Unkel v Director of Public Prosecutions

[1990] FCA 150

Re: DERK ANTHONY UNKEL
And: THE DIRECTOR OF PUBLIC PROSECUTIONS and THE UNITED STATES OF
AMERICA
No. Qld G134 of 1989
FED No. 150
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Extradition - review of magistrate's order to commit applicant to prison to await surrender - consideration of relationship between Extradition Act 1988 and Extradition (United States of America) Regulations - whether Act requires that evidence be produced sufficient to justify trial or committal for trial - whether acts which had taken place constituted an extradition offence - meaning of "offence" - whether evidence showed importation of narcotics.

Extradition Act 1988, ss.11, 19

Extradition (United States of America) Regulations, Schedule

HEARING

BRISBANE

#DATE 9:4:1990

Counsel for the applicant: Mr W.L. Rosen

Solicitors for the applicant: Warren Rosen and Associates

Counsel for the respondents: Mr P.F. Rutledge

Solicitors for the respondents: Director of Public Prosecutions

ORDER

The orders of the magistrate in respect of Derk Anthony Unkel, made on 4 December 1989 under s.19(9) of the Extradition Act 1988, be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant applies for a review of orders made by a magistrate under s.19 of the Extradition Act 1988 (the Act). The magistrate, Mr K.E. Krosch, determined that the applicant is eligible for surrender to the United States of America in relation to certain offences and made consequential orders. The application for review challenges the magistrate's orders, principally upon the grounds that evidence was wrongly admitted, and that the material before the magistrate did not raise a prima facie case of guilt in respect of the relevant offences.

1. The magistrate's orders related to four counts, all connected with importation of what was said to be about 11,300 lbs of marijuana to the United States. Each count was founded on a provision of Title 21 of the United States Code. Put briefly, the counts were:
   

1. importation of marijuana;

2. possessing marijuana with intention to distribute;

3. conspiring to import marijuana;

4. conspiring to distribute marijuana.

1. The law relating to the matter is contained, not only in the Act, but in the Extradition (United States of America) Regulations (Statutory Rules No. 298 of 1988) (the Regulations). A Treaty on Extradition between Australia and the United States of America, which came into force on 8 May 1976, is a schedule to the Regulations. Before discussing those provisions, some account of the facts should be given.

2. The material placed before the magistrate included an affidavit of one Peter Dale Cree, containing the following assertions:
   

Cree said in that document that he went to Sydney about January 1988 to inspect a sailing vessel, the "Japy Hermes". He met crew members, including the applicant, a recent addition to the crew. The applicant joined the crew at the Mooloolaba Yacht Club, where he worked on vessels needing repairs. Subsequently, the vessel was sailed to the Philippines with the applicant as a member of the crew. Thereafter, the applicant apparently left the vessel and worked maintaining a boat in Malaysia, and also helped laying decks on boats for Cree.

In August 1988, Cree was asked to transport some marijuana on the "Japy Hermes" to the United States, in consideration of which he was to receive U.S.$200,000. In late August or early September 1988, Cree and others left Cebu in the Philippines to meet another boat at sea to obtain the marijuana to take to the United States. They were unable to make contact with it and returned to the Philippines. Then Cree again asked the applicant (who was apparently still in the Philippines) if he wanted to go sailing for a long time. It appears that the applicant had refused to take part as a crew member in the initial, abortive, attempt to obtain the marijuana.

Late in October 1988, the applicant and others sailed the "Japy Hermes" out to sea, met another vessel, and loaded marijuana onto the "Japy Hermes". The vessel was then sailed to the United States with the applicant among the crew; his tasks were to change sails, cook and keep a lookout. When the vessel was "a couple of hundred miles" from the United States, Cree was unable to make a pre-arranged radio contact to get instructions as to how, when and where the marijuana was to be transferred to other people to be taken ashore and distributed. The applicant asked what would happen if they went ashore and were caught, and Cree said, "We'll go to gaol." The applicant then said he did not realise that "this was such a serious thing and now I wish I wasn't here".

In the event, the vessel sailed on and anchored about half a mile offshore in a cove in the State of California. There were discussions about off-loading the marijuana, but a U.S. Government vessel hove in sight. The crew left the "Japy Hermes" and went ashore, whence the applicant ultimately returned to Australia and resumed his former occupation.

According to the material, the minimum penalty for each of the offences in question is imprisonment for ten years and the maximum "not more than life".

1. I do not propose to analyse the provisions of the statute or the treaty in detail, but shall deal with the principal provisions which define what has to be shown with respect to the alleged offences, in order to justify a determination that the applicant is eligible for surrender. The discussion will be deliberately general, in some respects, as it is written on the assumption that the reader will have the Act ready to hand, to ascertain the precise terms of the provisions mentioned. Section 5 defines "extradition offence" so far as relevant, in terms of the maximum penalty applicable; the offences with which I am concerned plainly come within the definition.

2. That is, the test is, so far as relevant, whether the maximum penalty is not less than 12 months imprisonment and that is satisfied. The argument advanced by Mr Rosen on behalf of the applicant was based on two assumptions: firstly, it assumed that there must be evidence showing at least prima facie that an offence has been committed, and secondly, that the allegations of fact made must be shown to support the charges.

3. To one unfamiliar with the Act and the Treaty, the assumptions might not seem unreasonable. It might be expected that, to justify extradition, there would have to be at least prima facie evidence of wrongdoing, and in particular evidence of commission of the offences charged. If that be not so, then at least the majority of the points taken on behalf of the applicant become irrelevant, for they related to admissibility of evidence and to whether there was evidence of commission of the offences charged in counts 1 and 2 above.

4. The Treaty appears to contemplate that there will be evidence of commission of an offence. Article VI reads as follows:
   

"Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted by the courts of the requesting State."

1. However, the Act specifies fairly precisely what must be produced to the magistrate and what he must be satisfied of before he can make such an order as is here attacked. There is no requirement in the Act that evidence be produced sufficient to justify trial or committal for trial. The first question is whether one should read such a requirement into the Act because of the terms of Article VI of the Treaty.

2. The Treaty, to the extent that it becomes part of domestic law, does so under the Regulations. Section 55 of the Act empowers the making of regulations not inconsistent with the Act. Section 11 reads in part as follows:
   

"(1) The regulations may:

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

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

...

(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facie evidence test is satisfied.

(5) For the purposes of subsection (4):

(a) a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to:

(i) justify trial of the person in relation to an offence against a law in force in the part of Australia;

(ii) justify committal of the person for trial in relation to such an offence; or

(iii) establish a prima facie case that the person committed such an offence; and

(b) a reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence.

(6) For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a),

(b), (c) or (d)."

My view of the effect of these provisions on Article VI, put broadly, is as follows. Subsection (1) makes Article VI apply to this case, but subs.(4) requires one to read the Article down in accordance with subs.(5)(b) - i.e. to read it as if it required the provision of evidence which, if uncontroverted, would be enough to put the person on trial or give grounds for inquiry by a Court, if the conduct complained of had taken place in Australia. Then subs.(6) implies that provisions such as Article VI bind a magistrate, even if not mentioned in subs.19(2) of the Act, which is referred to in more detail below.

1. The end result is that para.(b) of subs.(5) is deemed, because of the presence of Article VI in the Treaty, to be a condition which must be satisfied before a magistrate may make an order of the kind attacked here.

2. A number of objections may be made to the conclusion just mentioned.

3. The first is that the Regulations do not state precisely what is set out in para.(a) of subs.(1), quoted above. They state, instead:
   

"The Act applies in relation to the United States of America subject to the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976 (being the treaty a copy of the text of which is set out in the Schedule)." (Reg.4)

1. The reason for this discrepancy between the wording of the regulation and that contemplated by the Act is unclear, but it is my opinion that one should read Reg.4 as if it contained such a statement as is mentioned in para.(1)(a) of s.11.

2. The next objection to my conclusion is that I treat Article VI as imposing "the sufficient evidence test" referred to in subss.(4) and (5). The definition of "sufficient evidence test" in subs.(5) does not correspond precisely with Article VI, in that the definition refers to evidence that would be sufficient to justify trial "in relation to an offence against a law in force in the part of Australia" (emphasis added). Article VI, on the other hand, refers to evidence to justify trial or committal for trial "if the offence with which he is charged or its equivalent had been committed in that territory ..." (emphasis added). This difference may be of importance where the evidence is enough to justify trial in relation to some offence under the law in force in the relevant part of Australia, but not enough to justify trial in relation to the particular offence with which the person is charged, or its equivalent. However, in my opinion one should, in accordance with principle, not treat this lack of correspondence between the terms of Article VI and those of para.(5)(a) as destroying my conclusion. The reason is that if the opposite view is taken, then Article VI becomes irrelevant; if it falls outside subs.(4), then it is excluded from consideration by subs.(6). It appears to me that one should tend to construe subs.(5) generously in accordance with its apparent intention and so as to advance the liberty of the subject.

3. The last objection to my conclusion is that the High Court in Riley v. The Commonwealth of Australia (1985) 159 CLR 1, although it treated Article VI as applicable to the case before them, read it as having a merely procedural effect. It was there argued that Article VI requires that it be shown that an offence has been committed against the law of the part of Australia where the person is found (13). That contention was rejected, the Court holding that: "The provision does not define the duty to grant extradition, but deals only with matters of evidence" (13). It appears to me that the Article has a different effect now, because of the provisions of s.11 of the Act, which had no counterpart in the statute which the High Court had to consider, namely the Extradition (Foreign States) Act 1966.

4. It should be added that the magistrate did not analyse the problems just referred to, nor were they discussed by counsel before me. My conclusion that the magistrate must consider the matter set out in s.11(5)(b), as well as considering the matters specified in s.19(2), is one reached by a complex and uncertain path; it may seem unfortunate that it is so difficult for a magistrate to ascertain what it is that he has to decide, when confronted with an extradition application.

5. To return now to s.19(2), it makes a person eligible for surrender in relation to an extradition offence if, so far as relevant, the "supporting documents in relation to the offence" are produced (para.(a)), if certain other conditions not presently relevant are satisfied and:
   

"(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; ..."

1. Looking at the expression "the conduct of the person constituting the offence" in isolation, it seems ambiguous; it could mean simply the definition of the offence, or on the other hand, the acts or omissions of the person sought to be extradited, by virtue of which the offence is alleged to have been committed. Section 10(2) makes it clear that the latter is intended, so that under s.19(2)(c) the magistrate must be satisfied that if those acts or omissions or "equivalent conduct" had taken place here, that would have constituted an extradition offence - i.e. one making the offender liable to at least one year's imprisonment. It is important to note that the magistrate does not have to be satisfied, under para.(c), that the acts or omissions would have constituted an offence corresponding to the particular one charged, a view of para.(c) which is reinforced by the terms of s.10(3)(b). It should also be noted that by reason of s.10(3)(a), where the "conduct constituting the offence" consists of more than one act or omission "regard may be had to all or to only one or some of those acts or omissions".

2. The expression "supporting documents" is defined in s.19(3)(c) to include, so far as relevant to the issues here:
   

" (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii) a duly authenticated statement in writing setting out the conduct constituting the offence."

1. There is nothing which expressly links these two sub-paras.(i) and (ii); the statute does not say that the magistrate must be satisfied that the conduct stated under (ii) constitutes (in law) the offence described in (i). There was discussion of these provisions in Zoeller v. Federal Republic of Germany (unreported, 20 December 1989). The Full Court remarked:
   

"The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s.19(3)(c)(ii) ... All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s.19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law." (p 33)

1. This supports the view that the magistrate does not have to determine whether the "conduct constituting the offence", as set out in the para.(ii) statement, constitutes the United States offence described in the para.(i) statement.

2. To come back to s.11(5)(b), I have held that there must be evidence such that if the conduct constituting the extradition offence had taken place in Australia, it would "if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for an inquiry by a court, in relation to the offence". The expression "the offence" at the end of this quotation is a little vague, but since para.(5)(a) is parallel to para.(5)(b), I assume that "the offence" in the latter refers to "an offence against a law in force in the part of Australia" in the former; it would make no sense to require the magistrate to consider whether acts done in this country would provide grounds for a trial on a United States charge. The alternative view is that "the offence" at the end of (b) is a reference back to "the extradition offence" early in para.(b), but I think "the offence" in (b) refers to an offence against Australian law.

3. One could sum up the magistrate's duties by saying that, apart from being satisfied that the supporting documents comply with the Act, he must consider a notional Australian offence; one that is "notional" in the sense that the magistrate considers the material as if the acts complained of had taken place here. Under s.19(2)(c), he must consider whether the acts alleged, so relocated, would constitute an Australian offence carrying twelve months imprisonment and under s.11(5)(b) he must consider whether there is evidence (as opposed to mere allegations) tending to prove the commission of an Australian offence.

4. It is worthy of remark that the law appears to be that evidence and allegations which, if true, would justify conviction for a certain Australian offence if the facts occurred in this country, may found an application for extradition on quite a different offence or offences under United States law.

5. The consequence is that the points taken on behalf of the applicant are seen to be legally irrelevant. There is no doubt that there was evidence, in the affidavit of Cree referred to above, that the applicant participated in an importation of a large quantity of marijuana to the United States. There was, in addition, evidence of a documentary kind suggesting that the applicant served on the "Japy Hermes" in 1988 and evidence that when the vessel arrived in the United States it was loaded with marijuana. Leaving aside any other part of s.233B of the Customs Act 1901, it is enough to note that para.(d) of that provision makes guilty of an offence any person who "aids, abets, ... or is in any way knowingly concerned in, the importation ... into Australia of any prohibited imports to which this section applies ..." The expression "prohibited imports" is defined in such a way as to include marijuana: see s.233B(2) and the definition of "narcotic goods" and the definition of "narcotic substance" in s.4. The penalty exceeds twelve months: s.235(2) of the Customs Act.

6. It should be added that Cree's evidence leaves the marijuana offshore in a cove waiting to be unloaded. That would, under Australian law, be enough to show importation: Wilson v. Chambers and Company Proprietary Limited (1926) 38 CLR 131, followed in Forbes v. Traders Finance Corporation Limited (1971) 126 CLR 429 at 444.
   Objections to Evidence

7. Whether or not the objections which Mr Rosen took (here and below) to evidence adduced against the applicant are good, there is ample evidence left in Cree's affidavit to satisfy the Act. Therefore I do not propose to deal with the objections to evidence comprehensively. It is desirable, however, to give illustrations of the points Mr Rosen made.

8. It was contended that a sentence in an affidavit by a Coast Guard officer should have been excluded. The sentence reads:
   

"Affiant and other U.S. Coast Guard cutter Edisto personnel did maintain surveillance on the suspect vessel and observed no one on board the vessel or attempting to board the vessel."

1. This was said to be hearsay, but it is not. Further, it is quite inconsequential; it does not tend to incriminate anyone.

2. Then, objection was taken to a sentence in an affidavit of a special agent for the U.S. Customs Service. That sentence is to the effect that the agent was told on a relevant date that personnel aboard a U.S. Coast Guard cutter had seen two white male adults leave the "suspect sailing vessel" in an inflatable boat and that cutter personnel subsequently located the boat on the beach.

3. Counsel for the respondent sought to defend the admission of this material, but it was plainly inadmissible. Its point was to tie in with Cree's evidence that, when the applicant Mr Unkel and others on board the "Japy Hermes" saw a U.S. government vessel, they abandoned the "Japy Hermes" and went on shore. But the admission of this evidence did not matter, for the reason I have mentioned, namely that what was admissible was amply sufficient to found the magistrate's orders. Objections were taken to the admission of part of Cree's evidence, but none of them touched the essential aspects of his affidavit, deposing to the applicant's alleged involvement in the importation of a large quantity of marijuana to the United States. It should be added that an argument was advanced that Cree's evidence should have been disregarded because he was, on his own version, a party to the offence. The short answer to that is that since 1986 there has not been, in this State, any rule which prohibits conviction on the uncorroborated testimony of an accomplice: s.632 of the Criminal Code.
   Other Submissions

4. A variety of other contentions was advanced, apart from argument as to wrongful admission of evidence. It was said that there was no sufficient identification of the applicant as the person involved in the offence, but that point has absolutely no substance. It was also argued that, reading the statement setting out the description of the United States offence tendered under s.19(3)(c) with the evidence, it could be seen that the applicant could not be convicted in relation to two of the United States counts. The reason given was that those counts charged him as a principal offender, whereas he was merely, on the evidence adduced, an accessory. It is unclear why the counts mentioned are framed as they are; one possible reason is that, as under the Queensland Criminal Code, persons who assist in the commission of the offences in question may, perhaps, under United States law be charged with actually committing them. But the Act does not require that the magistrate form any opinion as to the relationship between the statement in sub-para.(i) and the statement in sub-para.(ii) of s.19(3)(c). There is nothing to suggest that he must be satisfied that, as a matter of United States law, the alleged acts or omissions mentioned in sub-para.(ii) would, if proved, constitute the offence described in sub-para.(i); I refer again to the view expressed in Zoeller's case, quoted above.

5. It does not appear that the magistrate was invited to, or did, take precisely that view of his function under the Act which is set out above in these reasons. But that is plainly not enough to enable the applicant to succeed; on the construction of the Act which I have adopted, the material before the magistrate fulfils the requirements of s.19(2) of the Act as well as those of s.11(5)(b) of the Act.

6. In the result, I have come to the conclusion that the magistrate's conclusion was correct. This Court's order will be that the orders of the magistrate in respect of Derk Anthony Unkel, made on 4 December 1989 under s.19(9) of the Extradition Act 1988, be confirmed.