gummow. If we could take your Honours to page 17 of our outline of submissions where your Honours at the head of the page will see a paragraph headed “5.15.1”. Now, albeit that the submission is put in terms of the application for proviso to section 568 of the Victorian Crimes Act, we say that the cases there listed are like, analogous, in the sense that they deal with what may or may not be the subject of trial. Harrison [1957] VR 117, of course, is an interesting case, where the offence the subject of trial required the grant of the consent of the Attorney‑General. The consequence was, in circumstances where there had been no such consent granted, that there was no jurisdiction.
Now, to take your Honour Justice Gummow’s point by reference to section 42(a)(ii) of the Extradition Act, then if we were dealing with that provision, then of course, as distinct from the first provision, the failure to grant consent would have the effect of denying the court of trial jurisdiction, as it did in Harrison’s Case, albeit certainly not by reference to a provision in any extradition legislation.
At the time that the criminal proceeding commenced in Victoria, that is at the time when the charges were initially filed in the Magistrates Court of Victoria – and they are set out at the front of the appeal book – there is no doubt that the appellant was charged with these two substantive offences, kidnapping and murder. He was also charged, at that point in time, with the two statutory conspiracies – statutory in Victoria – conspiracy to murder and conspiracy to kidnap, each of those being contrary to section 321 of the Crimes Act.
There was then the request by reference to section 40 of the Extradition Act by the government of Australia to the United Kingdom for the return of the appellant, as he now is, to Australia, and in that request there was listed (i) through to (viii) the eight offences the subject of the eight charges which had been filed in the Magistrates Court of Victoria, including these two substantive offences, kidnap and murder. In turn, as is required by English statute ‑ ‑ ‑
GUMMOW J: Wait a minute, what did you say about section 40?
MR HOLDENSON: There was a request by a Minister ‑ ‑ ‑
GUMMOW J: Not a Minister, it has to be by or with the authority of the Attorney‑General.
MR HOLDENSON: Yes.
GUMMOW J: That is the purpose of section 40. This is all explained in Oates very recently.
MR HOLDENSON: And it was, in this case.
KIRBY J: And it went to the Secretary of State in the United Kingdom and it included the two offences of which you are now complaining.
MR HOLDENSON: That is correct.
KIRBY J: But somehow they slipped out and I am still not entirely clear how that happened.
MR HOLDENSON: Right.
GUMMOW J: The source of it was the executive power of the Commonwealth, regulated by section 40.
MR HOLDENSON: That is correct, yes, and if we had any doubt about that ‑ ‑ ‑
GUMMOW J: Not section 40 simpliciter.
MR HOLDENSON: No, and I said in accordance with section 40 as distinct from pursuant to section 40. Indeed, our learned friend Mr Coghlan, has attached to the rear of his outline of submissions that request. There then, just following it through, the United Kingdom Secretary of State, as your Honour Justice Kirby has indicated, issued under the English statute the authority to proceed.
GUMMOW J: Now, why do we get into this foreign affair of State? Why do we get into what happened in England?
MR HOLDENSON: I am content to simply make reference to the surrender warrant which, in my submission, is the document to which we should have regard and only the document to which we should have regard in order to determine whether or not the first limb of section 42(a)(i) has been satisfied.
GUMMOW J: So when you look at section 42, you say 42(a)(i) ‑ ‑ ‑
MR HOLDENSON: Which breaks into two limbs.
GUMMOW J: Yes, but how does one identify the offence in respect of which the person surrendered?
MR HOLDENSON: One turns to the surrender warrant and looks at the face of the surrender warrant. One does not look ‑ ‑ ‑
GUMMOW J: Wait a minute. Other countries might not have something called a surrender warrant. It is a surrender warrant because that is what the British legislation says. It is not really an answer to what 42(a)(i) means.
MR HOLDENSON: No. In my submission, there must be something which ‑ ‑ ‑
KIRBY J: Answers to the description of our statute, otherwise ‑ ‑ ‑
MR HOLDENSON: Correct, there must be because there must be something which has the effect of rendering that which would otherwise be unlawful lawful. What would otherwise be unlawful? Arresting the person and sending them back.
GUMMOW J: No, we are going to go round in circles all day, Mr Holdenson. Unlawful by what law?
MR HOLDENSON: Our law, because at some point in time he crosses the shore and comes into this country, and what gets him over the shore and into this country is something akin to a warrant or, with respect to the opening phrase of section 42(a)(i), something which has the effect of surrendering. Now, in this case, it is a surrender warrant. This is an easy case which makes this case the vehicle, in our submission, to determine the meaning, operation and effect of those two limbs in section 42(a)(i). We look to the surrender warrant.
Now, the effect of the surrender warrant, which is to be found in one page, at page 48 of the first volume of the appeal book. As to the operative portion of the warrant ‑ ‑ ‑
KIRBY J: It is also a simple case, easy case, as the Chief Justice pointed out, in the special leave hearing, on the basis that it is not contaminated by any issue of merit except legal merit. Your client raised no objection to the way the trial was conducted.
MR HOLDENSON: I am not certain what the Chief Justice had in mind, but the operation and effect ‑ ‑ ‑
GLEESON CJ: I did not intend it as a compliment.
MR HOLDENSON: I am sorry?
GLEESON CJ: It was not intended as a compliment.
MR HOLDENSON: No, but the rule of law is not a bad start.
KIRBY J: Yes, all right. Move on.
MR HOLDENSON: Now, page 48 of the appeal book, two‑thirds of the way down the page at about line 18, there is to be found in two lines the operative part of the warrant. It reads and I quote:
Now, therefore, it is hereby ordered that the fugitive ‑
just pausing there. The fugitive had been defined in the fourth line of the document as the appellant in this Court –
be returned to Australia in respect of the offences for which he was committed by the Metropolitan Stipendiary Magistrate.
Now, that then causes one to inquire as to what it was were the offences for which he was committed. So it does one of two things. It either incorporates necessarily the committal order of the magistrate or, alternatively, another way of looking at it, is to go back through the document to what might be otherwise simply called recitals. Now, in the paragraph which commences at about line 13 one sees reference to the:
Metropolitan Stipendiary Magistrate, being satisfied . . . for these offences.
That in turn takes one back to the preceding paragraph in which there are four offences listed, each of them being English offences, and that the tip to that is with respect to the fourth and last of those four. That is the one identified in what must be about lines 11 and 12:
the fraudulent evasion of the prohibition on the importation of a controlled drug ‑
That is an English offence. There is no such Australian or Commonwealth offence. Now, within those three lines there, in which there is identified four offences, there is not one substantive offence there identified. Now, we are content to work by reference to the warrant. However, one understands the warrant if one has regard to the other pieces of paper which materialised after the trial in this case.
McHUGH J: Yes, but the warrant is no doubt the authority that English officers need to handle the present appellant. What does it have to do with this country? Is not the answer to be found in the construction of sections 40, 41 and 42 without any reference whatever to that warrant?
KIRBY J: Except that those sections are written against a long history and an important history of international law and international relations.
MR HOLDENSON: Which proceed by reference to materials ‑ ‑ ‑
KIRBY J: They give effect to it.
MR HOLDENSON: Yes.
KIRBY J: It is a very important principle, the principle of speciality.
MR HOLDENSON: As one reads the authorities and the texts, many of which were the subject of consideration by his Honour Justice Ormiston in the court below, one must read this Act and these provisions against that history, but in any event ‑ ‑ ‑
GUMMOW J: What is the answer to Justice McHugh’s question?
MR HOLDENSON: The answer is that the first limb of 42(a)(i), in speaking as it does of “any offence in respect of which the person was surrendered”, requires one to have regard to those offences identified by the repository of power in the United Kingdom, in this case the Secretary of State or an Undersecretary of State, as being those offences in respect of which there is a return to Australia. So the very wording of the Act takes one to the warrant. Just again in response to your Honour Justice McHugh, the very wording of the first limb certainly does not take one to the request by Australia because the very words used in section 42(a)(i) are not the words contained a couple of inches up the page in section 40 of the Act which speaks about:
A request by Australia for the surrender of a person from a country . . . in relation to an offence against a law of Australia ‑ ‑ ‑
McHUGH J: Yes, but you cannot divorce 42 from both 40 and 41.
MR HOLDENSON: Correct.
McHUGH J: Supposing there was no document; an accused person was surrendered by a country which had no form of warrant, and whoever it was did not direct his or her mind to which of the offences they were being surrendered.
MR HOLDENSON: It may be then that that particular case, if there be such a case, if there be such an instance under the present extradition regime in this country, which is this Act coupled with quite a number of regulations, each set of regulations being referable to an overseas place, an overseas country called an extradition country, if there be such an example out there, then it may be that that returning to Australia falls outside section 42, which would mean that that person would not have a section 42 point.
McHUGH J: Yes, but is not the matter to be approached not by looking at the warrant so much as looking at section 41:
Where a person is surrendered to Australia in relation to an offence against a law of Australia . . . the person shall be brought into Australia and delivered to the appropriate authorities ‑ ‑ ‑
MR HOLDENSON: But it speaks in terms of the surrender “in relation to an offence”.
McHUGH J: Exactly.
MR HOLDENSON: One must be able to identify an offence. Section 41 does not use the words from section 40, namely the offences the subject of the request, does not use expressions along the lines of, “the offences with which the person has been charged”. It speaks in terms of “surrender”.
McHUGH J: I appreciate that, but also 41 refers back to section 40 ‑ ‑ ‑
MR HOLDENSON: Which in turn speaks in terms of surrender a person ‑ ‑ ‑
McHUGH J: “A request . . . for the surrender”.
MR HOLDENSON: “A request . . . for the surrender”, but it goes on, “in relation to an offence”.
McHUGH J: That is right. So the request for the surrender does not end there; it is in relation to something, it is qualified in some way, it is qualified by the offences identified in the surrender, which become the offences in relation to which the request by Australia is made.
Now, in this case, on the material that was before the court below, we know, and I do not recall your Honour Justice Kirby’s expression but the expression I am about to use is, some offences fell away. Some offences that were in the request fell away. Some of the offences in the authority to proceed, and I have not yet got to that, at page 35 of the appeal book, where your Honours will see - that is the document issued by the Secretary of State - one of the documents which gives rise to the conduct of the extradition proceeding before the magistrate in the United Kingdom, at page 35, if your Honours have regard to lines 10 through to 14, namely the last four lines in that paragraph on that page, one sees listed eight offences. They represent the English equivalents, according to the Secretary of State, to the eight offences listed in the request. Your Honours will see ‑ ‑ ‑
KIRBY J: Now, speaking for myself, I mean we might ultimately decide that we are not concerned in this foreign matter ‑ ‑ ‑
MR HOLDENSON: Correct.
KIRBY J: ‑ ‑ ‑but, for myself, if you look at the scheme of the Act, it does seem to envisage a request by Australia, and then it ultimately comes down to the narrower portal in 42(a)(i) of the offence in respect of which the person was surrendered, which may be something narrower and smaller than the request in 40. Now, what I would like to know is, does the evidence that is admissible on the records that we have before us indicate what happened between the document on 35, which included what you called the substantive offence, offences of murder and kidnap, and the document on 48, in which those offences had, as you have said, fallen away. I mean, is there any indication of how that happened?
MR HOLDENSON: Yes, there is some indication of how it happened.
KIRBY J: It was suggested, I think, in the special leave hearing, that counsel had drafted a document before the magistrate.
MR HOLDENSON: Yes, and I will take the Court to that. In accordance with the UK Act, a proceeding, after the stage of page 35 of the appeal book, is conducted before an English magistrate. At that proceeding, in this case, the government of Australia was represented by counsel and he relied upon an outline of submissions. That outline of submissions is to be found in the appeal book at page 145, and it is called an “OPENING NOTE”. If we could take your Honours to that. At page 145 one sees at about line 10 “OPENING NOTE ON BEHALF OF THE GOVERNMENT OF AUSTRALIA” and, if I could just quickly go over to page 148, one sees that it is signed by counsel.
KIRBY J: Do not leave 145 because it says he:
is wanted by the Government of Australia for murder, kidnapping ‑ ‑ ‑
MR HOLDENSON: Yes, I will come back to that, but I am indicating just by reference to page 149 line 9, the document has been signed by counsel and dated. Now, going back to page 145 one sees in paragraph 1, under the subheading “Introduction”, one there finds listed the eight Australian offences, the subject of the original eight charges back in the Magistrates Court of Victoria and for that matter the subject of the section 40 request. Your Honours will note, in line 19, at the end of the line, the phrase:
knowing involvement –
and it goes on to say:
in the importation of heroin.
We all know that there is no such offence; it should be knowingly concerned, and it was misdrafted in the section 40 request. Nothing turns on that. But in that paragraph you will see listed the eight Australian offences, including the two substantive offences of murder and kidnapping. They are the first two listed, and then the two statutory conspiracies.
KIRBY J: Just pause there. You say it was misdrafted, but you go by that expression to the very heart of a problem which will frequently exist more so in a case other than a common law country, but it will be necessary to explain to the judicial officer or administrative officer to whom application is made for surrender an offence which that person will understand but which may be expressed in a slightly different way to the way in which we express our offences.
MR HOLDENSON: That will happen ‑ ‑ ‑
KIRBY J: Presumably Mr Lewis, his counsel in London, and he is trying in his document to explain to the Bow Street Magistrates Court the type of offence for which surrender is sought.
MR HOLDENSON: In Australia.
KIRBY J: In Australia, in a language which the magistrate in London will understand. I mean this could be a magistrate in Nigeria or a magistrate in Congo‑Brazzaville. It does not have to be a ‑ ‑ ‑
MR HOLDENSON: Assuming they are extradition countries, yes.
KIRBY J: Assuming we have an extradition treaty. It does not have to be a common law person who speaks our language and speaks our offences.
MR HOLDENSON: Correct, but this case is made easier because we know the English magistrate will have that same understanding as we Australian lawyers.
KIRBY J: Yes, but they may not have an offence in England of knowingly concerned.
MR HOLDENSON: They may not.
KIRBY J: And hence the attempt by Mr Lewis to express “knowing involvement”.
MR HOLDENSON: No, “knowing involvement” ‑ ‑ ‑
KIRBY J: Is that an English offence?
MR HOLDENSON: ‑ ‑ ‑ is the language in the section 40 request back here in Australia.
KIRBY J: I see.
GLEESON CJ: Tell me, how does the law in England in relation to responsibility for homicide line up with the law in Australia as declared in McAuliffe and Johns?
MR HOLDENSON: When one has regard to the authorities cited more particularly in Johns, which was the first of those cases, they are English authorities and, as I understand it, they are still the law in England – as I understand it, as I read English texts, as I understand it, and I am qualifying the answer. We turned our mind to that.
GLEESON CJ: Is a possible explanation of what happened, not that there was some kind of oversight but that something was thought to turn upon the fact that your client was not in Australia at the time of either the kidnapping or the murder?
MR HOLDENSON: We are not able to answer that. The best we can do is further down this page, 145. If I could just take your Honours from paragraph 1, the paragraph which has been the subject of discussion. Paragraph 2 makes reference to the authority to proceed, which is at page 35. Paragraph 3 identifies the draft charges upon which extradition is sought. So this is the falling away of some of the charges.
GLEESON CJ: Those charges on page 146 are all charges that could have been sustained by conduct of your client in Australia.
MR HOLDENSON: They are English offences there listed. The five offences are listed. What puts you on notice as to that is the fifth draft charge at about line 13 is referable to – and it would see they do have the notion of “knowingly concerned” in England – “in the fraudulent evasion of the prohibition”. The point we seek to make about that is five charges and not one of them is any substantive offence, and certainly not a substantive offence of kidnapping or murder notwithstanding the fact that those two substantive offences were identified in the authority to proceed at page 35 but referred to in paragraph 2 on page 145.
If I can just leap ahead for a moment, I will come back. Those five draft charges in turn became four of them because charge 3 was abandoned – and I will come to how that happens in a moment – charge 3 is abandoned, leaving 4, but they were the subject of the learned magistrate’s committal order. That committal order is to be found at pages 45 to 46. Page 45 of the appeal book is the first page of the document issued by the magistrate under section 9(9) of the English Act. At line 13, “following offences against the law of the United Kingdom”, handwritten, “see attached schedule”, and over the page on page 46 one sees first of all at about line 8 in the tramlines there, “DRAFT CHARGES”, except the word “DRAFT” has been deleted, and the five charges there listed, 1 down to 5 – and No 3 is deleted – but the five there are worded identically to the five as set out in the opening note of counsel for the government of Australia.
GLEESON CJ: And you will note the concluding words on that page.
MR HOLDENSON: “All within the jurisdiction of the Government of Australia.”
GLEESON CJ: What does that mean?
MR HOLDENSON: It was something that need not be there and it was something not contained within counsel’s opening note. One does not speak about governments having jurisdiction; one speaks in terms of courts having jurisdiction. It could not quite be right because those five offences there are English offences ‑ ‑ ‑
GUMMOW J: It is all about double criminality, is it not?
MR HOLDENSON: That is a dual criminality certificate, yes. That is what it comes to be called under section 9(9).
GUMMOW J: Yes.
MR HOLDENSON: The only point I am making at this stage is what is on page 46 is identical to what is on page 146. Indeed, the miswording of charge 5 is carried over. Charge 5 reads, “That you 1st January 1996 and 12th August 1996”. It should clearly read, “That you between” and the word “between” is left out in each charge No 5.
Returning to counsel’s outline of submissions or this document headed “OPENING NOTE”, paragraph 3 identifies that extradition is sought upon what turns out to be non‑substantive offences. Your Honour, the learned Chief Justice, asked me the question as to why. I do not know why. I know what he did though because he confined his – to use a non‑controversial expression – application or seeking to non‑substantive offences, and that is how ‑ ‑ ‑
KIRBY J: Is this a term of art? Is it non‑substantive in a sense, conspiracy is a substantive offence, but is this a term of art that ‑ ‑ ‑
MR HOLDENSON: I am using it as criminal lawyers use it colloquially. Conspiracy does not require the substantive offence the subject of the conspiracy to be performed in order for there to be made out ‑ ‑ ‑
KIRBY J: It is a shorthand for that idea?
MR HOLDENSON: Yes. Now, I have indicated that the magistrate, in accordance with paragraph 3 of the opening note, performed his function accordingly. That is apparent from another document which was before the court below, the document at page 39 of the appeal book and following, which are the reasons of the magistrate in this case. Could we take your Honours to that document, page 39, where your Honours will see in paragraph 2 at about line 8 on the page reference being made to the government of Australia being represented by Mr Lewis. Reference is made to the four‑page opening note, that is the document to which I have taken your Honours. Jumping a few lines, one sees the way the magistrate was thinking and performing his function. The question was:
show that ‘the man in the dock was a party to the conspiracies’.
That is followed through in paragraph 3 of that page, second sentence:
It has not been necessary for me to look at all of this material.
Then down to paragraph 4, reference is made to the “five draft charges”. The blackmail charge, that was number 3, was “abandoned”, “no longer relevant”. Then one goes over the page to page 40 where your Honours will see at about line 7 a paragraph numbered 7. The last two lines in that paragraph again make it clear that the magistrate was focusing upon the offence of conspiracy. The last two lines read, albeit slightly out of context:
There is the clearest evidence that ‘PHUC’ was a conspirator in each of the conspiracies.
Then again in paragraph 10, jumping two pages to page 42 of the appeal book - page 42, your Honours will see at about line 18 there is again the formulation of the question:
Is ‘PHUC’ the man in the dock, Truong Hong Phuc?
The last two lines, or two and a half lines on that page again make it clear that the learned magistrate is focusing upon the offence of conspiracy because he says, and I quote:
I am satisfied on the totality of all the evidence put before me that Mr. Truong does have a case to answer on each of the conspiracy allegations.
Then over the page is the language of a committing magistrate. At paragraph 11 at the head of page 43:
Subject to any further representations either side may care to make I propose committing Mr. Truong under paragraph 9(8) . . . to await the decision of the Secretary of State ‑ ‑ ‑
GLEESON CJ: Mr Holdenson, if a man picks up a telephone in New York and speaks to a man in Melbourne and says, “I want you to drive up to Sydney tomorrow and kill a man in Sydney” and that request is complied with, what crime or crimes against the law of Australia has or have been committed by the man in New York?
MR HOLDENSON: This case is proceeded on the basis, and the facts of this case are not too different from that - if we change New York to Hong Kong and we change whatever was said to people in Melbourne - this case is proceeded on the basis that there is a murder, that is the offence of murder has been committed.
GUMMOW J: Committed where?
GLEESON CJ: Where?
MR HOLDENSON: The offence of murder has been committed - in your Honour’s example it would be New South Wales.
GLEESON CJ: It is where the death of the victim - if there is a murder it happens where the victim ‑ ‑ ‑
MR HOLDENSON: Yes, that is right.
GLEESON CJ: Where the act causing the death of the victim occurred.
MR HOLDENSON: Because the nature of the offence is a result offence, requires a result.
GLEESON CJ: That is right. Now, what is the conduct on behalf of the man in New York that makes him criminally responsible for the act causing the death of the victim, which is presumably the firing of a gun.
MR HOLDENSON: Yes.
GLEESON CJ: Or something like that.
MR HOLDENSON: It is the conversation if it amounts to counselling or procuring.
GUMMOW J: Counselling where? On this example it is counselling from Victoria.
MR HOLDENSON: Down the telephone line to the man in, as it turns out he is in Victoria.
GUMMOW J: Yes.
MR HOLDENSON: Who then goes and does it in Sydney, in your Honour’s example.
GLEESON CJ: So where is he tried, Victoria or New South Wales?
MR HOLDENSON: On the substantive offence of murder he would be tried in New South Wales. If we changed the offence to incitement to murder, I would have to check, but it may well be that it is an offence contrary to the law of Victoria.
GLEESON CJ: What was the basis on which this charge of murder was left to the jury?
MR HOLDENSON: The murder was put, and we have identified it in some opening paragraphs of the outline of submissions, he having engaged in the kidnapping - so it first of all required a finding on the first count, that is he having counselled or procured the kidnapping, was aware, knew, believed that it was a realistic possibility that the man might be murdered.
GLEESON CJ: McAuliffe.
MR HOLDENSON: Johns, Miller, McAuliffe, that is right.
GLEESON CJ: Does that represent the law of England? Does the common law of England have a principle to the effect that if you are a participant in a joint criminal enterprise and you contemplate as a possibility the risk of the death of the victim, even though the joint enterprise does not comprehend killing the victim, you are liable for murder or manslaughter depending upon what you foresee subjectively as the intent with which the person who kills the victim acts?
MR HOLDENSON: Yes.
GLEESON CJ: That is the law of England?
MR HOLDENSON: As we understand it.
KIRBY J: You want it to be so because you say that highlights the significance of the “falling away” of the murder charge.
MR HOLDENSON: We also want that to be the case because it assists us in another argument we have with respect to the second count on the presentment, which was the substantive offence of murder, being sent back, we say, to stand trial for a statutory conspiracy which in Victoria requires a very special mens rea which was very much not the mens rea of a McAuliffe murder.
GUMMOW J: The counselling or procuring to kidnap occurred at least partly in Victoria, did it not?
MR HOLDENSON: No, he was outside the country at all relevant times.
GUMMOW J: At all times?
MR HOLDENSON: Yes. If one reads the ‑ ‑ ‑
GUMMOW J: How does that square with the ideas in Lipohar?
MR HOLDENSON: There be the connection with Victoria because he was speaking down the telephone line and down the fax machine.
GLEESON CJ: He had actually visited Victoria, had he not?
MR HOLDENSON: He had previously visited Victoria and I think left on 12 March, which was some six weeks prior to the kidnap. So he had been physically in Victoria, yes.
GLEESON CJ: He had actually demanded money from Mrs Ha in Victoria, had he not?
MR HOLDENSON: I would have to check the facts. I do not recall if the first demand was made after he left Australia, but in any event there was a demand made through a fax machine.
GLEESON CJ: Was it the Crown case that the instructions to kidnap the young man, the victim, were given by him from Hong Kong over the phone to somebody in Melbourne?
MR HOLDENSON: Yes, that is as we understand it.
GLEESON CJ: But the people who actually did the kidnapping came to Australia from the United States.
MR HOLDENSON: Yes.
GLEESON CJ: It was not the Crown case that he gave the instructions from Hong Kong to the United States?
MR HOLDENSON: No, I do not think so.
KIRBY J: Could I ask a question that I should postpone to the end of the case but it is intriguing me. What is the logic of your case? Is it that the appeal should be allowed, the conviction quashed and then your client could either: (a) be charged with the conspiracies of which he was sent to Australia; or (b) Australia could ask the United Kingdom to enlarge the offences to include the so‑called substantive offences?
MR HOLDENSON: Yes, that is correct, albeit it gives rise to a nice question which we have set out at paragraphs 8.2 and thereafter. That is on pages 19 to 20 of the outline. Just taking your Honours to that, can I say while your Honours are turning the pages that your Honours will have to keep in mind that section 568 of the Victorian Crimes Act which deals with the jurisdiction of the appellate court is drafted quite differently from the provisions within the New South Wales legislation, in particular sections 6 and 8 of the New South Wales criminal appeal legislation, because, as we have identified in paragraph 8.2.1, the appellate court has two alternatives if it is determined to quash the convictions. It either enters an acquittal or, alternatively, directs that there be a new trial. I do not want to run the argument for the ‑ ‑ ‑
GUMMOW J: I am sorry, 568?
MR HOLDENSON: Section 568(2), which sets out the powers of the appellate court. Subject to the special powers, and there are not any, there is an alternative: either an acquittal or a new trial. I do not want to run the argument for the director but it would be a bit hard to ask for an acquittal in circumstances where, if we get that far, the presentment has been a nullity. You cannot get a valid acquittal on a null presentment. So the question arises: can there be a new trial ordered ‑ ‑ ‑
KIRBY J: Has it been a nullity or simply an abuse of process of the court?
MR HOLDENSON: It would be both, we would say, but it may be that we do not succeed on the first aspect and we only succeed somehow on the abuse of process aspect, but it is, in any event – well, it depends upon how the court gets to that stage, but if it says it is contrary to section 42(a)(i), that is, if the court holds that, then the presentment has to be a nullity.
GUMMOW J: Well, we are back in section 109 of the Constitution.
MR HOLDENSON: Yes. I was trying to get to section 109 at the end of the case.
GUMMOW J: Yes. At the beginning myself.
MR HOLDENSON: So, to respond to your Honour Justice Kirby ‑ ‑ ‑
GUMMOW J: Because otherwise we do not know what the State law is that is left.
MR HOLDENSON: If Mr Coghlan would identify it, we would be much assisted.
GUMMOW J: …..after 109 does its work.
MR HOLDENSON: If he identifies a statute, or someone identifies a statute, then there is some work for section 109 to do; it has something to work upon.
GUMMOW J: But if you are not correct about the position under English law of the McAuliffe-type territory, there would be a double criminality problem, would there not, in England?
MR HOLDENSON: No, he was returned on conspiracies.
GUMMOW J: There would have been – exactly.
MR HOLDENSON: Sorry, your Honour said “would have been”.
GUMMOW J: Exactly, yes.
MR HOLDENSON: I am sorry, I missed the word ‑ ‑ ‑
GLEESON CJ: This helps you. This tends to suggest that it was not some oversight on the part of counsel that the charges as set out on page 146 were as they are.
MR HOLDENSON: Yes, page 146. That is the second page of the opening note, yes, which were ‑ ‑ ‑
GLEESON CJ: There could possibly be a rational explanation of why the charges referred to on page 146 are narrower than the charges referred to in paragraph 1 on page 145, and it might have something to do with the questions of double criminality and the relationship in turn between those questions and the conduct, including the location of the conduct, of the appellant.
MR HOLDENSON: Yes.
KIRBY J: Of course, it may be that the magistrate just did not know enough about our law, and maybe Mr Lewis did not know enough about our law. After all is said and done, common purpose is, in a sense, a legal fiction and it would not be the law everywhere and it may be that this is the very point that the Commonwealth makes in its submissions to this Court, that it is really not the object of the rule of speciality that a person in the position of the magistrate should be, as it were, finally determining the exact precise content of the elements of the charge.
MR HOLDENSON: Correct. His function, or her function, is somewhat restricted by statute in both England, if one has regard to the English Act and, of course, if one has regard to the situation here in Australia in section 19 of the Australian Act. But, in any event, we know that in paragraph 3 of the counsel’s opening note he restricted the offences upon which extradition was, his word, “sought”. The magistrate performed his function accordingly and in the certificate there is listed no substantive offences.
Now, what then occurred is, not the next step, the surrender warrant; what then occurred is what did not occur. We know that the appellant did not institute a proceeding by way of an application for habeas corpus. He did not complain about what occurred in the extradition proceeding before the magistrate, he had no complaint about the orders, and there is a mechanism to do that under section 11 of the English Act. But we also know that the government of Australia were not complaining either, because section 10 of the Act affords the requesting country, in this case the government of Australia, an opportunity to complain about what it is that the magistrate has committed the requested person upon.
KIRBY J: There is a footnote in Justice Ormiston’s reasons that indicate that there was some complaint or some point made in a private communication with counsel for the Crown once the trial had begun, I think, or when the matter came back to Australia. There was a footnote in the judge’s ‑ ‑ ‑
MR HOLDENSON: Right, but I am still back in England.
KIRBY J: A complaint was made or at least the point was raised when the matter came back to Australia? Nothing was done?
MR HOLDENSON: Yes, but the point I am making is there was no complaint made under section 10 of the English Act by the Government of Australia with respect to what the English magistrate had done, and section 10(1) affords an opportunity to the requesting country to complain about what it is which is the subject of the magistrate’s order.
KIRBY J: Who do they complain to under the Act?
MR HOLDENSON: It is by reference to a stated case, and they complain to a court and ‑ ‑ ‑
KIRBY J: This is section 10, is it?
MR HOLDENSON: Just looking at section 10:
to state a case for the opinion of the High Court or, in Scotland, the High Court of Justiciary on the question of law involved.
So it is the High Court, and that is in section 10(1) of the English Act.
KIRBY J: Yes, you say that not only was the matter not complained of by that section but this is exactly what the counsel for Australia had asked, and asked it against the background of a previous request to the Secretary of State which included the substantive events, and so this, you say, we should infer, this is deliberate conduct?
MR HOLDENSON: Yes. He got what he sought and he represented the Government of Australia. The Government of Australia got what his word sought ‑ paragraph 3 of the opening note. The next step is the surrender warrant. We have taken your Honours to the surrender warrant at page 48 of the appeal book. The operative part of the warrant is that which is well down the page at about line 18, and by necessary implication, that is, what is on the page, he was surrendered in respect of conspiracy offences and he was not surrendered on substantive offences, it adopting what it was that was the subject of the committal order by the magistrate, which one can trace back through the document.
Now, in order to then determine the offences upon which the appellant could be tried back here in Australia, one turns to section 42 of the Extradition Act. One does not go to any regulations because none have been made which deal with specialty unlike as we read the treaties as attached to the various statutory rules made under the Act unlike most cases.
Your Honour Justice Callinan may well recall the application for special leave in the case of Ha, Ha being footnoted by his Honour Justice Ormiston in the judgment below where it was said on an appeal against conviction that there was a breach of the principle of specialty, it being a case in which Ha had been extradited from Hong Kong to Australia. Now, in that case, the regulations made under the Act, had the effect of modifying section 42, so one turned to the treaty, and in particular – it was either article 15 or 18, and it was drafted a lot more clearly than section 42.
One sees the Cabal litigation which took up the attention of the courts for some years in the Federal Court and this Court, indeed. In that case, again, the treaty attached to the statutory rules made under the Act, again set out in very clear terms, the rule of specialty applicable to this case.
Now, just dealing with section 42(a), the first thing to note – and I said this earlier in response to, I think, a question put by your Honour Justice Gummow, this is not about (ii) ‑ this is not a consent case, and the case I cited in the context of the consent having to be given prior to the commencement of the trial - the case I cited was McDonnell v Smith (1918) 24 CLR 409, albeit not in an extradition context. One then goes to 42(a)(i), as has been indicated in discussion. There are two limbs to it. We say that in order to consider the first limb, the first limb which reads:
any offence in respect of which –
he –
was surrendered –
we say that one looks to the surrender warrant. I might indicate in passing we succeeded with respect to this limb in the court below. The court below certainly proceeded on the basis that the first limb had not been satisfied.
As I indicated in response to a question put by your Honour Justice McHugh, the first limb does not make reference to the request or the content of the request or the offences in relation to which the request was made. One simply looks to, we say by way of submission, the warrant, because that is what indicates what the surrender was about and in this case it is certainly not substantive offences. Moving on to the second limb, the second limb which with respect to ‑ ‑ ‑
KIRBY J: In order to the chronology final in my mind, you raise no point formally at the beginning of the trial or during the trial before Justice Vincent, but on the special leaving hearing counsel for the Crown indicated that no argument was raised in respect of waiver.
MR HOLDENSON: Correct.
KIRBY J: And I think the footnote of Justice Ormiston says that there was some communication of the point to counsel. Is that the foundation of the non‑availability of waiver? Apparently in some case I said you cannot waive it.
MR HOLDENSON: Yes, you said that in AB, but you said it by reference to the English case of Davies, which is clearly authority for that proposition, which is cited on the outline. It was in that case that Davies himself signed a document consenting to his being prosecuted in respect of offences in respect of which he had not been surrendered – it was part of a plea bargaining arrangement in England. He consented to being prosecuted and under section 17 of the English criminal appeal legislation there was a reference to the Court of Appeal with respect to the convictions which had been imposed upon Davies for offences not the subject of surrender, albeit offences for which he wanted to be prosecuted, and the English Court of Appeal held that if the offences the subject of the indictment fall outside the specialty provisions then they must be quashed. Now, if ever there was a case of waiver, that was it.
KIRBY J: That is the opinion of the English Court of Appeal. We are not bound by that course.
MR HOLDENSON: I understand that.
KIRBY J: Was the basis of the Crown’s statement in the special leave hearing that there was no point of waiver which otherwise might seem at least to be arguable? Was that on the basis that there was communication of the point or is there some other thing that I am missing? Anyway, we can ask the Crown that.
MR HOLDENSON: We can ask the Crown that. I know what the answer is.
KIRBY J: As you understand it, it is not argued in this appeal?
MR HOLDENSON: There is no argument about waiver in this case. Of course, if waiver goes to jurisdiction, you cannot waive jurisdiction and confer a jurisdiction upon the court which it does not have. But can I say this in any event, there is a transcript of the trial in this case. There is nothing on the transcript. Mr Coghlan and I have spoken and there is nothing on the transcript. The transcript I think has been provided to this Court. Some of it is in the second volume of the appeal book of course, but there is a reason. There is no question of waiver. I do not need to go any further. We have appeal books here. We have transcript in the Supreme Court.
KIRBY J: Yes, very well. I will assume that unless it is raised.
McHUGH J: But there is a related point, is there not, and that is the specialty rule embodied in section 42 has always been seen as a privilege of the surrendering State for the protection of its interests. In the United States, for example, quite a number of circuits hold that the accused has no standing to challenge a breach of the specialty rule unless the surrendering State has made objection.
MR HOLDENSON: That might be the law there, and that is in part referable to the fact the treaties there form part of the municipal law and the source of the rule against specialty falls within treaties, which are of course agreements between nations.
KIRBY J: But does not that point help you in the sense that it perhaps explains why a party cannot waive because the objection is to the relations between nations, that a representation has been made to the United Kingdom which goes through its procedure and which we are not then conforming to.
MR HOLDENSON: Yes.
KIRBY J: And that is not for the Crown here or the appellant to waive.
MR HOLDENSON: Yes, that is correct, and we adopt the point made by your Honour. But there is a further aspect to it, and that is this. There is no uniform principle or rule of specialty. It is variously expressed in different places at both the same and different times. The rule as to specialty at the moment between this country and the United Kingdom is different to this country ‑ ‑ ‑
McHUGH J: That may be, but if the section is for the benefit of the surrendering country, where do you get your standing to take advantage of it if the surrendering country does not object? And the fact that section 42(a)(ii) enables the surrendering country to consent later supports the view that it is for the benefit of the surrendering country.
MR HOLDENSON: We rely upon Davies and for that matter that which fell from your Honour Justice Kirby in AB v The Queen. We have identified the passages in paragraph 5.16 of our outline of submissions on page17. It is a point which can be taken by an accused person. It is really no different from those cases - I was not going to read those passages to your Honours unless your Honours ‑ ‑ ‑
KIRBY J: I have an impression that at a trial level the point of speciality is often taken by accused persons. They keep the prosecution within the matters upon which they have been extradited.
MR HOLDENSON: Yes.
KIRBY J: I may be wrong about this but ‑ ‑ ‑
MR HOLDENSON: Well, I am not able to assist your Honour with any cases which evidence that.
KIRBY J: Over the years I have heard quite a few of these cases.
MR HOLDENSON: They have not found their way into the reports, unfortunately.
KIRBY J: I think these things are raised, and often the country, let it be…..or some other place, they would have no means of knowing what was going on in our courts, and the courts uphold the rule of law; the rule of law is reflected in the Extradition Act; the Extradition Act reflects the international law principle. Who else will take it other than the person who is affected?
GUMMOW J: It should be the court.
MR HOLDENSON: I am sorry?
GUMMOW J: The court.
MR HOLDENSON: The court?
GUMMOW J: Yes.
MR HOLDENSON: If Justice Vincent did not know anything about it, and the United Kingdom authorities knew nothing about it, and we know that because of the material that is in the appeal book at about page 140, where there is a letter from the Home Office to a staff member of the Commonwealth Attorney-General’s Department where it is clear, at least in the mind of the author of that letter at page 142 of the appeal book in paragraph 7 on that page at about line 19, that the offence of murder - and this letter was drafted by reference to the conviction for murder, the second count on the presentment in the court of trial, was that the:
charge of murder was not put before the magistrate . . . was not a specific charge on which he was surrendered.
The United Kingdom authorities knew nothing about it. That is how it works in practice. Mr Truong certainly was not in a position to communicate with them upon his return to Australia. He cannot speak English, still cannot. I am not sure how he got on during the extradition proceeding. There were 2000 pages of materials put before the ‑ ‑ ‑
GUMMOW J: If you are right, this goes to jurisdiction. It is always a matter for the judge to work out whether there is jurisdiction.
MR HOLDENSON: Only if he is on notice.
GUMMOW J: Well, it is an extradition matter.
MR HOLDENSON: No one turned their mind to any of this until I got hold of it.
GUMMOW J: Well, maybe they should start.
MR HOLDENSON: There is no doubt in the world about that.
GUMMOW J: One message you get out of this law is that it is very complicated and the moment you see Extradition Act, a bell rings, I would have thought, a loud bell.
MR HOLDENSON: Well, the bell never rang in this case, notwithstanding the fact that they got through on count 1 by the skin of their teeth, because but for section 114 of the Victorian Sentencing Act, which says where there is an increase in penalty, that only applies with respect to offences committed after the time of the increase, but for that provision, count 1 would have fallen away by now, it would have fallen away in the court below, because the maximum penalty increase for the statutory offence of kidnapping, and therefore would have fallen outside the ‑ ‑ ‑
KIRBY J: It is a five‑year differential, is it not?
MR HOLDENSON: A five‑year differential, from 20 to 25. It would have fallen outside the bracketed portion of that second limb.
KIRBY J: Does that matter in this case, given that your client was sentenced to life imprisonment on the murder and that that was equally applicable to conspiracy to murder – merged in the higher sentence.
MR HOLDENSON: What your Honour is saying is we were sentenced to life on the murder, we were sentenced to 15 years on the kidnap, wholly concurrent by definition, it could not be anything else, but the non-parole period which was fixed is referable to each of the two convictions and it will not be the same should this Court only quash the conviction on the kidnap, because, of course, the principle enunciated by this Court in De Simoni would preclude the learned sentencing judge from having regard to the kidnap in imposing sentence for the murder, and that also applies to the fixing of the non-parole period.
Moving on with the second limb, as your Honours well know from having read the documents, the second limb uses the phrase “conduct constituting any such offence”. That then takes one through to the interpretation provision in section 10(2) of the Act and necessitates a reading in of section 10(2) into section 42(a)(i). Now, we have done that in our outline of submissions at page 11 in paragraph 5.4. The court below engaged in the same process. The Federal Court has been doing this for more than a decade, reading in section 10(2) into the various paragraphs and subparagraphs of section 19 of the Act in the context of double criminality. The submission on behalf of the appellant in this case is, not only is the first limb not satisfied, but the second limb likewise has not been satisfied.
If we can just speak in terms of acts instead of this difficult phrase “acts or omissions, or both”, that second limb becomes – and I am reading from paragraph 5.4 of the outline at page 11 – the appellant shall not:
(a) be tried for any offence that is alleged to have been committed before [his] surrender . . . other than:
any other offence (…..) of which [he] could be convicted on proof of the acts . . . by virtue of which these offences –
that takes one back to the offences in respect of which he was surrendered, the conspiracies –
are alleged to have been committed.
Now, what we have done elsewhere in the outline is list the acts, and we have done that in paragraph 5.11 with respect to conspiracy to murder. Paragraph 5.11 is to be found at the foot of page 15 and we have identified there the acts by virtue of which the offence of conspiracy to murder was alleged to have been committed by the appellant, and we have listed there the elements of the offence of conspiracy to murder contrary to section 321 of the Crimes Act, albeit made those elements referable to the appellant:
(i) the Appellant reached an agreement with each of the other named persons;
That is section 321(1). Subparagraph (ii) specifies the scope or content of the agreement, a course of conduct which would be pursued which would involve the commission by them of the murder of LAT. He was the person murdered. Thirdly, and this is referable to the mens rea provision of section 321, namely section 321(2)(a), the appellant and those other named persons each intended that the murder of LAT be committed.
GUMMOW J: In a way that heading “Speciality” at the top of 42 is misleading of the Act. It never talks about honouring any undertaking as to speciality ‑ section 42 of our statute.
MR COGHLAN: No, your Honour, but the undertaking to speciality is in a sense, because of the construction of the English Act, a condition precedent ‑ ‑ ‑
GUMMOW J: I understand that.
MR COGHLAN: And we do not having any troubling entering it for the reasons I said before because we might be dealing with specialty that is wider than ours, so we can give undertakings to a foreign country in those circumstances. But on the question of extradition, since it involves the Executive in the way that it does in relation to some of the instances that were posed earlier, such undertakings as to quite detailed specialty could be extracted any time.
GUMMOW J: But I think Mr Holdenson’s complaint when it comes down to it is not that there has been an abuse of the undertaking.
MR COGHLAN: No, I follow that he does not, your Honour. I was just looking at it from the context of testing it about whether or not ‑ Justice Kirby seemed to be concerned in general terms as to whether there was a bit of cheating going on here in the sense that ‑ ‑ ‑
KIRBY J: No, that is not quite the point. The point is that international law works on the conformability of the conduct of nations with a degree of reciprocity and where you have a request and counsel abandoned the substantive events and the offences for which – let them be English offences in the mind of the magistrate – the extradition is ordered, omit those, then it is a lack of candour and the type of reciprocity that is, at least as I read it, inherent in the scheme of the Extradition Act that we are not giving and, if we do not give it, we will not get it. That is the concern that I have. In international relations you generally get what you give.
MR COGHLAN: We say the difficulty about that, your Honour, is that it really has some issues of English law tied up in it, in that the English can deal with what we cannot deal with, exactly the response that we take in the way that we deal with extraditions to other countries, that it is bound up in that.
KIRBY J: That would be a more powerful argument if there were relevant differences between English law and our law, but on this matter there are not.
MR COGHLAN: But in relation to which, your Honour, the specialty undertaking is separately given which gives that protection. The protection is there in any event and that is, as Justice Gummow has observed, there is no ‑ ‑ ‑
KIRBY J: But does not that reinforce the obligation to conform to the offence for which the extradition has been ordered, that not only is this what the magistrate has done but it is what Australia has given an undertaking it will do.
MR COGHLAN: Yes, provided they were the Australian offences, your Honour, because that is where the real difficulty lies, it is submitted, because the discharge by magistrates about English offences will rarely, if ever, be to the point, because they might be to do, not with our law, but with English law. I know we say we think the law in England is similar. We might think the law between New South Wales and Victoria is similar, but it is no better than similar, your Honour, and there are now more differences than there are similarities, I suspect.
KIRBY J: Not in the common law; it comes together here.
CALLINAN J: You cannot go behind the statement of the conduct, can you, in the extradition proceedings?
MR COGHLAN: No, your Honour, and it is not suggested that we would. The statement of the ‑ ‑ ‑
CALLINAN J: No, I mean the appellant cannot either ‑ ‑ ‑
MR COGHLAN: No, that is so, your Honour. Again, that is an issue that has arisen so often as it relates to the question of double criminality and it is not really what we are faced with here, because one of the things that is clear, and one of the things that section 42 plainly recognises is that you are not bound only by those offences for which the extradition was granted; there are other offences. There is a general scheme that accepts that trial for other offences is acceptable. That is the beginning point of the second part of section 42. It is there to say other offences can be tried and it describes them in terms of the course of conduct that related to the other offences. It is submitted here, and I really do not need to go any further than this, to say there is no offence to that principle in what happened in this case.
KIRBY J: What about the words in brackets? Do they apply or not? That is to say “being an offence for which the penalty is the same”. Well, that is the same in the case of murder and conspiracy to murder.
MR COGHLAN: Yes.
KIRBY J: But is it the same in respect of kidnapping and conspiracy to kidnap?
MR COGHLAN: It is, your Honour, yes. The point about that, your Honour, is that since the commission of the offence now in Victoria if you committed the offence of kidnapping contrary to section 63A of the Crimes Act the penalty is 25 years.
KIRBY J: Yes. Well, that is irrelevant to this case because the appellant was only liable to be punished on the law as it stood at the relevant time of the offence.
MR COGHLAN: And if that were not the principle, your Honour, it is covered in any event by section 114 of the Sentencing Act in Victoria.
KIRBY J: What is that section?
MR COGHLAN: Section 114, your Honour. It is referred to in the submissions.
McHUGH J: But does not the problem arise in this way, that, with great respect, the magistrate has misunderstood what he had to do, and his problem seems to me at the moment to have arisen in this way. Under section 9(9) of the English Act he was required on committing the appellant to issue a certificate showing the offences which would be constituted by the conduct, by his conduct, and that certificate is set out at 45, 46. He refers to conduct alleged to be within the jurisdiction. Then he sets out the English offences.
When he came to write his judgment he seems to have misunderstood what it was he was surrendering, because on 39 he says that the government seeks his return on these offences, all of which seem to be the English offences. Then he makes his order under 9(8), which appears at page 43, and then when the warrant of commitment was filled in the person who did it, as appears at page 48, copied the English offences into the surrender warrant, when it should have been the Australian offences. Nobody seems to have understood what they had to do under the English legislation.
MR COGHLAN: No, I think the way things went up until that last document, that is what we have called the surrender warrant ‑ ‑ ‑
GUMMOW J: That is at 48?
MR COGHLAN: Yes. The reference to the English offences everywhere up until that point was entirely appropriate.
GUMMOW J: For double criminality.
MR COGHLAN: For double criminality and that is ‑ ‑ ‑
McHUGH J: I am not sure about 39. That is wrong when it says “to kidnap, blackmail, and murder”. Maybe not, maybe it is referring to the Australian offences there. Page 39, paragraph 1:
The Government of Australia seeks the return of Mr Truong so that he can face trial in Australia in respect of linked allegations that he conspired with others to kidnap, blackmail, and murder. There is a further conspiracy –
Now, that was not what the Australian Government was seeking. It was seeking his return on Australian offences and the magistrate’s duty under 9(8) was to determine whether those offences were extradition crimes and whether, if those crimes had taken place – and that is a hypothetical crime as I think was said in Pinochet’s Case, you have to test it hypothetically ‑ ‑ ‑
MR COGHLAN: But 9(8), your Honour, though, is an English crime.
McHUGH J: Yes, it is an extradition crime so one has to be able to say that the Australian offence is an extradition crime by the law of England.
MR COGHLAN: No, your Honour, the authority to proceed that he is then proceeding with, that has been issued pursuant to section 7, deals solely with English offences.
McHUGH J: What, section 9?
MR COGHLAN: Yes.
McHUGH J: In one sense, it does, but it takes its stand on Australian crime. Look at 9(8):
Where an authority to proceed has been issued in respect of the person . . . after hearing any representations . . . that the offence to which the authority relates is an extradition crime ‑ ‑ ‑
MR COGHLAN: Yes, but that is an extradition crime, your Honour, pursuant to section 2(1) of the English Extradition Act.
McHUGH J: Exactly.
MR COGHLAN: The English Extradition Act. It is an English crime, because the authority that he has ‑ ‑ ‑
McHUGH J: In Pinochet’s Case, I think Lord Browne‑Wilkinson spoke about it as being a hypothetical offence.
MR COGHLAN: See, the process, as I understand it, basically is this, your Honour, that pursuant to section 7 ‑ ‑ ‑
McHUGH J: Look, unfortunately, as usual, when we get a copy of an Act we do not get a copy of the definitions. Nobody ever seems to worry about copying definitions, but from what you read out to us, section 2(1) spoke about an extradition crime in designated Commonwealth countries which carries an offence of 12 months or more.
MR COGHLAN: Yes, it is:
conduct in the territory of a foreign state, a designated Commonwealth country or a colony which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment –
So it is conduct, which if it occurred, but in particular in relation to 9(8), your Honour, what is identified is that as the authority to proceed, there is no doubt that the authority to proceed is expressed in terms of English offences pursuant to section 7 of the Act. What happens is that the Home Office, whoever has to deal with it, do their best to convert the Australian offences into what they see are the English offences, and that is the document that is at page 35, which is undoubtedly a recitation of English offences, and it is those offences, and no other, with which the magistrate is dealing.
McHUGH J: It does not look to me that the document at 35 as being – well, some of it may be, but there is a reference to the “offences of murder, false imprisonment”, et cetera.
MR COGHLAN: Yes, but it seeks to identify extradition offences, your Honour, by reference to:
which appears to the Secretary of State to be conduct which had it occurred in the United Kingdom would have constituted offences of –
It is a plain reference to English offences, it is submitted. That is where, for the first time incidentally, the fraudulent evasion on the prohibition intrudes into the documentation. The submission that I otherwise make in relation to the second ‑ ‑ ‑
McHUGH J: Anyway, whatever the background is or whether you are right in saying that the error is only at the end, the fact is that the document which is the warrant of surrender at 48 is surrendering the English offences when both by the form and by the terms of the section it should have been the Australian offences.
MR COGHLAN: That is our submission, your Honour, yes. It should have been the Australian offences.
McHUGH J: Yes, it should have been, but they have not done it. So, what does that mean, that there has been no proper committal at all, no proper surrender at all?
MR COGHLAN: If that is so, your Honour, then section 42 does not operate ‑ ‑ ‑
GUMMOW J: Does not operate. It is no problem for you.
MR COGHLAN: ‑ ‑ ‑ and my friend would need to demonstrate abuse, which, it is submitted, cannot be demonstrated in this case.
KIRBY J: It is a novel situation for this Court, after 100 and more years of the English judges sitting in review of our judicial officers, for us to be sitting in review of one of theirs.
MR COGHLAN: Yes. Well, we look to be a fair bit in front, at the moment, I think, your Honour, on this analysis.
GLEESON CJ: It is a pretty one-sided contest.
MR COGHLAN: But I do not want to trouble the Court further. I think the other submission is clear in the written submissions as it has been made out and where I join issue with my friend and why we say the decision of the Court of Appeal below insofar as it contends for the expanded definition of the second part of section 42 is not attended by error.
GLEESON CJ: Thank you.
GUMMOW J: Just a minute. You do not dispute, do you, that the appellant has standing, if that is the right word, to raise section 42, if, of course, there is any substance in the complaint? In other words, you do not contend, do you, that 42 operates simply as between us and the United Kingdom?
MR COGHLAN: Your Honour, I have come too far in this case to now make that contention, but I can say this to your Honour, I did look at it and it is a considered decision as to the ‑ ‑ ‑
GUMMOW J: I just want to be clear what the position is, that is all.
MR COGHLAN: Yes. It is as to saying that we think he does have rights pursuant to the section.
GUMMOW J: Thank you.
GLEESON CJ: Thank you. Yes, Mr Holdenson.
MR HOLDENSON: Three matters. Your Honour the Chief Justice asked a number of questions earlier today concerning whether or not Johns, Miller, McAuliffe representing the law in Australia represented the law in England and I indicated in no uncertain terms that my belief was in the affirmative; they were the law there. I have checked a leading English text, Smith and Hogan, Criminal Law, Eighth Edition – there is now a Ninth or Tenth, but the Eighth Edition in 1996 at page 148, makes it absolutely clear that the law in Australia on that point is identical to the law in England.
GLEESON CJ: I think the Australian cases follow the Privy Council decision, did they not – with the Chinese name?
MR HOLDENSON: Yes.
GUMMOW J: On an appeal from Hong Kong.
MR HOLDENSON: Yes, that is right. Your Honours are thinking of Chan Wing‑Siu v The Queen.
GLEESON CJ: Yes. Lord Cooke wrote the leading judgment.
MR HOLDENSON: Yes, that is correct, in 1985. Secondly, subject to any queries or concerns of your Honours, we join issue with those submissions which have been put against us and say in conclusion that the operation and effect of section 42(a) has been such as to restrict the power of the prosecutor in this case to make the presentment which was made specifying those two counts it did specify. If the Court pleases.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 4.15 PM THE MATTER WAS ADJOURNED
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