Truong v the Queen M48/2002

[2002] HCATrans 652

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M48 of 2002

B e t w e e n -

HONG PHUC TRUONG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 11.44 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 applicant.  (instructed by Clarebrough Pica)

MR P.A. COGHLAN, QC:   May it please the Court, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Holdenson.

MR HOLDENSON:   This application concerns section 42 of the Extradition Act and, more particularly, whether the trial of the applicant in the Supreme Court was conducted contrary to that section.  Section 42 embodies the rule of specialty which was applicable to the trial of the applicant, the applicant having been extradited from the United Kingdom, and in that regard there was no applicable treaty and the relevant regulations were silent on the question of specialty.

Section 42 is conveniently located in the application book at page 247 and we might take your Honours to that section and your Honours will see that:

Where an extraditable person in relation to Australia is surrendered to Australia by a country . . . the person shall not . . . 

(a)  be detained or tried in Australia for any offence that is alleged to have been committed . . . before the surrender of that person, other than –

and then there is (i) and (ii).  Subsection (ii) was inapplicable to the instant case, and in respect of (i), that can be broken up into two parts and in so far as it is applicable to this case, keeping in mind section 10(2), the interpretation provision, which your Honours will note catches the phrase at the conclusion of (i), section 10(2) being set out at the head of the next page, means this for the instant case.  The applicant should not have been tried for any offence alleged to have been committed before his surrender to Australia, other than first, “any offence in respect of which” he “was surrendered” to Australia, namely conspiracy to kidnap and conspiracy to murder – and in respect of that point, this applicant was not tried on either of those two offences – or moving on to the second limb of (i), or any offence of which he “could be convicted on proof of the” acts or omissions, or both, by virtue of which these offences, that is the statutory offence of conspiracy to kidnap ‑ ‑ ‑

HAYNE J:   Is that right?  Was he extradited for the statutory offence?  Was he extradited for what the British regarded as the offence of, et cetera?  What was he extradited for?

MR HOLDENSON:   The actual surrender warrant, which is within the application book, makes reference to the two offences upon which the English magistrate committed.

HAYNE J:   Now, what are they?  Are those offences according to English law or ‑ ‑ ‑

MR HOLDENSON:   Yes.

HAYNE J:   Yes.  So it is not right, is it, to say that he was extradited for the statutory offence of conspiracy to kidnap or murder?

MR HOLDENSON:   If I could take your Honour back to section 42(a)(i):

any offence in respect of which the person was surrendered –

Now, Justice Ormiston in the court below in effectively delivering the judgment of the court below determined that the phrase “in respect of” went back to that which was the subject of application.  The surrender warrant in this case was the subject of prescription by regulation under the English regulations and that identified the two offences as being the offences upon which the English magistrate committed the applicant and in respect of those two offences, they being the ones subject to the double criminality provisions in England referable to the only two offences relevant for present purposes for which the extradition was sought by the Government of Australia, namely the two statutory conspiracies.

HAYNE J:   Now, as it happens, we have here extradition from one common law country to another and thus from countries which speak relevantly the same legal language, leave aside actual language.

MR HOLDENSON:   Correct.

HAYNE J:   This provision would have like application, would it not, in extradition from, for example, a civilian country?

MR HOLDENSON:   Not necessarily.

HAYNE J:   There may be qualification by treaty.

MR HOLDENSON:   Yes, and many of the treaties provide clear specialty provisions ‑ ‑ ‑

HAYNE J:   Yes, I understand that.

MR HOLDENSON:   ‑ ‑ ‑ which differ from and prevail over.

HAYNE J:   But, as I understand the linchpin of the reasoning in the Court of Appeal, it is that you cannot take the words in 42 as referring to those elements which, by, in this case, Victorian law, would constitute the offences identified in Victorian law, rather you must have regard to the conduct described in the statement of facts.  Do I accurately describe part of the reasoning?

MR HOLDENSON:   No – part of the reasoning, perhaps, but the reasoning ends up being you can have regard to the allegations of fact and the factual material put before the magistrate in the requested country.

HAYNE J:   Yes.

MR HOLDENSON:   Now, that includes affidavit material.

HAYNE J:   Yes.

MR HOLDENSON:   Now, that affidavit material can be the subject, in a given case, of all sorts of things.  For example, some of it might be ruled inadmissible and for those of us who read the All England Reports we note that there are numerous cases, and have been for quite a number of years, dealing with the question of whether or not a magistrate was right to exclude or should have excluded certain factual material, evidentiary material which was adduced before him or her.  So you have rulings made in these hearings.  You have parties not relying upon certain material.  You have magistrates not acting upon certain material.

HAYNE J:   Part of the difficulty in this case stems from the fact that the point is taken so very late that we are simply denied access to any record at all of what happened in the UK, save the barest formal record.

MR HOLDENSON:   That assumes the correctness of the construction of the court below as to what it is that the court is to have regard to in order to determine whether or not there has been a breach of this provision.  If, however, and, with respect, we would say it is a much more sensible construction apart from anything else, that regard is to be had to that which is definite, clear, no dispute, namely that for which the extradition was sought, the application was made in respect of the two statutory conspiracies.

HAYNE J:   And where do I find that most conveniently?  What piece of paper?

MR HOLDENSON:   Your Honour will find it conveniently in the opening note, which is something akin to an outline of submissions and ‑ ‑ ‑

GLEESON CJ:   I must be under a misapprehension.  I thought the application was made in relation to a wider number of offences and, for some reason that nobody now knows, was granted in respect of the conspiracies.

MR HOLDENSON:   If I could take your Honours to page 145, that is the first page of what we would call in this country an outline of submissions, made by counsel appearing on behalf of the Government of Australia, and if I could take your Honours to page 146, which is the second page of that document, your Honours will see there identified five offences in respect of which application was made.  The first is conspiracy to murder; the second is conspiracy to kidnap; the third was a blackmail; the next one is a blackmail and the last one is a drug charge.

HAYNE J:   Yes, that sits rather oddly with paragraph 1 at 145, does it not, where there is reference both to the substantive and to the conspiracy offences, if we are to adopt Australian language?

MR HOLDENSON:   In any event, what occurred at page 38 of the application book, when at the end of the day the magistrate made his decision – there is a set of reasons there which is clearly only referable to the conspiracy offences and the offences upon which this applicant was committed is to be found at page 46.  Your Honours will there see, at page 46, the same five charges that were at page 146, that is the second page of counsel’s outline of submissions, and, at the end of the day, the magistrate determined to commit this applicant in respect of the conspiracy to murder, conspiracy to kidnap, the third charge disappeared, and the last two, that is 4 and 5, are irrelevant.

GLEESON CJ:   It looks as though the magistrate worked from a draft document that was handed to him by counsel.

MR HOLDENSON:   That could be.  That would appear to be the case and that draft document is consistent with the content of the opening outline of submissions by counsel for the Government of Australia at page 146, probably transposed on the word processor, whatever.  But it is the same five charges, except one of them was deleted by the learned magistrate.

HAYNE J:   Mr Lewis, the author of this document – that is the document at 146 and following – goes on to refer at paragraph 5 to:

The murder charges relate to the kidnapping ‑ ‑ ‑

MR HOLDENSON:   It is a pretty loose way in which to speak.

HAYNE J:   It is not a masterpiece of drafting if you are concerned to distinguish between the conspiracy and the substantive offences, is it?

MR HOLDENSON:   That is correct, so the remedy lies with counsel for the Government of Australia, or to have sought consent.

HAYNE J:   Or those who might, perhaps, have done something other than enter a plea of not guilty when the man was presented and stood his trial.

MR HOLDENSON:   This is something on the authorities, first that cannot be waived.  It falls into Davies, accepted as correct by the case of AB in this Court, and it falls into that same category of cases where a person is entitled to rely upon a statute to demonstrate that his trial, hence conviction, hence sentence, are all unlawful – plenty of these cases.  Jury empanelled contrary to statute, jury contrary to statute, charges contrary to statute, consent not given to prosecute, convictions quashed and retrials on the appropriate charges are ordered.

Now, in this case, in respect of the question of construction, we rely upon the manner in which the interpretation provision has been consistently construed in the Federal Court, that is section 10(2).  That is a phrase or an expression used throughout the Act and within, for example, section 19, and that has given rise to an abundance of litigation in the Federal Court over the years.

The Federal Court has consistently – and in that regard if we could take your Honours to page 331 of the application book.  At 331, your Honours will see at the foot of the page our outline of submissions at paragraph 3.6.2 and your Honours will see that it is there said that the phrase “the acts or omissions, or both, by virtue of which the offence … is alleged to have … been committed” refers to the elements of the offence, including the requisite mens rea, and not the particular evidence relied upon or adduced to prove those acts or omissions.

Now, if that construction is correct, then clearly in respect of this case, keeping in mind that the test becomes, could the applicant have been convicted of the substantive offences of kidnap and common law murder on proof of the elements of the statutory conspiracies to kidnap and murder, then, if that is the question, the question can only be answered in the negative and the court below has, with respect, strayed from the construction consistently given by the Federal Court to that expression, hence the inconsistency between the two, and has adopted a construction referable to factual material, that is allegations of fact and factual material that is the subject of evidence which, in our submission, gives rise to all sorts of absurdities and difficulties of application to which I have made reference already, namely what it is to which the magistrate at the end of the day had regard.

Often, the material will not be – that is, the entirety of the material – the subject of consideration and reliance by the magistrate or tribunal in the requested country, just as, for whatever reason, the counsel for the Government of Australia in this case determined not to proceed in respect of the two substantive offences.

HAYNE J:   Sorry, you say “determined not to proceed”.  Upon what do you base that?

MR HOLDENSON:   He had eight charges before him and ‑ ‑ ‑

HAYNE J:   Sorry, you speak as though there was a conscious decision to abandon.  Am I understanding you ‑ ‑ ‑

MR HOLDENSON:   Well, no, I am not able to say that there was a conscious decision to abandon, but presumably he turned his mind to his drafting at page 146 and the piece of paper which he handed up which is at page 46, and keeping in mind that at the end of the learned magistrate’s reasons there was presumably an opportunity for counsel to say, “Excuse me, sir, you got it wrong.  We really wanted this man on eight charges, not five.  We accept your Worship’s decision as to charge 3, but we really wanted this man back into Australia on the other three”, whatever it is.  Now, that is not what happened here.

So there was a decision, whether conscious or subconscious, to not bring this man back here in respect of the substantive offences, and yet they are the offences upon which he was extradited and if the construction given by the Federal Court to this interpretation provision is correct, then it can be demonstrated by reference to the elements of the offences that this man would not have been convicted on either offence, that is either of the offences, the subject of presentment in the trial court.

Now, the court below in determining the construction was able to get around all those decisions and, in our submission, did so erroneously.  It was not said in the court below that this is not a point that can be taken by a convicted person.  It was not said in the court below that this can be waived.  It was not said that this was good for one of the offences upon which he was convicted and not the other.  This is a question about the lawfulness of the trial.

The court, in reaching the decision it did, made a number of observations which, in our submission, are relevant not just to this case, but all other cases where the point is taken.  The court below, at one point in the judgment, declared that the drafting of the relevant provisions of the Extradition Act was conducive to confusion and seemed to express some sort of regret that there were no binding authorities with respect to section 42 in this context, and stated that the first time that this type of point had been taken by a convicted person was this case, and that added to the court’s difficulties.

If the court below’s construction is correct, notwithstanding the difficulties to which we have already pointed, it would have extraordinary outcomes and when you demonstrate that by reference to this case, your Honours will recall that in the application book there is set out over many, many pages the so‑called Tragardh affidavit.  That was the affidavit which was prepared by a Victorian police officer and was presented, with the material, to the magistrate in the United Kingdom.

Now, that affidavit contains extensive allegations as to the conduct of two persons involved with the alleged commission of crimes in this case, the brothers Bui, and there is extensive detail there as to communications between the Bui brothers and the applicant.  Now, those communications included – so it is there, directions given by the applicant to the Bui brothers to travel to Australia. 

If we just change the affidavit material slightly to demonstrate the point, assuming that the Bui brothers travelled into Australia from overseas under assumed names and assuming also that that was at the direction of, or pursuant to a command of the applicant.  The meaning given by the court below to section 42 would enable the Crown, under the second limb of the specialty provision within (i) of section 42(a), to prosecute the applicant for procuring a breach of Commonwealth statutory offences that there are referable to defeating of passport laws, the immigration laws, travelling into the country, false declarations on incoming passenger cards and the like, and yet, clearly, that was never in the mind of any police officer as an offence in respect of which the extradition of the applicant was sought, nor an offence in respect of which he might, one day, be prosecuted.  Yet, the construction given by the court below to this statutory provision enables that to take place.  With respect, we say that that could not have been within the intention of the legislature.

GLEESON CJ:   Could you just remind us, where did the conduct of the applicant that constituted the offences of which he was alleged to be guilty, that is the conspiracy offences, occur?

MR HOLDENSON:   In respect of the conspiracy to murder, the applicant was outside this country for most of the period of time, that is, he was overseas – albeit telephone contact which was relied upon by the Crown – and he was certainly not in this country at the time of the killing of the deceased.

Your Honour’s question takes me, in a sense, to the next point. Putting aside the strict construction to be given to section 42, the way in which the substantive offence of murder was prosecuted gave the Crown an unfair advantage such as to constitute the trial on the substantive offence of murder and abuse. The application was for this man to come back and stand trial for the statutory offence of conspiracy to murder which, under our statute in Victoria, section 321(1) of the Crimes Act, requires an intention to kill in the person in the position of the applicant and one other.

GLEESON CJ:   What is the territorial reach of the Victorian statute?

MR HOLDENSON:   No such point was taken, but section 321(2)(a) would seem to extend it.  I say seem to, as I recall not a point yet determined as to how far it goes to, as to extra territoriality it may be a question arising, but going back to the unfair advantage conferred upon the Crown, they prosecuted a Johns or a McAuliffe murder, a common purpose murder, and pursuant to that Crown case the jury were specifically directed that it was not necessary for the jury to find before convicting on the substantive offence of murder an intention to kill.

The Johns/McAuliffe murder, which was prosecuted, was referable to him being aware that it was a realistic possible consequence of the kidnap that the deceased might, that is a possibility, be murdered.  Now, that is very different from the offence in respect of which the extradition was sought and the surrender warrant was granted.

GLEESON CJ:   Thank you.

MR HOLDENSON:   I see the red light ‑ ‑ ‑

GLEESON CJ:   Yes, it has gone.

MR HOLDENSON:   If the Court please.

GLEESON CJ:   Yes, Mr Coghlan.

MR COGHLAN:   The applicant was extradited, ultimately for conspiracy to murder arising out of a particular murder which had taken place and in relation to which the conspiracy did not otherwise exist or be known to exist.  He was tried for the murder and he was tried on a basis which was almost identical to the basis which had been put at all times from the application of extradition onwards.

Ordinarily, cases involving offences against the principles of specialty will be completely obvious, that is either because of the statutory provisions which would say you may only strictly try someone for the offence for which they have been extradited, then the situation is clear – not this case.  Where some wider provision operates and the charge is so plainly outside the terms and factual circumstances of the purpose for which extradition is sought, specialty will apply – not this case.

In Australia it is clear that the second clause of section 42(a)(i) is intended to allow a wider interpretation in Australia to the notion of for what you may be tried having been returned, and in the present context, the distinction between murder and conspiracy to murder is, in fact, illusory.

GLEESON CJ:   Are the penalties for conspiracy to murder different from ‑ ‑ ‑

MR COGHLAN:   No, they are life imprisonment in relation to each case, your Honour.

GLEESON CJ:   For both.  The same with kidnapping?

MR COGHLAN:   Kidnapping and conspiracy to murder is the same. 

GLEESON CJ:   I mean, same penalty for substantive offence and conspiracy?

MR COGHLAN:   Yes.  You see, what happened in this case was a request was made and received by the English authorities.  The English authorities approved the request and at page 35 of the application book, authorisation to proceed was given and it was given in these terms.  The conduct which was spoken of – and about halfway in the middle paragraph at page 35:

which appears to the Secretary of State to be conduct which, had it occurred in the United Kingdom, would have constituted offences of murder, false imprisonment, conspiracy to commit murder, conspiracy to commit blackmail, conspiracy to kidnap, threats to kill, conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin.

That last offence is expressed in terms which are very peculiar to the English legislation because importation cases in England have traditionally been dealt with on the basis that what they constitute is the evasion of the duty, not so in Australia.

HAYNE J:   But is not this, Mr Coghlan, to dive into the problem in the middle rather than at the start?  The problem here is a problem of statutory construction of section 42.  Section 42 invites attention to an:

offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:
(i) any offence in respect of which the person was surrendered –

First step, identify the offence for which the person was surrendered.  Is that right?

MR COGHLAN:   That is so, your Honour, and that is ‑ ‑ ‑

HAYNE J:   Why do we not then begin at page 48?

MR COGHLAN:   Yes, that is what I am coming to, your Honour.

HAYNE J:   Well, 48 is the surrender document relevantly, is it not, or am I wrong in that?

MR COGHLAN:   It is, your Honour.  That is a surrender warrant, yes.

HAYNE J:   Now, unlike the one you have just been taking us to, which is at 35 which speaks of conduct which:

had it occurred in . . . would have constituted –

this, that or the other.  When we get to 48 we find:

who is accused of offences of –

Question:  are those offences according to English law, offences according to Australian law, offences how identified?

And whereas a Metropolitan Stipendiary Magistrate, being satisfied that the evidence given before him would be sufficient to warrant the fugitive’s trial for these offences if they had been committed in the Inner London area –

Now, are those English offences, Australian offences, what are they?

MR COGHLAN:   They are plainly English offences, your Honour, and I was seeking to say that it really carries through from the request where the request was to proceed on the conduct which would have constituted the offences in England, those offences, and in relation to the one:

conspiracy to be knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin –

an offence known to the English law, not the Australian law, it is plainly the notion of what were the English offences continued in the way that this exercise was conducted.

HAYNE J:   Now, assume that is all so, and that may be debated. 

MR COGHLAN:   Yes.

HAYNE J:   That seems, simply, to present the question for decision, does it not?

MR COGHLAN:   It does, your Honour.

HAYNE J:   Now, short of us saying, sitting as a Full Court of two, that the decision below is plainly right, we are faced, are we not, with a decision that is of widespread importance?

MR COGHLAN:   Except, your Honour, the question of specialty is usually so obvious.

HAYNE J:   Has this Court either at all, or at least recently, considered specialty?

MR COGHLAN:   No, they have not, your Honour.

HAYNE J:   Has the Full Court of the Federal Court?

MR COGHLAN:   Not that I am aware of, your Honour.

HAYNE J:   So we have the decision of the Court of Appeal of Victoria, which no doubt you seek to support, but that is it.

MR COGHLAN:   That is it, your Honour, except for, as my friend says, what has been said in what we call the section 19 cases.  Now, it is submitted that the distinction as it is properly analysed by Mr Justice Ormiston who delivered the principal judgment, adopted by the other members of the court, that that distinction is properly made between what conduct constituting an offence might mean for the purposes of double criminality as against what is involved, but I am mindful, your Honour – and I will not resile from it – of the proposition that it is an interesting point.  It is probably an important point.  However, we say that in this case where you are dealing with the very minor distinction that relates to the distinction between murder and conspiracy to murder, that this is not the appropriate vehicle.

HAYNE J:   Well, there is the minor distinction that you need a body for one.  You do not need a body for the other.

MR COGHLAN:   But you always needed a body in this case, your Honour, because that is the only circumstance in which it arose.

GLEESON CJ:   I suppose what your opponent has going for him is that, in this case, we can consider the issue free from any distractions of merit.

MR COGHLAN:   He is, your Honour, yes, and that is in part because of the way in which things arose.  I do not for a moment suggest that this point was ever kept back or reserved for any purpose.  It was a matter that simply nobody turned their mind to at the time of the trial.

HAYNE J:   Does it follow that there is no question of waiver that arises?

MR COGHLAN:   No question of waiver arises in this case, your Honour.

HAYNE J:   So it is the bare question of presented by the construction of 42 and to the extent relevant, 10?

MR COGHLAN:   Yes, and we say, your Honour, starkly demonstrated in this case, if we offer the contention of our learned friends as to how that is to be interpreted, it is almost, if not entirely, to render it free of meaning.

GLEESON CJ:   Does any constitutional question arise?

MR COGHLAN:   No constitutional question, no, your Honour.

HAYNE J:   Is there not a 109?  At the moment this man was tried and convicted under Victorian law.  You have a Commonwealth statute which is now prayed in aid.  Is there not a 109 floating around, Mr Coghlan?

MR COGHLAN:   No, because we are so obviously bound by the common – I do not think any inconsistency arises, your Honour.  We simply accept we are bound by the provision of the Commonwealth legislation.  It really does simply, it is submitted, come down to the question of what is the proper interpretation of section 42.  Does it allow for variations such as that contended for by the respondent here, or is it to be

limited to an elemental construction?  Our submission in relation to that is that what was said in the Court of Appeal is perfectly correct.

HAYNE J:   It occurs to me that the Commonwealth may have a particular interest in what is to be made of 42.  I do not know whether you are right or wrong that 78Bs are not necessary, but it would seem that there would be, at least, some advantage in the Commonwealth knowing of the existence of the dispute.

MR COGHLAN:   Whether the Commonwealth might want to intervene would be another matter, your Honour, but whether that is actually because of – they have a plain interest in the interpretation of section 42 because it is, after all, the Commonwealth who conduct the whole extradition proceedings, not the State.

HAYNE J:   No doubt mightily informed by the terms of the Criminal Code rather than the Crimes Act 1958.

MR COGHLAN:   An argument I would prefer not to get into, your Honour.  Apart from those matters for which I contend in the strongest terms for the support of the decision below, there is really nothing further that I can add to the argument.

GLEESON CJ:   Yes, in this matter there will be a grant of special leave to appeal.

AT 12.16 PM THE MATTER WAS CONCLUDED